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WAR  DEPARTMENT 
OFFICE  OF  THE  JUDGE  ADVOCATE  GENERAL 


A  DIGEST  OF  OPINIONS 

OF  THE 

JUDGE  ADVOCATES  GENERAL 
OF  THE  ARMY 


1912 


W  i '-:;  ,\ 


WASHINGTON 

GOVERNMENT  PRINTING  OFFICE 

1912 


War  Department, 
Document  No.  412. 
Ice  of  the  Judge  Advocate  General, 


War  Department, 
Office  of  the  Chief  of  Staff, 

Washington,  February  17,  1912. 
The  following  Digest  of  Opinions  of  the  Judge  Advocates  General 
of  the  Army,  prepared  under  the  direction  of  the  Judge  Advocate 
General,  United  States  Army,  by  Capt.  Charles  Roscoe  Rowland, 
Twenty-first  Infantry,  Assistant  to  the  Judge  Advocate  General,  is 
published  for  the  information  of  the  Army  and  Organized  Militia  of 
the  United  States. 
By  order  of  the  Secretary  of  War* 

Leonard  Wood, 
Major  General,  Chief  of  Staff. 

3 


240997 


JUDGE  ADVOCATES  GENERAL  OF  THE  ARMY. 


Name. 

From— 

To— 

Holt,  Joseph  1 

Sept.        3, 1862 
Dec.          1, 1875 
Feb.        J  8, 1881 
Jan.           3, 1895 
May        24, 1901 
Feb.        15, 1911 

Dec.       1, 1875 
Jan.       22, 1881 
Jan.         3, 1895 
May      21, 1901 
Feb.      14, 1911 

Dunn,  Wm.  M 

Swaim,  David  G 

Lieber,  G.  Norman  ^ 

Davis,  Geo.  B 

Crowder,  Enoch  H 

»  Capt.  J.  F.  Lee  was  appointed  "Judge  Advocate  of  the  Army"  under  section  4  of  the  act  of  Marcb 
2, 1849,  and  served  as  such  until  September  3, 1862. 

*  Gen.  Lieber  was  "Acting  Judge  Advocate  General"  from  July  25, 1884,  to  January  3, 1895. 

4 


PEEFAOE. 


This  Digest  includes  the  opinions  of  the  Judge  Advocates  General 
of  the  Aiiny  from  September  3,  1S62,  to  January  31,  1912,  inclusive. 

Practically  all  opinions  of  general  interest  are  presented.  Those 
are  omitted  whose  enunciated  principles  have  been  incorporated  into 
the  Regulations  or  into  the  Statute  law. 

No  opinion  is  presented  which  is  known  or  believed  to  have  been 
disapproved  by  the  Secretary  of  War. 

The  Subjects  in  the  Digest  are  arranged  alphabetically. 

The  arrangement  of  the  opinions  on  a  Subject  is  set  forth  in  a 
synopsis  which  precedes  those  opinions. 

As  shown  by  the  synopsis,  the  divisions  of  a  Subject  are  indicated 
by  Ron)an  Numerals  and  the  subdivisions  by  other  characters  in  the 
following  order: 

subject. 

ROMAN  NUMERALS -thus:  I 

CAPITAL  LETTERS thus:  A 

Arabic  Numerals thus:  1 

Small  Bold-Faced  Letters - thus:  a 

Arabic  Numerals  in  Parentheses , .  thus:  (1) 

Small  Italic  Letters  in  Parentheses thus:  (a) 

Arabic  Numerals  in  Brackets  - thus:  [1] 

Small  Italic  Letters  in  Brackets thus:  [a] 

CAPITAL  LETTERS  IN  BRACKETS,  thus:  [A] 

Each  paragraph  of  the  text  is  preceded  by  the  characters,  arranged 

in  order,  which  synoptically  indicate  the  division  and  each  subdivision 

of  the  Subject  which  includes  the  opinion  printed  in  the  paragraph. 

The  opinions  of  the  Judge  Advocate  General's  OflSce  are  cited  as 

follows: 

C.  for  Cards. 

P.  for  Letter  Press  Books. 

R.  for  Record  Books. 

Many  of  the  Subjects  consist  of  cross  references  only.     In  the  cross 

references  where  there  is  under  a  heading  more  than  one  reference  to 

a  Subject,  there  is  as  little  repetition  as  possible  of  the  characters 

which  synoptically  indicate  the  location  of  the  desired  opinion. 

Washington,  D.  C,  February  16,  1912. 

5 


DIGEST 


ABANDONING   CONTRACT. 

See  Contracts  XIV  H;  XXII  to  XXIII. 

ABROGATION. 

Of  lease.  See  Claims  VII  C  3. 

ABOLISHMENT   OF   OFFICE. 

See  Office  II  A  1;  V  A  7  e. 

ABSENCE   FROM   QUARTERS. 

See  Absence  II  B  2. 

See  A.  W.  XXXII  A;  LXII  D. 

ABSENCE. 
I.  WITH  LEAVE. 

A.  Not  Duty  Status Page  7 

B.  Officers. 

1.  Ordinary  leaves. 

a.  Indulgence  not  a  right. 

b.  Leave  and  duty  status  incompatible Page  8 

(1)  Disability  on  leave  not  in  line  of  duty. 

c.  Authority  to  grant. 

(1)  May  extend. 

(2)  May  not  give  nunc  pro  tunc. 

(3)  Chief  of  Engineers  may  not  grant  as  department  com- 

mander. 

d.  Granted  in  terms  of  months  and  days. 

e.  Leave  order  does  not  relieve  from  duty Page  9 

f.  Staff  officers  must  apply  to  War  Department  for  one  month  or 

more. 

g.  Extra  leaves. 

(1)  Professors  at  United  States  Military  Academy. 

(2)  Instructors  at  service  schools. 

(a)  Student  officers Page  10 

(3)  Officers  on  duty  with  civil  government  in   Philippine 

Islands. 
h.  Fail  to  sail  on  scheduled  transport. 
i.  Date  of  arrival  in  United  States. 
k.  Graduation  leave  interrupted  by  temporary  duty. 
1.  Relinquishment,  express  and  implied. 

m.  Rule  for  computing  leave  allowance Page  11 

(1)  Suspension  is  not  leave. 
n.  Commutation  of  quarters  on  leave. 

2.  Hunting  leaves. 


ABSENCE  I  A.  7 

I.  WITH  LEAVE— Continued. 

C.  Enlisted  Men. 

1.  Ordinary  pass. 

a.  Can  not  be  used  to  cover  desertion Page  12 

(1)  Attempt  to  board  departing  ship  while  on  pass. 

b.  Overstaying  pass  while  on  shore  leave. 

c.  Duty  status.    See  Absence  I  C  4  b. 

2.  Hunting  pass. 

3.  Fishing  pass. 

4.  Furlough. 

a.  Commander's  discretion  not  subject  to  revision Page  IS 

b.  A  pass  for  several  days  is  a  furlough.     Pass  and  furlough  dis- 

tinguished. 

c.  Uniform  not  required. 

d.  Employment. 

(1)  By  Quartermaster's  Department. 

(2)  In  civil  life. 

e.  Soldier  returns  after  furlough  has  expired. 

(1)  Commutation  paid  if  delay  excused. 

(2)  Not  paid  if  soldier  has  been  discharged Page  14 

i.  Service  for  retirement. 

(1)  Furlough  not  counted. 

(2)  In  service  beyond  the  seas  furlough  does  not  count  double. 
g.  Not  given  to  enable  soldier  to  accept  commission  as  scout  officer. 
h.  Return  transportation  on  commercial  liner  charged  against  soldier. 

D.  Nurse  Corps. 

1.  Leave  not  cumulative. 
n.  WITHOUT  LEAVE. 

A.  Officers. 

1.  Restrained  by  civil  authority. 

2.  Overstay  absence  with  leave. 

B.  Enlisted  Men. 

1.  Obligation  to  remain  and  to  return  to  organization Page  15 

2.  Thirty-second  article  of  war  refers  to  absence  from  post. 

3.  From  civil  hospital. 

4.  Restrained  by  force  majeur. 

a.  By  civil  authority. 

(1)  Turned  over  to  civil  by  military  authorities. 

b.  By  disability. 

5.  Soldier  requests  transportation  back  to  post. 

6.  Wliat  is  proper  station. 

7.  Restored  to  duty Page  16 

8.  No  service  no  pay. 

a.  Less  than  one  day  not  counted. 

b.  Acquittal  of  desertion  does  not  prevent  forfeiture  of  pay. 

9.  Time  lost  made  good. 

a.  In  hands  of  civil  authorities. 

10.  Nunc  pro  tunc  order  does  not  change  status. 

I  A.  Held,  that  an  officer  on  leave  of  absence  for  more  than  24 
hours  or  a  soldier  on  furlough  is  on  a  status  of  absence  with  leave  and 
so  can  not  be  regarded  as  occupying  a  status  of  duty.     C.  26949,  Jan. 

I  B  1  a.  A  leave  of  absence  is  an  indulgence  which  is  or  may  be 
granted  to  an  officer  at  the  pleasure  and  in  the  discretion  of  a  proper 


8  ABSENCE   I  B  1  b. 

military  superior.  Held,  that  as  it  is  not  a  privilege  created  by  law 
it  can  not  for  that  reason  ever  be  demanded  as  a  matter  of  legal 
right.i     C.  13346,  Dec.  8,  1903. 

I  B  1  b.  The  status  of  leave  of  absence  and  that  of  duty  are 
incompatible,  and  both  can  not  exist  at  the  same  time  in  respect  to 
the  same  person;  nor  is  there  an  intermediate  status,  or  connection, 
lying  between  them  which  partakes  of  some  of  the  incidents  of  both. 
If  one  exists,  the  other  necessarily  ceases  to  exist.  In  a  case  in  which 
an  officer  had  been  granted  leave  to  visit  the  United  States  by  a 
proper  commanding  general  in  the  Philippine  Islands,  and,  subse- 
quently was  placed  on  a  status  of  duty  by  the  Secretary  of  War  the 
superior  of  such  commander,  held,  that  as  both  conditions  could  not 
exist  together,  one  must  survive  and  one  must  be  destroyed.  As 
between  the  two,  it  seems  to  admit  of  no  doubt  that  the  status 
created  by  the  commanding  general  in  the  Philippine  Islands  must 
yield  to  that  created  by  the  Secretary  of  War.  C.  20917,  Jan.  12, 
1906;  23666,  Sept.  21,  1908. 

IB  1  b  (1).  An  officer  was  disabled  while  on  leave.  Held  that 
his  status  was  not  one  of  duty,  as  disability,  to  be  pensionable,  must 
have  been  incurred  in  Ikie  of  duty.  C.  25634,  Oct.  1,  1909;  19323, 
Feb.  24,  1906. 

I  B  1  c  (1).  A  post  commander  granted  10  days'  leave  of  absence 
to  an  officer  under  his  command  which  was  in  fact,  though  not  in 
form,  an  extension  of  a  leave  already  granted  by  a  higher  com- 
mander; held,  that  the  authority  of  a  commanding  officer  of  a  post 
in  the  matter  of  leaves  of  absence  to  officers  is  fully  set  forth  in 
(paragraph  49)  the  Army  Regulations  (1910)  and  does  not  extend 
to  the  granting  of  a  leave  in  continuation  of  one  previously  granted 
by  superior  authority;  such  power  being  restricted  by  regulation  to 
the  officer  by  whom  the  original  leave  was_  granted  or,  when  the 
indulgence  asked  for  is  beyond  his  power  to  grant,  to  the  next  higher 
commander.     C.  17491,  Feb.  3,  1905;  17440,  Jan.  24,  1905. 

IB  1  c  (2).  The  Army  Regulations  vest  in  certain  military  com- 
manders the  power  to  grant  leaves  of  absence;  held,  that  the  authority 
so  vested  in  the  several  classes  of  military  commanders  is  one  which, 
from  its  nature,  is  operative  in  futuro,  and  leaves  which  they  are 
authorized  to  grant  are  to  have  prospective  operation.  None  of  the 
regulations  above  referred  to  confer  power  to  act  retrospectively,  or 
to  grant  a  leave  as  of  a  prior  date,  or  to  cause  a  leave  to  become 
operative  as  to  time  already  ])assed.  Such  an  undertaking,  of  which 
that  described  in  the  foregoing  statement  of  facts  is  an  example, 
involves  a  resort  to  nu7ic  pro  tunc  procedure,  which  has  no  applica- 
tion in  the  execution  of  regulations  respecting  leaves  of  absence; 
which,  from  the  nature  of  the  case,  can  only  operate  in  the  future. 
a  17440,  Jan.  24,  1905;  21294,  Mar.  13,  1907. 

I  B  1  c  (3).  Held,  that  the  Chief  of  Engineers  was  not  a  '^  depart- 
ment commander"  and  was  therefore  without  authority  to  grant 
leaves  of  absence  to  officers  stationed  at  Willets  Point,  N.  Y.  C.  15, 
July  10,  1894. 

I  B  1  d.  Paragraph  (58)  Army  Regulations  (1910)  provides  that 
'leaves  of  absence  will  be  granted  in  terms  of  months  and  days." 
Held,  where  a  leave  for  a  certain  number  of  days  less  than  a  month 

*  Leave  accrued  to  a  volunteer  officer  can  not  be  used  by  him  if  appointed  to  the 
Regular  Army.     VIII  Comp.  Dec.  192;  Sept.  25,  1901. 


ABSENCE   I  B  1  e.  9 

is  granted,  and  is  subsequently  extended  for  a  specific  number  of 
days,  that  tliere  is  no  autliority  for  converting  the  same  into  months, 
the  operation  of  the  leave  being  measured  in  terms  of  days.  G.  19284, 
May  SI,  1906. 

I  B  1  e.  An  order  granting  leave  of  absence  to  an  officer  stationed 
at  a  military  post  does  not  operate  p7'oprio  vigore  to  relievo  the  officer 
from  duty  at  the  post,  whicli  is  a  matter  falling  within  the  jurisdic- 
tion of  the  post  commander,  whose  duty  it  is  to  see  that  a  successor 
is  appointed  to  take  over  the  money  and  property  accountability  of 
the  officer,  if  he  has  any,  and,  where  special  duties  are  irnposed  in 
orders  of  the  post  or  department  commanders,  that  an  officer  has 
been  designated  to  reUeve  him.     C.  18756,  Nov.  8,  1905. 

I  B  1  f.  Paragraph  (51)  Army  Regulations  (1910)  requires  that 
applications  for  leaves  of  absence  for  staff  officers  for  more  than  one 
month  shall  be  forwarded  for  the  action  of  the  War  Department. 
The  administrative  principle  which  underlies  the  regulation  is  this :  If 
a  staff  officer  is  to  be  granted  leave  for  more  than  one  month  it  may 
be  necessary  to  replace  him,  either  permanently  or  temporarily,  by 
another,  and  this  fact  gives  rise  to  a  number  of  considerations,  as  to 
which  the  head  of  the  staff  department  to  which  the  officer  belongs 
should  be  consulted;  another  officer  may  not  be  available  at  the 
moment;  the  tour  of  the  officer  who  desires  leave  may  be  approaching 
its  close;  he  may  be  engaged  in  the  execution  of  most  important 
duties,  and  there  may  be  difficulty  in  finding  a  competent  line  officer 
to  replace  him ;  if  he  is  a  bonded  officer  it  may  be  difficult,  and  in  some 
cases  impossible,  to  replace  him  by  an  officer  who  is  not  bonded. 
These  are  some  of  the  matters  in  respect  to  which  the  opinion  of  the 
head  of  the  staff  department  has  to  be  ascertained  before  it  can  be 
determined  whether  the  indulgence  can  be  granted  without  detri- 
ment to  the  public  interest.  This  view  has  regulated  the  practice  of 
the  department  for  nearly  70  years.     0.  17037,  Oct.  21,  1904. 

IB  1  g  (1).  Under  section  1330,  R.  S.,  professors,  assistant 
professore,  instructors,  and  other  officers  of  the  Military  Academy 
may  be  granted  leaves  of  absence  by  the  superintendent  under 
regulations  prescribed  by  the  Secretary  of  War  for  the  entire  period 
of  the  suspension  of  the  ordinary  academic  studies.  Held,  that 
such  leave,  if  not  taken  during  the  suspension  of  the  ordinary 
academic  studies,  at  the  time  of  the  summer  encampment,  may  be 
taken  by  such  officers  at  such  other  time  during  the  academic  j^ear 
as  their  services  may  be  spared  for  that  purpose.  Held,  further,  that 
it  must  be  taken  during  the  leave  year  in  which  it  accrues,  as  such 
leave  is  not  cumulative.     C.  27492,  Nov.  14,  1910. 

I  B  1  g  (2).  The  act  of  March  23,  1910  (36  Stat.  244),  granting 
leaves  of  absence  to  instructors  in  the  several  service  schools  during 
remission  of  academic  duties  is  conceived  in  the  same  sense  as  section 
1330  of  the  Revised  Statutes,  which  grants  similar  leave,  without 
deduction  of  pay  or  allowances,  to  the  corresponding  class  of  officers 
at  the  Military  Academy.  Held  that  the  operation  of  the  act  extends 
to  the  officers  composing  the  ''academic  staff''  as  distinguished  from 
the  ''military  staff"  of  the  several  educational  institutions  established 
by  statute  or  regulation  for  the  instruction  of  commissioned  officers 
or  enlisted  men  (C.  17388,  May  9, 1910),  but  does  not  include  student 
officers  nor  officers  on  duty  with  organizations  composing  the  garri- 
sons doing  post  duty  only.  C.  17388,  May  3  and  Dec.  20,  1910; 
18085,  June  27,  1911, 


10  ABSENCE  I  B  1  g  (2)  (a). 

Held  also  that  veterinarians  on  duty  as  instructors  at  the  service 
schools  are  entitled  to  the  benefit  of  the  act.     C.  17388,  May  26, 1910. 

I  B  1  g  (2)  (a).  Held,  in  view  of  the  peremptory  requirements  of 
section  1265  of  the  Revised  Statutes,  that  student  officers  relieved 
from  duty  at  the  War  College  and  the  several  service  schools  can  not 
be  placed  on  an  extra-leave  status  with  full  pay  from  the  date  of  their 
graduation  until  the  31st  of  August  following,  unless  the  order  reliev- 
ing such  officers  contains  the  requirement  that  the  delays  in  reporting 
for  duty,  therein  authorized,  are  for  the  convenience  of  the  Govern- 
ment.i     C.  18286,  July  12,  1905. 

I  B  1  g  (3).  An  officer  of  the  Army  on  detached  service  with  the 
civil  government  in  the  Philippine  Islands  was  granted  a  vacation  by 
that  Government.  Held,  that  as  the  officer  was  serving  by  authority 
of  law  with  the  Philippine  Government,  he  was  not  subject  to  Army 
control  during  his  incumbency  of  that  position,  and  his  status  in  re- 
spect to  duty  is  not  determined  by  the  Army  authorities,  by  whom 
he  should  be  regarded  as  occupying  a  status  of  duty  during  the  entire 
period  of  his  detachment  as  an  inspector  of  Philippine  Constabulary. 

The  mere  fact  that  he  was  permitted  to  be  absent  from  his  post  of 
duty  in  the  Army  by  the  proper  authority  did  not,  in  the  opinion  of 
this  office,  create  a  status  of  leave  of  absence  of  which  the  department 
should  take  official  cognizance.  C.  22lfl0,  Nov.  21, 1907;  24^36,  Dec. 
21  and  Dec.  23,  1908. 

I  B  1  h.  Where  an  officer  on  leave  of  absence  is  unable  to  reach  a 
port  of  sailing  before  the  departure  of  a  particular  transport  and  is 
assigned  to  a  transport  sailing  at  a  subsequent  date,  his  leave  status 
may  be  extended,  or  he  may  be  placed  on  temporary  duty,  or  upon  a 
status  of  awaiting  orders  for  the  convenience  of  the  Government,  but 
the  status  last  named  is  not  demandable  as  of  right,  as  its  creation 
rests  in  the  discretion  of  the  Secretary  of  War,  upon  a  showing  of  facts 
sufficient  to  warrant  its  establishment  in  a  particular  case.  G.  23030 j 
Sept.  30,  1906;  273^6,  Oct.  12,  1910. 

I  B  1  i.  The  date  of  arrival  in  the  United  States,  within  the  mean- 
ing of  the  act  of  March  2,  1901  (31  Stat.  903),  is  the  date  when  the 
transport  has  reached  the  terminus  of  its  voyage ;  that  is,  when  it  has 
reached  the  dock  where  the  passengers  and  cargo  can  be  discharged. 
C.  18286,  July  12,  1905;  25592,  Sept.  20,  1909. 

I  B  1  k.  The  act  of  December  20,  1886  (24  Stat.  351),  authorizes 
a  graduation  leave  in  favor  of  those  cadets  who  graduate  from  the 
Military  Academy  and  who  are  commissioned  second  lieutenants  in 
the  Army.  By  uniform  practice  such  leaves  have  begun  immediately 
after  graduation  and  continued  three  months.  Held,  in  accordance 
with  the  rule  which  is  applied  in  like  cases  to  other  officers  when  on 
regular  leaves  of  absence,  that  if  an  officer  while  on  graduation  leave 
should  be  ordered  to  temporary  duty,  the  order  should  recite  that  the 
officer's  leave  is  temporarily  suspended  and  that  on  its  completion  he 
will  revert  to  a  leave  status.  C.  18286,  July  12,  1905;  133^6,  Apr. 
17,  1908. 

I  B  1  1.  The  relinquishment  of  a  leave  of  absence  may  be  express 
or  implied.  Held  that  it  is  express  when  made  in  the  form  of  a  written 
instrument,  to  the  completion  of  which  an  acceptance  of  such  relin- 
quishment by  proper  superior  authority  is  necessary,  and  implied 
when  the  officer  reports  at  his  proper  post  for  duty  or  at  any  other 

1  See  Cir.  No.  35,  W.  D.,  July  26,  1905. 


ABSENCE  I  B  1  m.  11 

post  designated  for  that  purpose  by  proper  superior  authority  on  a 
dat^e  previous  to  the  expiration  of  his  leave.     (J.  273A6,  Oct.  12,  1910. 

I  B  1  m.  Held  that  when  an  officer  is  granted  a  leave  of  absence 
under  the  act  of  July  29,  1876  (19  Stat.  102),  it  shall  be  charged  to 
the  year  or  years  in  which  it  first  accrued  in  order  of  priority  of  date, 
and  any  balance  of  accrued  leave  remaining  shall  stand  to  his  credit 
for  future  leaves;  provided  no  credit  shall  stand  longer  than  four 
years  from  date  of  accruing.*     P.  /^Jf.,  271,  Dec.  18,  1890. 

IB  1  m  (1).  Held,  in  estimatmg  the  period  of  the  leave  of 
absence  to  which  a  certain  officer  would  be  entitled  under  the  pro- 
visions of  section  1265,  R.  S.,  and  the  act  of  Jul3r29,  1876,  without 
incurring  a  deduction  from  his  pay,  that  a  period  during  which 
he  was  permitted  to  be  absent  rrom  his  post,  while  under  a  sen- 
tence of  suspension  from  rank,  was  not  properly  to  be  taken  into 
account;  sucn  absence  not  being  an  absence  of  an  '^ officer  on  dutj" 
in  the  sense  of  the  act  of  1876,  but  an  absence  pending  the  execution 
of  a  sentence  which,  during  its  term,  separated  the  officer  from  all 
duty.     R.  42,  306,  May,  1879. 

I  B  1  n.  The  provision  of  the  act  of  July  29,  1876,  to  the  effect 
that  officers  shall  enjoy  the  leaves  of  absence  accorded  by  the  act, 
"without  deduction  of  pay  or  allowance,"  held  to  entitle  such  officers 
as  are  drawing  commutation  of  quarters  while  on  duty  at  a  station  to 
receive  their  allowance  for  quarters,  as  well  as  their  full  pay  for  and 
during  the  period  of  absence.  The  word  ''allowance"  must  mean 
something — must  mean  some  emolument  distinct  from  pay.  R.  43, 
277,  Apr.  7,  1880;  C.  13863,  Dec.  24,  1902,  and  Jan,  21,  1903. 

I  B  2.  The  Army  Regulations  ^  provide  that  under  certain  condi- 
tions ''permission  to  hunt  will  not  be  considered  as  a  leave  of  absence." 
Circular  No.  35,War  Department,  July  26,  1905,  published  a  decision 
of  the  Secretary  of  War  to  the  effect  that  all  authorized  absence  from 
duty  except  on  account  of  sickness  or  wounds  counts  as  absence  with 
leave  unless  showTi  to  be  for  the  convenience  of  the  Government. 
Held  that  although  hunting  leaves  have  not  been  looked  upon  as 
ordinary  leaves,  but  rather  expeditions  for  the  special  improvement 
of  the  officer  and  for  the  acquisition  of  topographical  information  for 
the  Government,  they  must,  since  the  publishing  of  the  above  circular, 
be  considered  as  ordinary  leaves  unless  it  is  shown  in  each  specific 
permission  that  the  leave  to  hunt  is  for  the  convenience  of  the 
Government.     C.  18487,  Aug.  29,  1905. 

I  C  1.  By  custom  a  soldier  is  permitted,  when  not  required  for 
specific  duties,  to  be  absent  for  a  brief  period  of  time  by  authority  of 
his  commanding  officer.  Such  a  pass  generally  recites  that  it  author- 
izes the  man  to  go  to  a  particular  place,  and  also  that  he  may  be  absent 
until  a  certain  specified  hour,  but  whether  it  recites  this  or  not  it  is 
always  given  for  a  lawful  purpose  only  and  does  not  per  se  remove 
the  soldier  from  a  duty  status.  ((7.  23666-D,  Sept.  21,  1909;  24393, 
May  7  and  June  1 ,  1910;  26949,  June  23, 1910.)  Held  that  it  answers  a 
double  purpose — first,  it  is  authority  in  the  post  or  camp  for  a  tempo- 
rary absence  of  a  member  of  the  garrison;  second,  it  operates  to  pro- 
tect the  man  against  molestation  while  outside  the  limits  of  his  post 
so  long  as  he  does  not  violate  the  express  or  implied  conditions 
imposed  by  the  authority  who  granted  the  pass.     No  vested  rights 

^  See  General  Orders,  No.  77,  War  Department,  series  1886. 
2  Par.  65,  Kd.  1910,  Army  Regulations. 


12  ABSENCE  1  C  1  a. 

pass  in  the  operation  of  such  an  instrument.  It  can  be  revoked  by  the 
authority  which  granted  it.  It  also  ceases  to  run  as  a  protection 
against  molestation  or  apprehension  so  soon  as  the  soldier  violates  the 
conditions  of  the  pass,  C.  1397,  Aug,  5,  1908  ^;  23666,  Dec,  8,  1909, 
and  Feb.  3,  1911.  Held,  further,  that  a  soldier  who  is  absent  on 
pass  which  authorizes  his  absence  until  a  certain  hour  can  not 
afterwards  rely  on  his  pass  as  authority  for  being  absent  at  a  later 
hour.  Held  also  that  a  soldier  so  absent  on  a  pass  which  authorizes 
him  to  be  absent  until  a  certain  hour,  which  limit  of  time  permits  Of  a 
visit  to  a  near-by  town,  viz.  A,  can  not  rely  on  his  pass  as  a  protection 
at  any  time  before  that  fixed  for  its  termination,  should  he  be  appre- 
hended at  a  point  more  distant,  viz,  B,  from  his  station  than  A,  and 
while  speeding  away  as  rapidly  as  possible,  as  the  pass  does  not  cover 
his  absence  under  those  conditions.  G.  1397,  Aug.  5,  1908;  2658,  Oct. 
16,  1896;  29211,  Oct.  31,  1911. 

I C  1  a.  A  soldier  is  on  pass.  The  evidence  is  conclusive  that  he  is 
using  the  pass  for  the  purpose  of  separating  himself  from  the  service 
with  the  intention  of  not  returning  thereto.  Held  that  the  pass  does 
not  protect  him  from  apprehension  as  a  deserter,  as  the  pass  was  not 
granted  for  an  unlawful  use  and  can  not  be  so  used.  0. 1397,  Aug.  5, 
1908. 

I  C  1  a  (1).  Should  a  soldier  obtain  a  pass  good  until  4  o'clock 
p.  m.,  and  at  12  o'clock  noon  board  and  take  passage  on  a  steamer 
which  is  scheduled  to  sail  at  1  o'clock  p.  m.  for  a  foreign  and  distant 
point,  lield  that  he  can  not  rely  on  his  pass  for  protection  should  he 
be  arrested  as  a  deserter  just  before  the  steamer  sails.  0.  1397, 
Aug.  6,  1908. 

I C  1  b.  An  enlisted  man  en  route  by  transport  from  Manila  to  San 
Francisco  overstayed  his  pass  at  Nagasaki,  Japan,  and  arrived  at  the 
dock  after  the  transport  had  sailed.  He  immediately  reported  to  the 
depot  quartermaster  at  that  station,  by  whom  he  was  quartered  and 
subsisted  until  he  was  placed  on  board  the  next^United  States  trans- 
port bound  for  San  Francisco.  Held  that  at  the  expiration  of  his 
authorized  time  on  pass  his  status  became  that  of  absence  without 
leave,  and  that  his  absence  without  leave  terminated  when  he  reported 
to  the  depot  quartermaster  at  the  place  from  which  he  had  gone  on 
pass  and  was  given  a  status  by  him  awaiting  transportation.  C. 
20006,  July  9,  1906;  29211,  Oct.  31,  1911. 

I  C  2.  The  ''hunting  pass"  authorizes  an  absence  of  more  than  24 
hours  from  the  post,  and  is  given  upon  the  assumption  that  the 
soldier  while  on  this  pass  is  actually  engaged  in  hunting  game,  thereby 
acquiring  skill  in  the  use  of  firearms.  Held  that  such  a  pass  does  not 
permit  a  soldier  to  go  to  a  point  at  a  considerable  distance  from  his 
post,  and  that  while  on  such  a  pass  he  is  not  removed  from  a  status 
of  duty.     C.  23666-1,  Feh.  3,  1911. 

I  C  3.  Enlisted  men  of  the  Coast  Artillery,  because  of  their  duties 
in  connection  with  mine  planting,  are  required  to  understand  the 
handling  of  steam  launches  and  other  small  boats.  Held,  that  a '  'fish- 
ing pass"  may  be  given  to  a  Coast  Artillery  man  which  will  permit 
him  to  be  absent  for  more  than  24  hours  on  a  duty  status,  but  will  not 
permit  him  to  go  to  a  considerable  distance  from  his  post.  G. 
23666-1,  Feb.  3,1911. 

*  See  Circular  66,  War  Department,  1908,  which  publishes  this  opinion. 


ABSENCE   I   C   4   a.  13 

I  0  4  a.  Tlie  eleventh  article  of  war  does  not  apply  to  a  large 
number  of  cases  in  which  the  applicant  is  not  under  the  immediate 
command  and  control  of  the  regimental  commander;  these  are  pro- 
vided for  in  paragraphs  105  to  112,  inclusive  Army  Regulations  of 
1908  (106  to  113,  A.  R.,  1910  ed.);  where,  however,  the  issue  of  the 
furlough  falls,  under  law  and  regulation,  within  the  exclusive  juris- 
diction of  the  regimental  commander,  his  exercise  of  discretion  in 
respect  thereto  is  not  subject  to  revision  by  higher  authority.  But 
where  an  application  is,  tor  any  reason,  brought  within  the  juris- 
diction of  a  liigher  commander,  on  account  of  the  length  of  the  fur- 
lough asked  for,  or  because  the  applicant  desires  to  leave  the  depart- 
ment in  which  he  is  stationed,  or  otherwise,  the  application  should  go 
to  the  higher  commamler  to  whom  it  is  addressed  with  such  expres- 
sion of  opinion  on  the  part  of  the  regimental  commander  as  is  required 
by  paragraph  791  of  the  Army  Regulations  (799,  A.  R.,  1910  ed.). 
C.  15841,  Jan.  30,  1904. 

I  C  4  b.  The  terms  ''furlough"  and  ''pass"  are  not  synonymous. 
It  is  an  essential  incident  in  the  operation  of  a  pass  that  the  bene- 
ficiary of  the  permit  is  not  removea  from  the  list  of  men  "present  for 
duty,"  his  permission  to  be  absent  for  a  short  time  being  of  such  a 
character  as  not  to  interfere  with  the  performance  of  the  more  im- 
portant duties  for  which  he  is  expected  to  hold  himself  in  constant 
readiness.  In  determining  what  limits  of  time  and  place  shall  be 
regarded  as  falling  within  the  operation  of  a  pass,  the  foregoing  con- 
ditions should  be  borne  in  mind.  The  soldier  should  be  carried  on  the 
rolls  and  returns  as  present  for  duty,  the  operation  of  the  pass  or  other 
form  of  permission  to  be  absent  should  be  restricted  to  the  vicinity 
of  the  post,  and  its  duration  should  not  extend  over  a  period  of  24 
hours.  The  character  of  the  instrument  in  the  operation  of  which 
the  soldier  absents  himself  should,  therefore,  be  determined  by  the 
duration  of  the  absence  and  the  status  created,  rather  than  by  its 
name.  If,  for  example,  an  instrument  be  called  a  "pass"  which 
authorizes  a  soldier  to  be  absent  for  several  days  and  to  visit  a  point 
at  a  considerable  distance  from  the  station  of  his  company,  it  should 
be  regarded  as  a  "furlough,"  although  it  may  be  in  form  a  "pass." 
C.  24293,  Oct.  4,  1910;  23666,  Sept.  8, 1910;  15841,  Jan.  29,  1904. 

I  C  4  c.  There  is  no  regulation  requiring  an  enlisted  man  to  wear 
his  uniform  while  on  furlough.  ^  C.  5408,  Nov.  30,  1898. 

I  C  4  d  (1).  Held,  that  there  is  no  statute  which  precludes  a  soldier 
on  furlough  from  being  employed  by  the  Quartermaster's  Department. 
C.  2607,  Sept.  16,  1896,  and  May  6,  1908. 

I  C  4  d  (2).  Held,  that  an  enlisted  man  on  furlough  may  accept 
employment  in  civil  life.  C.  5005,  Sept.  20,  1898;  5408,  Nov.  30, 
1898. 

I  C  4  e  (1).  A  soldier  on  furlough  applied  for  transportation  in 
sufficient  tinae  so  that  he  could  report  at  his  station  on  or  before  the 
last  day  of  his  furlough.     Due  to  the  delay  of  the  Government,  trans- 

Eortation  was  not  furnished  promptly.  He  did  not  report  until  after 
is  furlough  had  expired.  Held,  that  the  period  of  time  between  the 
last  day  of  his  furlough  and  the  date  of  his  actual  reporting  for  duty 
at  the  station  of  his  company  should  be  excused  by  proper  authority. 
Held  further,  that  if  his  delay  should  be  excused  he  would  not  forfeit 


14  ABSENCE   I   C   4  e  (2). 

the  commutation  of  rations  due.*  C.  3988,  May  13,  1898;  4758, 
Aug.  10,  1898;  7211,  Oct  26,  1899;  20203,  Aug.  11,  1906.^ 

I  C  4  e  (2).  Held  that  a  delay  in  reporting  at  the  expiration  of  a 
soldier's  furlough  may  not  be  excused  after  the  soldier  has  been  dis- 
charged.    C.  7020,  Sept  13,  1899. 

I C  4  f  (1 ) .  Held  that  the  time  sj)ent  by  an  enlisted  man  on  furlough 
should  not  be  deducted  in  computing  the  30  years'  service  necessary 
for  retirement.     0.  8696,  Aug.  4,  1900. 

I  C  4  f  (2) .  Held  that  a  soldier  serving  an  enlistment  in  the  posses- 
sions beyond  the  seas  can  not  count  absence  on  furlough  douole  for 
the  purpose  of  retu-ement.     G.  26995,  July  29,  1910. 

I  C  4  g.  Held  that  furloughs  for  an  indefinitely  long  period  of  time 
may  not  be  granted  to  enlisted  men  in  order  that  they  may,  during 
such  furloughed  period,  accept  commissions  as  officers  of  Phihppine 
Scouts  and  serve  as  such.     u.  10843,  July  12,  1901. 

I C  4  h.  An  enlisted  man  on  furlough  in  the  United  States  from  one 
of  the  possessions .  lying  beyond  the  seas  reported  at  a  post  and 
requested  return  transportation  to  his  station.  He  was  given  an 
order  for  transportation  on  a  commercial  liner.  Held  that  such 
transportation  would  be  a  proper  charge  against  the  soldier's  pay, 
and  tnat  the  post  commander's  order  would  nat  properly  carry  with 
it  transportation  at  the  expense  of  the  Government  in  sucn  a  case.  0. 
27100,  Aug.  1,  1910. 

I  D.  Section  19  of  the  act  of  Februaiy  2,  1901,  provides  inter  alia 
that  nurses  ''may  be  granted  leaves  of  absence  for  thirty  days,  with 
pay,  for  each  calendar  year."  (31  Stat.  751.)  Held  that  nurses  ap- 
pomted  under  the  above  act  are  a  component  part  of  the  United 
States  Army  and  are  not  civilian  employees  under  contract  {C.  10160, 
Apr.  5,  1901);  and  that  they  may  not  be  granted  cumulative  leaves. 
C.  10160,  May  31,  1902. 

II  A  1 .  An  officer  of  the  Army  in  the  hands  of  the  civil  authorities 
was  convicted  by  the  civil  courts.  Held  that  he  was  absent  without 
leave. ^  Held  further,  in  the  event  of  an  appeal,  that  the  disposition 
of  the  case  should  be  awaited  before  it  could  be  determined  whether 
his  absence  was  excused  ^  or  unavoidable.*     C.  17667,  June  19,  1905. 

II  A  2.  In  view  of  the  requirement  of  section  1265  of  the  Revised 
Statutes,  that  an  officer  absent  without  leave  shall '  'forfeit  all  pay  and 
allowances  unless  the  absence  be  excused  as  unavoidable  ";  held  that 
the  power  to  decide  whether  the  absence  of  an  officer,  in  excess  of  a 
leave  previously  granted,  is,  or  is  not,  to  be  excused  as  unavoidable, 
vests,  by  reasonable  implication,  in  the  officer  who  is  empowered  by 
regulations  to  grant  the  leave  which,  for  some  reasons,  has  been  over- 
stayed, as  an  incident  of  his  authority  to  grant  leaves  of  absence  to  offi- 
cers under  his  command.  From  this  it  reasonably  follows  that,  if  the 
absence  be  in  excess  of  a  particular  commander's  power  in  the  premises, 
the  power  to  excuse  passes  to  the  next  higher  commander,  and  the  dis- 
cretion created  by  the  statute  must  be  exercised  by  him,  and  his  con- 
clusions as  to  its  character,  as  avoidable  or  unavoidable,  are  final  and, 

*  See  V.  Comp.  Dec,  941,  for  case  of  soldier  granted  furlough  in  United  States  until 
his  regiment  should  arrive  from  the  Philippines. 

2  See  Dodge  v.  U.  S.,  33  Ct.  Cls.,  28. 

3  An  officer's  absence  without  leave  may  be  excused.  (See  Smith  v.  U.  S.,  23  Ct. 
Cls.,  452,  Nov.  5,  1888.) 

♦See  XI  Comp.  Dec,  659,  Apr.  29,  1905,  and  755,  June  14,  1905. 


ABSENCE   II   B   1.  15 

unless  appealed  from,  are  not  subject  to  review  by  higher  authority.^ 
C.  2076Jf,  Dec.  U,  1906. 

II  B  1 .  The  articles  of  war  which  prescribe  the  duties  of  the  soldier 
recj^iiire  him  not  only  to  remain  habitually  with  the  organization  of 
which  he  is  a  member  but,  when  absent  therefrom  without  authority, 
for  any  cause,  to  endeavor  constantlv  to  return  to  his  duty,  for,  in  the 
absence  of  such  endeavor,  the  mere  lapse  of  time  operates  to  establish 
that  animus  non  revertendi  which,  coupled  with  unauthorized  absence, 
causes  it  to  ripen  into  the  offense  of  desertion.  C.  12524^  Apr,  30, 
1902;  1397,  June  20,  1908;  3694,  Jan.  4,  1910. 

II  B  2.  An  unauthorized  absence  from  the  quarters  only,  as  from 
11  p.  m.  inspection,  held  not  properly  chargeable  under  the  32d 
Article.  This  article  contemplates  an  absence  from  the  soldier's 
''troop,  battery,  company,  or  detachment" — an  absence  from  the 
post  or  command.2    P. 47, 133,  May, 1891;  49, 100,  and  171,  Sept., 1891. 

II B  3.  A  soldier  undergoing  treatment  in  hospital  absented 
himself  without  leave  and,  instead  of  reporting  for  duty  with  his 
company  at  Jacksonville,  Fla.,  went  to  Jonesville,  Va.,  where  he  was 
under  the  care  of  a  local  physician.  Held  that  the  status  of  absence 
without  leave,  thus  established,  was  not  terminated  or  interrupted 
by  his  sickness  at  Jonesville,  Va.,  but  that  the  status  of  absence 
without  leave  continued  until  the  soldier's  muster  out  of  the  Volunteer 
service.  O.  9786,  Feb.  8,  1901;  12464,  June  8,  1902;  15942,  Mar. 
17,1904. 

II  B  4  a.  Where  a  soldier  absent  with  leave  is  arrested  hj  the 
civil  authorities,  tried,  and  convicted  and,  due  to  the  restraint  so 
imposed,  fails  to  report  at  the  expiration  of  his  furlough,  or  pass,  he 
passes  to  the  status  of  absence  without  leave  from  the  date  of  such 
expiration.  C.  18764,  June  21,  1910;  3694,  Jan.  4,  1910;  12524, 
Apr.  30,  1902.  Where  a  soldier  is  held  by  the  civil  authorities,  the 
holding  should  be  regarded,  if  he  be  not  convicted  of  an  offense,  as 
duress ;  if  convicted  of  such  offense  the  duress  is  held  to  have  been  due 
to  the  fault  of  the  soldier.     C.  16966,  Mar.  31,  1909. 

II  B  4  a  (1).  When  a  soldier  is  turned  over  to  the  civil  authori- 
ties on  service  of  the  proper  process,  held  that  prosecution  wiU  not 
lie  for  absence  without  leave  during  the  time  that  he  is  away  being 
tried  or  serving  sentence.     C.  I8O4I,  Sept.  7,  1905. 

II  B  4  b.  An  officer  or  soldier  while  absent  without  leave  incurs  a 
disability  which  prevents  his  return  to  duty.  Held  that  his  status  of 
absence  without  leave  is  not  changed.     C.  20974,  Nov.  2,  1908. 

II  B  5.  A  soldier  absent  without  leave  who  reports  to  a  quarter- 
master for  transportation  back  to  his  post  does  not  by  such  report 
change  his  status  as  an  absentee  without  leave.  G.  11778,  Dec.  19, 
1901;  12967,  July  21,1902. 

II  B  6.  Where  expense  is  incurred  in  transporting  a  soldier  absent 
without  authority  to  his  proper  station,  held  that  the  proper  station 
of  a  soldier  is  that  at  which  his  company  or  detachment  is  serving. 
The  station  of  a  soldier  so  returned  may  be  changed  by  the  War 
Department,  in  which  case  the  new  station  so  assigned  is  the  proper 
station  of  the  soldier  within  the  meaning  of  the  regulations.  C.  1 7775, 
Apr.  4,  1905. 

^  Cir.  No.  5,  War  Dept.,  1905. 

2  Capture  by  the  enemy  while  absent  without  leave  gives  a  soldier  a  duty  status. 
Vol.  Ill,  Digest  2d  Comp.  Dec,  p.  9,  Jan.  26,  1888. 


16  ABSENCE   II  B  *7. 

II  B  7.  Wliere  an  officer*  or  soldier  on  his  return  from  an  unau- 
thorized absence  is,  in  consequence  of  his  report  of  the  facts  and 
circumstances  of  such  absence,  not  proceeded  against  by  his  proper 
commander  for  the  mihtary  offense  involved,  but  is  by  the  latter 
placed  upon  full  duty,  such  action,  imder  the  general  custom  of  the 
service,  may  be  pleaded  as  a  good  defense,  if  the  officer  or  soldier  be 
subsequently  brought  to  trial  for  the  unauthorized  absence.  B.  2, 
376,  and  391,  May,  1863. 

II  B  8  a.  An  enlisted  man  forfeits  his  pay  and  allowances  dur- 
ing the  period  of  an  absence  without  leave,  as  provided  in  Army 
Regulations.  During  such  absence  he  renders  no  service,  and  there- 
fore earns  neither  pay  nor  allowances.  C.  12168,  Mar.  10,  1902; 
3694,  July  9,  1910.  The  forfeiture  is  thus  by  operation  of  law,  and 
accrues  independently  of  the  result  of  a  trial  for  the  mihtary  offense 
involved  in  the  unauthorized  absence.  One  of  the  purj)oses  of  the 
muster  and  pay  rolls  is  to  show  what  service  the  soldier  renders, 
and  if  they  show  that  he  has  rendered  none  during  a  particular  period 
by  reason  of  an  absence  without  leave,  he  is  not  entitled  to  pay  and 
allowances  during  such  period.^  P.  36,  303,  Nov.,  1889;  57,  2^0, 
Jan.,  1893;  C.  14-^4,  June,  1895.  For  an  absence  without  leave  of 
less  than  a  day  the  soldier  may,  of  course,  be  tried  by  court-martial 
and  sentenced  to  suffer  a  forfeitiire,  but  such  absence  should  not  be 
noted  on  the  muster  and  pay  rolls.  P.  47, 399,  June,  1891;^  C.  12577, 
June  17,  1902.  The  pay  so  forfeited  should  cover  the  entire  period 
of  his  absence  without  leave.  0.  12967,  July  15, 1902;  13808,  Dec.  16, 
1902;  17492,  Feh.  3,  1905;  17768,  Apr.  1, 1905;  18934,  Dec.  28, 1905. 

II B  8  b.  A  soldier  who  had  been  absent  without  leave  from  March 
7  to  August  5,  1892,  was  tried  for  desertion  and  acquitted,  and  was 
not  convicted  of  absence  without  leave.  Held,  that  so  far  as  any  mili- 
tary offense  is  concerned  his  record  is,  as  to  this  matter,  absolutely 
clean ;  but  his  record  shows  that  he  was  guilty  of  a  breach  of  contract 
in  failing  to  furnish  the  services  he  had  contracted  to  furnish,  and  this 
failure  was  caused  by  his  being  absent  without  authority.  That  was 
a  fact,  and  the  rolls,  the  object  of  which  is  to  give  the  facts  with  refer- 
ence to  this  contract,  would  be  false  if  they  did  not  show  his  failure 
to  earn  his  pay,  by  reason  of  breach  of  contract  by  absence  without 
authority.  This  indicates  his  status  in  this  respect.  0.  14^4,  June 
28,  1895. 

II  B  9.  Under  the  act  of  May  11,  1908  (35  Stat.  110),  an  enlisted 
man  who  has  absented  himself  without  leave  in  an  enlistment  entered 
into  subsequent  to  the  approval  of  that  act  will  be  required  to  make 
good  time  so  lost.  Held,  however,  that  for  an  enlistment  prior  to  date 
of  approval  of  that  act  he  can  not  be  required  to  make  good  such 
absence  except  as  provided  in  the  forty-eighth  article  of  war,^  but  the 
period  of  absence  will  not  be  regarded  in  the  computation  of  continu- 
ous service  in  the  operation  of  the  act  of  May  11,  1908  (35  Stat.  110). 
C.  16423,  Aug.  3, 1905. 

II  B  9  a.  A  soldier  was  arrested,  tried,  convicted,  and  held  to 
serve  sentence  of  civil  authorities.  Held,  that  he  was  absent  without 
leave,  and  must  make  the  time  good.     C.  16966,  Oct.  3,  1904- 

II  B  10.  An  officer  overstayed  a  leave  of  absence.  A  nunc  pro 
tunc  order  was  issued  purporting  to  grant  him  a  leave  of  absence  for 

*  An  absence  without  leave  by  an  officer  is  laid  under  the  sixty-second  article  of  war. 

2  U.  S.  V.  Landers,  92  U.  S.,  77,  79;  also  12  Comp.  Dec,  328. 

3  10  Comp.  Dec,  333,  Oct.  9,  1903. 


ABSENCE    WITH  LEAVE — ACCOUNTABILITY.  17 

the  period  overstayed.  Ileld,  that  such  order  did  not  change  his 
status.  C.  17 UO,  Jan.  25,  1905;  19077,  June  W,  1906;  20764,  Dec. 
12, 1906;  17 UO,  Aug.  28,  1907. 

ABSENCE   WITH  LEAVE. 

See  Absence  I  to  II. 

Arrest  of  officer  or  soldier See  Articles  op  War  LIX  I  2. 

Civilian  employees See  Civilian  employees  I  to  II. 

Female  nurses Sec  Army  I  G  3  d  (6)  (a)  [2]. 

Graduation  leave See  Army  I  D  6. 

Medical  attendance  during See  Claims  VIII. 

Officer,  muster-out  of See  Volunteer  Army  IV  D  1  a  (2)  (a). 

Quarters  and  heat  and  light See  Pay  and  allowances  II  A  1  c  (6). 

Medical  Reserve  Corps  officer See  Army  I  G  3  d  (3)  (c)  [21. 

Muster-ovJ.  during See  Volunteer  Army  I V  D  1  a  (3)  to  (5). 

ABSENCE  WITHOUT  LEAVE. 

See  Absence  II  to  III. 

See  Articles  of  War  XXXII  A  to  C. 

Civil  authorities  in  hands  of. See  Enlistment  I  B  2  b. 

Deserter  convicted  of See  Desertion  V  B  4. 

Evidence  of. See  Discipline  XI  A  17  a  (2)  (a)  [1]  [e]  [A]. 

Medical  attendance  on See  Claims  VIII. 

Muster-out  during See  Volunteer  Army  IV  D  1  a  (4)  (6). 

Pay  and  allowances  while  on See  Desertion  XIV  A  1. 

Pay  and  allowances  I  C  2;  II  A  3  a 
(2);  III  C  2  b. 

Relation  to  desertion See  Desertion  I  A  to  E. 

Status  after  muster-out    of   organization  See  Volunteer  Army  IV  C  1  b. 

United  States  Volunteers. 
Stoppage  of  pay  on  account  of See  Desertion  V  D  1  b. 

ACCEPTANCE. 

Appointment,  original See  Office  III  A  6  to  7;  B  3  a  (1). 

Appointment,  by  volunteer See  Office  V  A  2. 

Appointment,  how  affects  pay See  Pay  and  allowances  I  B  1. 

Bid. See  Contracts  VI  F  2 ;  XI  A;  XI  D  3 ;  H ; 

XVI  B. 

Bond See  Bonds  I  M  1 ;  III  B;  IV  K;  N. 

Claim,  settlcTnent  of. See  Claims  I. 

Deed See  Public  property  II  A  3. 

Flag See  Flag  V. 

Gift  to  United  States See  Appropriations  VII. 

Nunc  pro  tunc  of  resignation See  Civilian  employees  XI  A  1. 

Pardon See  Pardon  II. 

Promotion See  Office  III  A  7  to  8;  B  5  to  6. 

Rent  from  assignee See  Public  property  VII  B  1  a. 

Resignation See  Office  IV  D  1;  5  to  6. 

Resignation  for  good  of  service See  Office  IV  D  6. 

Right  of  way See  Public  property  VI  B  3. 

Service  as  soldier See  Volunteer  Army  II  B  1  b. 

Surety See  Bonds  V  A. 

Vacates  office See  Office  IV  A  to  B;  V  A  7  a. 

ACCOMPLICE. 
Evidence  by See  Discipline  XV  F  4. 

ACCOUNTABILITY. 

For  public  property See  Public  property  I  F  to  G. 

Governor,  for  public  property See  Militia  IX  D. 

31106°— 12 3 


18  ACCRETIONS   TO   LAND ACTIVE   LIST. 

ACCRETIONS   TO   LAND. 

See  Public  property  I  D  1. 
ACCUSED. 

See  Discipline  V  A  to  I  1 ;  II  D  3  to  9. 

Arraignment  of. See  Discipline  IX  E  1  to  5  b. 

Charges,  copy  of  to See  Discipline  II  E. 

Copy  of  record See  Articles  of  war  CXIX  A. 

Counsel,  right  to See  Command  V  A  5; 

Discipline  XV  B. 

Court  of  inquiry See  Articles  op  war  CXIX  A  to  B  ;  CXX 

AtoB;  CXXIA. 

Criminates  himself. See  Discipline  V  B  ;  B  1 . 

Escape  of  during  trial See  Discipline  VIII  H  2;  XVII  A  4  c. 

Evidence  by See  Discipline  XI  A  14  a;  b;  b  (1). 

Insanity,  evidence  of. See  Discipline  XI  A  11a. 

Jurisdiction  over  by  general  court-martial. .  .See  Discipline  VIII  G  1  a;  b;  c  (1). 

Revision  of  record See  Discipline  IX  N  4. 

Statement  by See  Discipline  IV  C  2  a  (1);  L;  V  H  1  to  5; 

IX  I  1  to  2,  XV  F  6. 

Statement,  inconsistent  vjith  plea See  Discipline  IX  E  5  a  (2). 

Wife  as  witness See  Discipline  X  B  1 ;  la. 

Witnesses,  right  to See  Discipline  X  D  ;  D  1. 

Witnesses,  right  to  be  confronted  with See  Articles  op  war  XCI  H. 

ACCUSER. 

Js  summary  court  officer See  Discipline  XVI  E  5. 

As  trial  judge  advocate See  Discipline  III  C  2  c  (1)  to  (3). 

Commanding  officer  as See  Discipline  XVI  C. 

How  determined See  Articles  op  war  LXXII  I  1  to  4. 

ACQUITTAL. 

Deserter See  Desertion  V  E  1;  2;  XI;  XIV  A  6. 

Discharge  without  honor  after,  not  author-  See  Discharge  III  B  4. 

ized. 

Drunkenness See  Discipline  XII  A  9  a. 

Effect  of See  Discipline  XII  I  1;  XVIII  Big. 

Forfeitures  after See  Pay  and  allowances  I  C  2;  III  C  2  b. 

Post  exchange  officer  charged  with  embezzle-  See  Government  agencies  II 13  5. 

ment  of  fund. 

Release  after See  Discipline  XIV  E  9  n  (1). 

Responsibility  for  public  property See  Desertion  XIX  A. 

ACTION   BY   GENERAL   COURT-MARTIAL. 

See  Discipline  XII  A  to  F. 
ACT   OF   GOD. 

See  Contracts  X  C. 
ACTIVE   DUTY. 

See  Retirement  I  K  to  L. 
ACTIVE   LIST. 
Retired  officer  not  on See  Retirement  I  K  4  d. 


ACTIVE   SERVICE AFFIRMATION.  19 

ACTIVE   SERVICE. 

See  Retirement  I  K  1. 
In  Marine  Corps  by  enlisted  man  counts  for  See  Retirement  II  A  2. 
retirement. 

ADDITIONAL   CHARGE. 

See  Articles  of  war  LXXXIV  B. 

ADDITIONAL   PAYMENTS. 

See  Contracts  XLI. 

ADDITIONAL   TIME. 

See  Contracts  VII  J  2. 

ADJOURNMENT. 

Of  general  court  martial See  Discipline  IX  L  1 ;  2. 

ADJUTANT  GENERAL'S  DEPARTMENT. 

Duty  in  case  of  disapproval  of  deserter^ 8 

connction See  Desertion  XIV  A  5. 

Eligibility  of  officers  to  command See  Command  I  A  1. 

The  Adjutant  General  is  a  Chief  of  Corps.. See  Insignia  op  Merit  II  H  1. 
The  Adjutant  GeneraVs  office,  duties  of See  Army  I  G  3  a  (2). 

ADJUTANTS   GENERAL   OF   STATES. 

See  Militia  III  G. 

Payment  of See  Militia  XI  A. 

Penalty  envelopes,  use  of See  Communications  II  A  4. 

ADMINISTRATIVE   STAFF. 

See  Army  I  G  3  a  to  b. 

ADMIRALTY   LIEN. 

See  Claims  VI  F. 

ADMONITION. 

By  commanding  officer See  Discipline  XVII  A  2. 

ADVERTISEMENT. 

By  Quartermaster's  Department See  Laws  I  B  5. 

Contracts  by See  Contracts  III  to  VI;  VI  A;  E;  I;  L. 

Exception  to  rule  requiring See  Contracts  VII  to  VIII. 

ADVISING   DESERTION. 

See  Articles  of  War  LI  A. 
AFFIRMATION. 
By  member  of  General  Court  Martial See  Articles  of  War  LXXXIV  A. 


20  AGE ALIEN   I.  . 

AGE. 

Candidate  for  commission See  Office  III  A  1  b  (2);  c  (3). 

Limit  for  enlistment See  Enlistment  I  B  1  to  2;  D  2  to  3. 

Minor,  how  shown See  Discharge  XII  B  1;  2. 

AGENT. 

Acts  of^  hind  surety See  Bonds  V  D. 

Service  of  process  on See  Bonds  V  G. 

ALASKA. 

See  Territories  III  to  IV. 

Cadets  from See  Army  I  D  1  a  (2)  (e). 

Discharge  without  honor  in See  Army  I  G  3  b  (2)  (a)  [3]  [a]. 

Reenlistment  in See  Enlistment  I  B  2  c. 

Use  of  Army  in See  Army  II  B. 

ALASKAN   ROAD   COMMISSION. 

Authority  of See  Territories  III  F  to  G. 

Sale  of  property See  Public  Property  IX  A  3  a. 

ALIEN. 

I.  MAY  DISPLAY  FLAG  OF  COUNTRY. 

n.  MINOR  MAY  DECLARE  INTENTION  TO  BECOME  CITIZEN. 
m.  APPLICATION    FOR    CITIZENSHIP    MADE    BEFORE    COURTS    IN 

UNITED  STATES. 
IV.  IN  ALASKA,  CITIZENSHIP  HOW  SECURED.    (See  Territories.) 
V.  ENLISTMENT  OF.    (See  Enlistment.) 

VI.  DISCHARGE  OF,  FROM  ARMY.     (See  Discharge.) 
Vn.  MAY  WORK  ON  GOVERNMENT  WORKS. 

I.  Held  that  there  is  no  law  precluding  an  alien  residing  in  the 
United  States,  the  subject  of  a  foreign  Government  with  which  we  are 
at  peace,  from  displaying  the  flag  of  his  country  on  his  dwelliQg. 
P.  16,  176,  Mar.,  1887, 

II.  Under  section  4  of  the  act  of  June  29,  1906  (34  Stat.  L.,  596), 
an  alien  minor,  independently  of  his  family,  may  make  declaration 
of  his  intention  to  become  a  citizen  at  any  time  after  he  reaches  the 
age  of  18.     G.  lOOJ^O,  Nov.  28,  1910. 

III.  As  none  of  the  courts  established  in  the  Philippine  Islands 
come  under  the  terms  of  description  used  in  section  2165,  Revised 
Statutes;  lield,  that  a  soldier  applying  for  naturalization  should  ap- 
pear before  a  court  in  the  United  States  having  jurisdiction  to 
naturalize.  C.  12293,  Mar.  29,  1902.  The  same  is  true  in  Cuba. 
C.  10915,  July  23,  1901. 

VII.  There  is  no  law  prohibiting  contractors  on  Government 
work  employmg  persons  on  such  work  who  are  not  citizens  of  the 
United  States.    C.  724,  Bee.  6,  1894. 

cross  references. 

Appointment  to  office See  Office  III  Alb  (1). 

Armory  can  not  he  used  for  drill  by See  Militia  VIII  B, 

Candidate  for  West  Point See  Army  I  D  1  a  (2)  (a)  [2]  [a]  [B]. 

Contracts  with See  Contracts  XXIII  to  XXIV. 

Desertion  of. See  Desertion  IX  L;  M. 

Discharge  of. See  Discharge  XXVI  A. 

Enlistment  of See  Enlistment  I  B  1  b  (1);  (2);  C  to  D. 

Naturalization  of See  Militia  XIX  to  XX. 

Nonintercourse  m  war See  War  I  C  2  b. 


ALIMONY — APPREHENSION.  21 

ALIMONY. 

Judgment  against  an  officer See  Army  I  C  2. 

Proceedings  for,  against  retired  officer See  Retirement  I  G  2  d. 

ALLOTMENTS. 
Of  pay See  Pay  and  allowances  I  C  8  a. 

ALLOWANCES. 

See  Pay  and  allowances  II  to  IV. 
Chief  and  assistant  chief  of  Philippine  con-  See  Territories  IV  B  2  a  (1). 
stabulary. 

Militia  during  joint  encampment See  Militla.  VI  B  2  h. 

Not  pay See  Pay  ans  allowances  II  A  3  a  (1). 

Officers  at  Soldiers'  Home See  Soldiers'  Home  I  C. 

Post  exchange  officer See  Government  agencies  II  B  1. 

Sea  travel See  Command  V  B  1. 

ALTERNATE. 

Beneficiary  for  gratuity See  Gratuit"s  I  B  4  b. 

Candidate  for  West  Point See  Army  I  D  1  a  (2)  (6)  [1]. 

AMENDMENT. 

Bids See  Contracts  VI  M. 

Charges See  Discipline  II  D  8  a;  H  1;  2;  IV  B  1; 

XIV  E  7  b;  c. 

Mmter  roll,  unauthorized See  Pay  and  allowances  III  E  1. 

Records,  official,  not  permitted See  Volunteer  Army  IV  H  1. 

AMERICAN  NATIONAL   RED   CROSS. 

See  Red  Cross  II  to  III. 

AMMUNITION. 
Issue  of. See  Militia  XII  B. 

ANNULMENT. 
Of  contract See  Contracts  VIIJ  1;  XXI  to  XXII. 

APPEAL. 

See  Absence  II  A  2, 

From  regimental  court-martial See  Articles  op  War  XXX  A. 

From  general  court-martial See  Discipline  XIV  E  9  f  (1);  XV  I  1. 

APPOINTMENT. 

Board  of  review See  Army  I  G  3  d  (2)  (6). 

Bureau  chief. See  Rank  I  B  1  d  to  e. 

Cadetship See  Army  I  D  1  a  to  c. 

Constructive  pardon See  Pardon  XV  C  3. 

I>aieof. See  Office  III  B  3  to  4. 

Eligibility  of  dismissed  officer  for See  Office  I V  E  1  c  ;  2  f . 

Medical  Department See  Rank  I  B  1  c  to  d. 

Noncommissioned  officers See  Rank  I  D  to  E. 

OfficeinArmy See  Office  II  to  IV. 

Office  in  Volunteers See  Office  V  A  to  B. 

Pay  before See  Pay  and  allowances  I  A  1  a. 

Porio  Rico  Regiment See  Army  I  G  2  a  (1)  (a);  (6). 

Successor:  vacates  office See  Office  I V  C;  D  5  c  (2). 

APPREHENSION. 
Of  deserter See  Desertion  III  A  to  H. 


22  appropriations:  synopsis. 

APPROPRIATIONS.! 

I.  GENERAL  RULE  AS  TO  EXPENDITURES  COVERED  BY  APPRO- 
PRIATION ACTS. 

A.  Appropriation  for  "Construction"  of  Telegraph  Line   In- 

cludes ALL  Expenditures  Necessary  to  Carry  out  the 
Provisions  of  the  Act Page  25 

B.  An   Appropriation   Does   Not  Cover  an   Article   Named  in 

the  Estimates  Unless  it  Names  that  Article  or  Desig- 
nates A  Class  that  would  Include  that  Object Page  26 

C.  Appropriations  Made  in  Conformity  to  Estimates  Imply  an 

Authority  to  Purchase  the  Article  Named  in  the  Esti- 
mate. 
n.  WORDS    NECESSARY   TO    CONSTITUTE   AN   APPROPRIATION. 

APPROPRIATION  BY  IMPLICATION Page  27 

m.  SECTION  3736,  R.  S.    LANDS  SHALL  NOT  BE  PURCHASED  EX- 
CEPT UNDER  A  LAW  AUTHORIZING  SUCH  PURCHASE. 
IV.  SECTION  3678,  R.  S.    SUMS  APPROPRIATED  SHALL  BE  APPLIED 

TO  THE  OBJECT  FOR  WHICH  APPROPRIATED Page  28 

V.  SECTION  3690,  R.  S.  ANNUAL  AND  PERMANENT  APPROPRIA- 
TIONS. PERIOD  FOR  WHICH  APPROPRIATIONS  ARE  AVAIL- 
ABLE. 

A.  Section  3690,  R.  S.,  in  General. 

B.  Permanent  Appropriation   Usually    Available   Regardless 

OF  Lapse  of  Time Page  29 

C.  Necessary  Expenses  Required  in  Preparation  of  a  Contract 

THAT  IS  Payable  From  an  Annual  Appropriation  May  be 
Paid,  Although  Incurred  Before  Beginning  of  Fiscal 
Year Page  31 

D.  An   Annual   Appropriation    is   Available   for   Two   Years 

After  the  Expiration  of  the  Fiscal  Year. 
VI.  PROPERTY  CAN  NOT  BE  TRANSFERRED  FROM  ONE  BUREAU 
TO  ANOTHER  EXCEPT  WHERE  PROPERTY  IS  NOT  NEEDED 

FOR  PURPOSE  FOR  WHICH  PURCHASED Page  32 

Vn.  MONEY  DONATED  TO  THE  UNITED  STATES  CAN  NOT  BE  EX- 
PENDED  UNTIL  APPROPRIATED Page  33 

Vm.  EXPENSES   PRELIMINARY  TO   PURCHASES   FOR  WHICH   AN 

APPROPRIATION    IS    MADE    ARE    CHARGEABLE    TO    THE 

APPROPRIATION. 

IX.  WHERE  AN  APPROPRIATION  IS  MADE  FOR  A  CERTAIN  OBJECT 

THE  ENTIRE  APPROPRIATION  CAN  NOT  BE  EXPENDED  FOR 

PARTIAL  PERFORMANCE  ONLY Page  34 

X.  SPECIFIC  APPROPRIATION  CAN  NOT  BE  SUPPLEMENTED  BY 

A  GENERAL  APPROPRIATION.     INSTANCES Page  35 

XI.  RULE  THAT  GENERAL  WORDS  FOLLOWING  THE  ENUMERA- 
TION OF  SPECIAL  ARTICLES  OR  CLASSES  OF  ARTICLES  ARE 
TO  BE  CONSTRUED  AS  LIMITED  TO  ARTICLES  OF  A  LIKE 

KIND  WITH  THOSE  SPECIFIED Page  37 

Xn.  APPROPRIATIONS  THAT  COVER  THE  PAYMENT  OF  A  REWARD 

FOR  THE  DETECTION  OF  CRIME Page  38 

Xm.  USE  OF  APPROPRIATION  TO  REIMBURSE  PERSONS  WPIO  HAVE 
EXPENDED  MONEY  FOR  PURPOSES  COVERED  BY  THE  AP- 
PROPRIATION. 

^  Prepared  by  Maj.  H.  M.  Morrow,  judge  advocate;  assistant  to  Judge  Advocate 
GeneraL 


I 


appropriations:  synopsis.  23 

XIV.  APPROPRIATIONS    FOR    ''IMPROVEMENT"    OF    RIVERS    AND 

HARBORS  AND  OTHER  CIVIL  WORKS. 
XV.  APPROPRIATION    FROM    WHiril    PROPERTY    HAS    BEEN    AC- 
QUIRED SHOULD  BE  CHARGED  WITH  THE  EXPENSE  OF  AN 
ABSTRACT  OF  TITLE  AND  OTHER  EXPENSES  CONNECTED 
WITH  TRANSFER  OF  LAND,  AS  EXPENSE  OF  RECORDING 

DEEDS,  PAYMENT  OF  TAXES,  ETC Page  39 

XVI.  APPROPRIATIONS   FOR  THE   RELIEF  OF  SUFFERERS   FROM 

STORMS,  ETC Page  40 

XVn.  APPROPRIATIONS  FOR  "CONSTRUCTION  "  OF  LAUNDRIES  DO 
NOT  AUTHORIZE  THE  PURCHASE  OF  A  BUILDING  ALREADY 

CONSTRUCTED Page  U 

XVm.  EXPENDITURE  OF  PUBLIC  MONEY  ON  LAND  SUBJECT  TO  A 
PUBLIC  EASEMENT,  OR  ON  LAND  TO  WHICH  THE  UNITED 
STATES  DOES  NOT  HAVE  TITLE. 

XIX.  APPROPRIATIONS  FOR  MILEAGE Page  42 

XX.  APPROPRIATIONS  FOR  TRANSPORTATION Page  43 

XXI.  APPROPRIATIONS  FOR  INCIDENTAL  EXPENSES  OF  QUARTER- 
MASTER'S DEPARTMENT Page  45 

XXn.  APPROPRIATIONS  FOR  SUPPORT  OF  THE  ARMY  AVAILABLE 
FOR  STRICTLY  ARMY  PURPOSES  AT  MILITARY  ACADEMY, 
GENERAL  HOSPITALS,  WAR  COLLEGE,  ETC. 
XXm.  APPROPRIATIONS    FOR    CONTINGENT    EXPENSES    OF    WAR 

DEPARTMENT Page  46 

XXIV.  CONTINGENCIES  OF  THE  ARMY Page  47 

XXV.  APPROPRIATIONS     FOR     EXPENSES     OF     COURTS-MARTIAL, 

COURTS  OF  INQUIRY,  ETC Page  50 

XXVI.  APPROPRIATIONS  FOR  TELEGRAMS  AND  TELEPHONE  MES- 
SAGES ON  "OFFICIAL  BUSINESS" Page  51 

XXVn.  APPROPRIATIONS  FOR  THE  MILITIA.     (See  Militia  and  "Appro- 
priations" XXX.) 
XXVm.  APPROPRIATIONS  FOR  BARRACKS  AND  QUARTERS....  Page  52 

XXIX.  APPROPRIATIONS  FOR  POST  EXCHANGES Page  53 

XXX.  APPROPRIATIONS  RELATING  TO  FORTIFICATIONS  AND  SEA- 
COAST  DEFENSES Page  54 

XXXI.  APPROPRIATIONS  FOR  REGULAR  SUPPLIES Page  55 

XXXn.  ACT  OF  MARCH  3,  1899,  CREATING  AN  EMERGENCY  FUND. 
XXXm.  MONEY  PAYABLE  FROM  A  SPECIFIC  APPROPRIATION  CAN  NOT 
BE  TRANSFERRED  TO  THE  CREDIT  OF  ANOTHER  APPROPRI- 
ATION. 
XXXIV.  PROCEDURE    WHERE    ACCOUNTS    ARE    PAYABLE    FROM    AN 

EXHAUSTED  APPROPRIATION Page  56 

XXXV.  ACT  OF  JUNE  16,  1890,  AS  TO  MONEY  FOR  DISCHARGE  BY  PUR- 
CHASE BEING  DEPOSITED  TO  CREDIT  OF  AN  ARMY  APPRO- 
PRIATION. 
XXXVI.  WHERE  AN  ARTICLE  IS  TO  BE  USED  FOR  A  PURPOSE  COVERED 
BY  TWO  SEPARATE  APPROPRIATIONS,  COST  MAY  BE  APPOR- 
TIONED BETWEEN  THE  TWO  APPROPRIATIONS. 

A.  Wood-working  Machinery  at  Military  Prison. 

B.  Machinery  for  Laundering  Clothes  op  Prisoners  at  Military 

Prison. 

C.  Printing  op  Blank  Forms  for  Special  Inspection. 

D.  Printing  op  Certain  Specially  Ruled  Sheets  Relating  to 

Fortifications  and  the  Militia Page  57 


24  APPEOPEIATIONS  :   SYNOPSIS. 

XXXVn.  PLANT     INSTALLED     AT     ARTILLERY     SCHOOL     WHETHER 
CHARGEABLE  AGAINST  APPROPRIATION  FOR  FORTIFICA- 
TIONS OR  FOR  SUPPORT  OF  SCHOOL. 
XXXVm.  RIVER  AND  HARBOR  ACT  OF  MARCH  3,  1899,  WHETHER  EX- 
PENSE  OF  REMOVING  FALLEN   RAILROAD   BRIDGE  OVER 
CANAL  SHOULD  BE  PAID  FROM  APPROPRIATION  FOR  RE- 
MOVING WRECKS  OR  FOR  CARING  FOR  CANALS. 
XXXIZ.  APPROPRIATION  FROM  WHICH  CUSTOMS  DUTIES  AND  INTER- 
NAL-REVENUE TAXES   ON   GOVERNMENT   PROPERTY  ARE 
PAYABLE. 
XL.  FUEL  AND  LIGHT  FOR  COMMISSARY  STOREHOUSE  WHETHER 
CHARGEABLE    AGAINST    QUARTERMASTER'S    OR    SUBSIST. 
ENCE  DEPARTMENT. 
XLI.    ELECTRIC   INSTALLATION   AND  OPERATION    OF   FANS    FOR 
HOSPITALS  WHETHER  CHARGEABLE  AGAINST   APPROPRI- 
ATION   FOR   QUARTERMASTER'S    DEPARTMENT   OR  MEDI- 
CAL AND  HOSPITAL  DEPARTMENT Page  58 

XLH.  EXPENSE  OF  REMOVAL  OF  BUILDINGS  FOR  CONSTRUCTION 
OF  HOSPITAL  CHARGEABLE  AGAINST  APPROPRIATION  FOR 
CONSTRUCTION  OF  HOSPITAL,  REGARDLESS  OF  THE  FACT 
THAT  ANOTHER  DEPARTMENT  CONTROLLED  THE  BUILD- 
INGS TO  BE  REMOVED. 
Xim.  TELEPHONE  MESSAGES  FROM  A  HOSPITAL  WHETHER  CHARGE- 
ABLE AGAINST  HOSPITAL  FUNDS  OR  APPROPRIATIONS  FOR 
QUARTERMASTER'S  DEPARTMENT. 
XUV.  ACT  OF  MARCH  2,  1901,  AS  TO  PURCHASE  OF  MEDICAL  AND 
HOSPITAL  SUPPLIES,  MAY  BE  USED  TO  EQUIP  ROOMS  IN 
ARMY  MEDICAL  SCHOOL  FOR  INSTRUCTION  PURPOSES. 
XLV.  ACT  OF  MAY  11,  1908,  AS  TO  APPROPRIATION  FOR  MEDICAL 

CARE  OF  CIVILIAN  EMPLOYEES. 
XLVI.  '*  ELECTRIC  FIXTURES  "  PROVIDED  FOR  IN  APPROPRIATION 
ACT  INCLUDES  WATT  METERS  FOR  MEASURING  ELECTRIC- 
ITY   Page  59 

XLVn.  ACT  OF  FEBRUARY  27,  1893,  APPROPRIATING  FOR  FUEL  AND 

LIGHTS  FOR  ENLISTED  MEN,  INCLUDES  GAS. 
XLVm.  EXPENSE  OF  OBTAINING  SERVICES  OF  EXPERTS  IN  CONNEC- 
TION WITH  TEST  OF  COAL  CHARGEABLE  AGAINST  APPRO- 
PRIATIONS FOR  FUEL  AND  HEATING  APPARATUS. 
XLE£.  UNEXPENDED  BALANCE  AFTER  COMPLETION  OF  MONUMENT 
ERECTED  BY  MONEY  JOINTLY  CONTRIBUTED  BY  UNITED 
STATES  AND  STATE  TO  BE  DIVIDED  PRO  RATA  BETWEEN 
UNITED  STATES  AND  STATE. 
L.  COST  OF  DISTILLED  WATER  CHARGEABLE  AGAINST  APPRO- 
PRIATION   FOR    PROCURING    WATER    AND    INTRODUCING 
THE  SAME  TO  BUILDINGS. 
LI.  APPROPRIATION   FOR  ERECTION   OF  BUILDING  DOES   NOT 

INCLUDE  FURNITURE Page  60 

LH.  APPROPRIATION  FOR  CONSTRUCTING  ROADS  AND  WHARVES 
INCLUDES  REPAIRING  A  CRIB  DOCK  AND  APPROACH 
THERETO. 

Lm.  THE  COST  OF  MAINS  AND  HYDRANTS  SITUATED  IN  A  STREET 
PURCHASED  BY  THE  UNITED  STATES  IS  CHARGEABLE 
AGAINST  THE  APPROPRIATION  FOR  THE  PURCHASE  OF  THE 
STREET. 


APROPRIATIONS   I  A.  25 

LIV.  ACT  OF  MARCH  2, 1907,  MAKING  APPROPRIATION  FOR  LIBRARY 
OF  SURGEON  GENERAL'S  OFFICE,  INCLUDES  THE  HIRE  OF 
LABORERS  TO  HANDLE  AND  CARRY  THE  BOOKS. 
LV.  ACT  OF  JULY  1,  1898,  MAKING  AN  APPROPRIATION  TO  COVER 
THE  ENTJRE  COST  OF  LIGHTING  AND  MAINTAINING  CER- 
TAIN  ELECTRIC  LIGHTS,  INCLUDES  NECESSARY  EXCAVA- 
TIONS AND  EXTENSION  OF  UNDERGROUND  CONDUITS. 
LVI.  ACT  OF  MARCH  23,  1910,  APPROPRIATING  FOR  MAINTENANCE 
AND    REPAIR   OF   TELEGRAPH    LINES  INCLUDES  TRAVEL 
EXPENSES  OF  CIVILIAN  EMPLOYEE. 
LVn.  ACT  OF  MARCH  9,  1906,  FOR  PROPER  FENCING  OF  BURIAL 
GROUNDS    IN    CONNECTION    WITH    MARKING   GRAVES    OF 
CONFEDERATE    DEAD,    INCLUDES    THE    SERVICES    OF   AN 
ARCHITECT    TO    DESIGN    THE    FENCING    AND    INCLUDES 
GRADING. 
LVm.  COST  OF  PRIVATE  TREES  CUT  DOWN  IN  COURSE  OF  TACTICAL 
INSTRUCTION  AT  A  SERVICE  SCHOOL  CHARGEABLE  AGAINST 

THE  APPROPRIATION  FOR  THE  SCHOOL Page  61 

UX.  ACT  OF  FEBRUARY  14,   1902,   FOR  THE  ESTABLISHMENT  OF 
FORT  WILLIAM  McKINLEY,  HELD  NOT  TO  AUTHORIZE  CON- 
STRUCTION OF  ROADS. 
LX.  NO   APPROPRIATION   AVAILABLE   FOR   FURNISHING   MUSIC 

FOR  "VOLUNTEER  BANDS." 
LXI.  EXPENSE  OF  CONFINING  NATIVE  OF  PORTO  RICO  IN  PENI- 
TENTIARY FOR  CIVIL  CRIME  FOR  WHICH  TRIED  BY  MILI- 
TARY COMMISSION  NOT  PAYABLE  FROM  APPROPRIATIONS 
FOR  THE  ARMY. 
LXn.  ACT  OF  JUNE  28,  1910,  APPROPRIATING  FOR  "  REPAIR  "  OF 

MONUMENTS  ON  BATTLE  FIELD. 
LXm.  ACT  OF  JULY  8,  1898,  RELATIVE  TO  TRANSPORTING  TO  THEIR 
HOMES  THE  REMAINS  OF  DECEASED  OFFICERS  AND  SOL- 
DIERS. 
LXIV.  REMARKS  OF  QUARTERMASTER  GENERAL  BEFORE  CONGRES- 
SIONAL COMMITTEE  NOT  TO  PREVAIL  OVER  LANGUAGE  OF 

APPROPRIATION Page  62 

LXV.  ACT  OF  MARCH  3,  1909,  AS  TO  USING  ONE  APPROPRIATION  TO 
MAKE  UP  DEFICIENCY  IN  ANOTHER,  NOT  LIMITED  TO  AP- 
PROPRIATIONS PERTAINING  TO  SAME  FISCAL  YEAR. 
LXVI.  FORFEITURE  OF  PAY  OF  CIVILIAN  EMPLOYEE  BY  SENTENCE 

OF  COURT-MARTIAL. 
LXVn.  APPROPRIATION      FOR      MAINTAINING      AND       IMPROVING 
NATIONAL   CEMETERIES   SUFFICIENT  TO   COVER  A    SIDE- 
WALK IN  FRONT  OF  A  NATIONAL  CEMETERY. 

^  I  A.  The  act  of  February  17,  1887  (24  Stat.  405),  appropriated^ 
''for  the  construction  of  a  military  telegraph  Hne  on  the  eastern  coast 
of  the  State  of  Florida  from  *  *  *  and  for  the  estabhshment  of  a 
station  for  the  taking  of  meteorological  observations  and  the  dis- 
play of  storm  signals  at  Point  Jupiter,"  lieU  that  it  is  the  imperative 
rule  that  expenditures  are  payable  out  of  the  appropriation  under 
which  they  are  specifically  provided  for,  and  that  applying  this  rule 
to  the  above  act,  it  follows  that  all  expenses  legitimately  incurred  in 

\  In  an  appropriation  act  general  legislation  beginning  with  the  word  "hereafter" 
takes  effect  at  the  date  of  the  act  and  not  at  the  beginning  of  the  ensuing  fiscal  year 
tor  which  the  appropriation  is  made.    Chance  v.  U.  S.,  38  Ct.  Cls.  75. 


26  APPEOPKIATTONS  I  B. 

the  construction  of  the  telegraph  Hne  in  question  and  in  estabHshing 
the  station  for  the  purposes  intended  are  legally  payable  out  of  the 
appropriation  in  question,  and  include  the  mileage  of  the  officer  to 
supervise  the  work,  the  transportation  of  the  enlisted  men  engaged 
therein,  the  materials  to  be  used,  the  hire  of  labor,  etc.,  the  erection 
of  the  necessary  shelter,  the  purchase  of  instruments,  and  every 
other  expenditure  necessary  to  carry  out  the  provisions  of  the  act  to 
construct  the  line  and  to  establish  the  station.^  51  R.  666,  Mar.  12, 
1887, 

I  B.  The  act  of  March  3,  1891  (26  Stat.  978),  appropriated 
$200,000  'Ho  enable  the  Secretary  of  War  to  complete  the  establish- 
ment of  the  Chickamauga  and  Chattanooga  National  Park,  accord- 
ing to  the  terms  of  an  act  entitled  'An  act  to  establish  a  national 
military  park  at  the  battlefield  of  Chickamauga,'  approved  August 
19,  1890."  The  estimates  for  this  appropriation  included  sundry 
items  to  the  amount  of  double  the  sum  actually  appropriated,  that  is, 
$400,000,  and  it  was  claimed  that  one  of  these  items  in  the  estimates, 
that  of  $35,000  for  ''seven  wrought-iron  observation  towers,"  was 
included  in  the  act,  notwithstanding  that  the  act  cut  down  the  total 
of  the  estimate  by  one-half,  made  no  mention  of  the  particular  item 
of  observation  towers,  and  specified  no  class  of  objects  within  which 
it  could  be  included,  but  made  an  appropriation  in  the  most  general 
terms  to  carry  out  the  purposes  of  a  previous  act,  which  also  did  not 
include  observation  towers.  Held  that  the  appropriation  did  not 
include  the  erection  of  observation  towers,  and  that  although  esti- 
mates are  a  legitimate  means  of  construction  of  appropriation  acts 
based  on  tliem,^  yet  an  appropriation  act  can  not  be  construed  as 
appropriating  for  a  certain  article  specified  in  the  estimates  unless 
such  appropriation  act  either  names  that  article  or  designates  a  class 
of  objects  within  which  it  may  be  fairly  and  reasonabl}^  embraced.^ 
If  a  certain  article  is  fairly  and  reasonably  embraced  witliin  a  class 
of  objects  designated  in  the  appropriation  act,  it  may  be  presumed 
that  Congress  had  in  view  that  particular  article  and  intended  to 
make  provision  for  it.     5 4  P.  112,  June  14,  1892. 

I  C.  It  is  a  familiar  general  principle  adopted  and  acted  upon  in 
the  executive  departments  that  appropriations  made  in  conformity 
with  estimates,  and  based  upon  them,  implj^  an  authority  to  expend 
the  appropriated  funds  for  the  articles  designated  in  the  estimates 
and  imply  a  legislative  sanction  of  the  objects  for  which  the  appro- 
priations were  asked.*  61  R.  666,  Mar.  12,  1887;  41  P-  105,  May  29, 
1890;  C.584,  July  28,  1911. 

^  InVIIComp.Dec,  31,  it  was  said:  "It  is  true  that  the  (question  whether  a  particular 
expense  is  necessary  or  appropriate  to  the  object  for  which  an  appropriation  is  made 
is  one  which  is  in  general  within  the  discretion  of  the  head  of  the  department  having 
control  of  the  disbursement  of  the  moneys  appropriated.  This  is  particularly  true  of 
any  question  of  the  necessity  for  an  expenditure,  or  of  the  character  or  quality  or  rea- 
sonable cost  of  any  article  purchased  under  a  particular  appropriation;  and,  except 
as  to  unconscionable  transactions,  which  are  not  to  be  presumed,  the  exercise  of  such 
discretion  in  relation  to  these  particular  questions,  within  the  authority  of  the  law,  is 
conclusive  upon  the  accounting  officers  and  the  courts.  (United  States  v.  Speed,  8 
Wall.,  77,  83;  Earnshaw  v.  United  States,  146  U.  S.,  60,  68.)  But  the  discretion  so 
conferred  is  not  an  unlimited  discretion;  it  is  a  legal  discretion,  subject  to  the  terms 
of  the  particular  appropriation  and  to  restrictions  imposed  by  other  laws.  (V  Comp. 
Dec,  152.)"     See  also  VIII  Comp.  Dec,  327. 

2  See  Ohio  v.  Thomas,  173  U.  S.  276,  282. 

3  See  VI  Comp.  Dec,  912. 

*  See  Dig.  Second  Comptroller  of  1869,  pars.  76  and  77. 


J 


APPROPRIATIONS   11.  27 

II.  A  Senate  resolution  of  May  2,  1900,  provided  ''That  the  Sec- 
retary of  War  be  directed  to  communicate  to  the  Senate  the  number, 
amount,  and  cliaracter  of  all  claims  whicli  have  come  to  his  knowledge 
against  the  United  States  for  damages  to  private  property  used  or 
destroyed  by  troops  in  the  military  service  within  the  limits  of  the 
United  States  during  the  War  with  Spain,  and  to  ascertain  the  loss  or 
injury,  if  any,  that  may  have  been  sustained  by  such  claimants,  and 
report  to  the  Senate  what  amounts  he  finds  to  be  equitably  due  from 
the  United  States  to  such  claimants."  Ilekl  that  the  above  resolu- 
tion did  not  constitute  a  law  making  an  appropriation  for  the  expenses 
of  the  investigation  provided  for,  and  therefore  the  Secretary  of  War 
would  not  be  authorized  to  involve  the  United  States  in  any  expense 
in  making  such  investigation.*  C.  8199,  May  5,  1900.  The  river 
and  harbor  act  of  June  3,  1896  (29  Stat.  213),  provided  for  an  inves- 
tigation of  San  Pedro  Harbor,  Cal.,  by  a  board,  and  upon  the  report 
of  the  board  expressly  authorized  the  Secretary  of  War  to  let  the 
contract  for  the  improvement  of  the  harbor,  and  appropriated 
$50,000  ''for  the  expenses  of  the  board  and  payment  ot  the  civil 
engineers  for  their  services."  It  clearly  appeared  from  the  wording 
of  the  act  that  it  assumed  that  the  money  to  pay  for  the  improvement 
was  appropriated  by  the  act;  but  in  fact  the  act  did  not  appropriate 
for  the  improvement.  Held,  that  as  the  act  expressly  authorized  the 
Secretary  to  let  the  contract  he  could  let  it  on  credit  if  he  wished,  but 
he  could  not  proceed  with  the  w^ork  itself,  as  the  use  of  the  money  for 
the  work  itself  would  violate  the  provisions  of  sections  3678,  3679, 
3732,  and  3733,  R.  S.     C.  3721,  Nov.  18,  1897. 

III.  Section  3736,  R.  S.,  provides  that  "no  land  shall  be  purchased 
on  account  of  the  United  States  except  under  a  law  authorizing 
such  purchase."  Held,  that  in  view  of  the  above  provision  of  the 
Revised  Statutes,  the  provision  in  the  act  of  February  14,  1902 
(32  Stat.  12),  providing  "for  the  establishment  in  the  vicinity  of 
Manila,  P.  L,  of  a  military  post,  including  the  construction  of  bar- 
racks, quarters  for  officers,  hospital,  storehouses,  and  other  buildings, 
as  well  as  w^ater  supply,  lighting,  sewerage,  and  drainage,  necessary 
for  the  accommodation  of  a  garrison  of  two  full  regiments  of  infantry, 
two  squadrons  of  cavalry,  and  two  batteries  of  artillery,  to  be  avail- 
able until  expended,  five  hundred  thousand  dollars,"  was  not  suf- 
ficient to  justify  the  purchase  of  land.^  C.  12154,  Mar.  4,  1902.  The 
act  of  May  26,  1900  (31  Stat.  206),  made  an  appropriation  "for  the 

1  The  act  of  February  27,  1899  (30  Stat.  894),  directed  the  Secretary  of  War  to 
"appoint  and  detail"  an  officer  of  the  Army  to  investigate  claims  for  services  of 
members  of  the  Fourth  Arkansas  Mounted  Infantry,  but  the  act  made  no  appropria- 
tion to  meet  the  expenses  of  the  appropriation.  It  was  therefore  held  that  as  there 
was  no  other  appropriation  out  of  which  the  expenses  could  be  legally  paid  the  act 
was  inoperative,  and  subsequently  an  appropriation  of  $2,000  was  made  for  that  pur- 
pose by  the  urgent  deficiency  act  of  February  9,  1900.  See4Comp.  Dec, 325;  6id.514; 
7  id.  411;  13  id.  729;  Fisher's  case,  15  Ct.  Cls.  323,  for  a  review  of  forms  of  acts  held 
to  constitute  an  appropriation.  See  also  6  Ct.  Cls.  84.  Section  9  of  the  act  of  June  30, 
1906  (34  Stat.  764),  provides:  "No  act  of  Congress  hereafter  passed  shall  be  construed 
to  make  an  appropriation  out  of  the  Treasury  of  the  United  States,  or  to  authorize 
the  execution  of  a  contract  involving  the  payment  of  money  in  excess  of  appropriations 
made  by  law,  unless  such  act  shall  in  specific  terms  declare  an  appropriation  to  be 
made  or  that  a  contract  may  be  executed."  As  to  the  meaning  of  the  words  "in 
specific  terms"  see  13  Comp.  Dec,  219,  700,  729. 

^In  this  case  supplemental  legislation  (32  Stat.  465)  authorized  the  use  of  a  portion 
of  the  appropriation  for  the  purchase  of  land.  See  also  7  Comp.  Dec,  524;  11  id.  132; 
14  id.  784;  11  Op.  Atty.  Gen.  201;  19  id.  80;  22  id.  065;  24  id.  603. 


28  APPEOPPJATIONS  IV. 

purpose  of  connecting  headquarters,  Department  of  Alaska,  at  St. 
Michael,  by  military  telegraph  and  cable  lines  with  otlier  military 
stations  in  Alaska."  Held,  that  in  view  of  the  requirements  of 
section  3736,  R.  S.,  the  above  act  would  not  authorize  tlie  accept- 
ance by  the  military  authorities  of  the  donation  of  a  lot  in  Alaska 
as  a  site  for  a  telegraph  office  and  quarters  for  a  signal  corps  detach- 
ment. C.  21874,  Feb.  18,  1908.  So  where  the  act  of  June  25,  1910 
(36  Stat.  725),  made  an  appropriation  as  follows:  ''Mount  Rainier 
National  Park:  For  additional  work  upon  the  wagon  road  into  said 
park  from  the  west,  heretofore  surveyed  and  commenced  under  the 
direction  of  the  Secretary  of  War,  to  be  immediately  available,"  lield, 
that  in  view  of  the  requirements  of  section  3736,  R.  S.,  the  appro- 
priation did  not  authorize  its  application  to  the  acquisition  of  a  right 
of  way  for  the  roadway.     C.  16898,  Nov.  26,  1910. 

IV.  In  view  of  the  requirements  of  section  3678,  R.  S.,  that  ''All 
sums  appropriated  for  the  various  branches  of  expenditure  in  the 
public  service  shall  be  applied  solely  to  the  object  for  which  they 
are  respectively  made,  and  for  no  other,"  lield  that  the  expense 
of  fencmg  a  tract  of  land  the  property  of  the  United  States, 
intended  for  fortification  purposes,  would  not  be  a  legal  charge 
against  an  appropriation  for  river  and  harbor  improvements.  C.  726, 
Jan.  8,  1895.  Nor  where  an  appropriation  was  made  for  "shelling 
or  otherwise  improving  to  completion"  a  certain  designated  road 
between  two  places  named  could  the  appropriation  be  expended  on 
the  construction  of  an  entirely  different  road  from  that  designated. 
C.  3635,  Nov.  9,  1897.  Nor  could  an  appropriation  for  the  support 
of  the  Army  or  for  the  construction  and  maintenance  of  works  of 
river  and  harbor  improvement  be  expended  for  insuring  public 
property  against  fire  or  employees  against  accident.  C.  23069, 
Mar.  16,  1909.  Where  an  appropriation  is  made  expressly  for  a 
^'Cavalry  post"  and  a  bill  to  make  the  appropriation  available  for 
the  construction  of  a  post  for  "mobile  troops"  had  passed  only  one 
House  of  Congress,  Tield  that  in  view  of  section  3678,  R.  S.,  the  appro- 
priation could  not  be  expended  for  the  construction  of  a  post  for 
mobile  troops  other  than  Cavalry,  notwithstanding  that  the  amending 
bill  had  passed  one  House  of  Congress.     C.  2894-8,  Sept.  7,  1911. 

V  A.  Section  3690,  R.  S.,  provides  that  "all  balances  of  appro- 
priations contained  in  the  annual  appropriation  bills  and  made 
specifically  for  the  service  of  a  fiscal  year,  and  remaining  unex-- 
pended  at  the  expiration  of  such  fiscal  year,  shall  only  be  applied 
to  the  payment  of  expenses  properly  incurred  during  that  year,  or 
to  the  fulfillment  of  contracts  properly  made  within  that  year;  and 
balances  not  needed  for  such  purposes  shall  be  carried  to  the  surplus 
fund.^  This  section,  however,  shall  not  apply  to  appropriations 
known  as  permanent  or  indefinite  appropriations."  ^  Held  with 
respect  to  this  section:  (1)  Where  supplies  are  both  ordered  and 
delivered  within  the  fiscal  year  or  a  contract  is  made  providing  for 

^  "Congress  intends  that  each  annual  appropriation  should  bear  the  burdens  of  the 
particular  year  for  which  it  is  granted,  and  that  it  should  be  for  the  proper  use  of  that 
year,  and  no  other."  6  Comp.  Dec,  815,  819.  "It  must  be  remembered  that  an 
annual  appropriation  can  only  be  used  for  the  needs  and  uses  of  the  particular  fiscal 
year  for  which  it  is  made,  or  in  payment  of  contracts  properly  made  for  such  needs 
and  uses."     11  Comp.  Dec,  455.     13  Op.  Atty.  Gen.,  288. 

2  Permanent  appropriations  are  those  made  for  an  unlimited  period;  indefinite 
appropriations  are  those  in  which  no  amount  is  named.    13  Op.  Atty.  Gen.,  288. 


« 


APPROPRIATIONS  V  B.  29 

their  delivery  within  the  year,  the  appropriations  for  that  year  are 
charojeable  therefor,  unless  it  clearly  appears  that  the  amount  was 
manifestly  and  largely  in  excess  of  the  needs  of  the  year,  including 
in  such  needs  the  keeping  of  a  reasonable  stock  on  hand.  As,  for 
instance,  where  forage  was  both  purchased  and  delivered  in  a  certain 
fiscal  year,  but  the  voucher  showed  it  was  intended  for  use  during 
July,  August,  and  September,  of  the  next  fiscal  year,  it  should  be 
paid  for  from  funds  for  the  former  fiscal  year  if  there  was  a  shortage 
m  the  "reasonable  stock  on  hand  "  at  the  time,  otherwise  it  must  be 
paid  for  from  the  funds  of  the  next  fiscal  year.*  (2)  Where  a  con- 
tract is  made  witliin  the  fiscal  year  providing  for  deliveries  within 
the  year,  the  appropriation  for  that  year  would  be  chargeable  there- 
witli,  even  if  the  actual  deliveries  were  not  made  until  after  its  close, 
subject  to  the  limitation  stated  in  (1).^  (3)  Where  a  contract  is 
made  within  a  fiscal  year,  providing  for  delivery  of  supplies  to  begin 
in  that  year,  and  the  deliveries  are  completed  after  its  expiration, 
the  appropriation  for  that  year  would  be  properly  chargeable  if  it 
appears  that  the  supplies  delivered  after  the  expiration  of  the  year 
were  required  to  replace  inroads  made  during  the  year  on  the  ''rea- 
sonable stock  on  hand."  In  such  a  case  the  supplies  could  be  con- 
sidered as  ^^for  the  service  ofthxit  year^  (4)  If  a  non-perishable  article 
is  needed  for  a  given  fiscal  year,  either  for  actual  use  or  to  keep  a 
"reasonable  stock  on  hand,  its  purchase  during  that  year  should 
be  charged  to  the  appropriation  for  that  year,  even  though  its  use 
may  be  continued  for  several  years.  (5)  W^here  a  contract  for  a 
building  is  made  and  construction  begun  within  a  fiscal  year,  the 
appropriation  for  that  year  would  seem  to  be  properly  chargeable 
therewith,  even  though  the  construction  is  not  completed  until 
some  time  after  its  expiration.^  G.  8525,  June  27,  1900,  and  July 
16,  1910;  22225,  Oct.  18,  1907.  ^    ■ 

V  B.  The  expenditure  of  an  unexpended  balance  of  an  appropria- 
tion not  '^made  specifically  for  the  service  of  any  fiscal  year  within 
the  meaning  of  section  3690  R.  S.,  is  not  rendered  illegal  by  the  lapse 
of  time,  as,  for  instance,  10  years  since  the  date  of  the  appropriation. 
C.  4066,  Apr.  27,  1898.  So  where  the  act  of  March  3,  1901  (31  Stat. 
1168),  made  an  appropriation  ^  'Toward  the  enlargement  of  Governors 
Island,  two  hundred  thousand  dollars ;  and  for  the  erection  of  store- 
houses and  other  necessary  buildings,  in  accordance  with  the  plan 

1  4  Comp.  Dec,  555;  6  id.,  898. 

^  Bids  were  invited  about  the  close  of  the  fiscal  year  1910  for  supplying  the  Govern- 
ment with  draft  and  pack  mules  during  that  fiscal  year,  and  the  lowest  bid  was  properly 
accompanied  by  a  guaranty  to  make  good  any  loss  to  the  United  States  resultmg  from 
the  bidder's  failure  to  enter  into  the  contract  or  deliver  the  mules.  The  bidder 
failed  to  enter  into  a  written  contract,  as  required  by  section  3744,  R.  S.,  but  was 
ready  to  deliver  the  mules,  and  the  fiscal  year  ended  before  any  mules  were 
accepted.  It  was  proposed  that  mules  be  accepted  after  the  close  of  the  fiscal  year 
1910,  but  paid  for  out  of  the  appropriation  for  the  fiscal  year  1910.  Held  that  in  view 
of  the  existence  of  the  guaranty,  assuming  that  notwithstanding  the  provisions  of 
section  3744  as  to  contracts  under  the  War  Department,  the  decision  of  the  Comptroller 
in  2  Comp.  Dec,  248,  was  applicable  to  cases  arising  under  the  War  Department, 
mules  accepted  and  delivered  after  the  close  of  the  fiscal  year  1910  could  be  paid  for 
from  the  appropriation  for  the  fiscal  year  1910.  C.  26994,  July  11,  1910.  See,  also, 
9  Comp.  Dec,  10. 

^  See  11  Comp.  Dec,  454,  that  repairs  made  to  a  building  will  ordinarily  be  presumed 
to  be  for  the  needs  and  uses  of  the  particular  fiscal  year  in  which  they  were  ordered, 
although  this  presumption  is  not  conclusive,  but  may  be  rebutted  by  the  facts  in 
each  case.    See,  also,  11  Comp.  Dec,  186,  227. 


30  APPKOPRIATIONS   V   B. 

reported  by  a  board  composed/'  etc.,  lieM  that  as  it  appeared  the 
buildings  were  to  be  of  a  permanent  character  and  were  mtendcd  for 
the  storage  of  the  clothing,  armament,  equipage,  etc.,  of  an  army  of 
considerable  size  and  were  not  merely  for  the  current  needs  of  the 
service  at  Governors  Island,  the  appropriation  should  be  considered 
as  permanent  in  character  and  would  remain  available  until  expended. 
C.  14502,  Apr.  20,  1903.  So,  also,  where  the  act  of  June  8,  1898 
(30  Stat.  437),  made  an  appropriation  ^'For  contingent  expenses  of 
the  Army,  incident  to  the  expedition  to  the  Philippine  Islands,  to 
be  expended  under  the  direction  of  the  commanding  officer  of  the 
United  States  mihtary  forces  at  the  Philippine  Islands,  in  his  dis- 
cretion, for  such  purposes  as  he  may  deem  best  in  the  execution  of  his 
duties  under  the  orders  of  the  President,  and  for  such  objects  as  are 
not  now  appropriated  for,  to  be  available  until  expended."  Held 
that  an  unexpended  balance  of  the  above  appropriation  was  still 
available  in  the  year  1909,  and  lield,  further,  that  if  no  military  map 
was  prepared  at  the  time  of  the  occupation  of  the  Philippine  Islands 
by  the  United  States  forces,  and  if  the  necessity  of  such  a  map  con- 
tinues to  exist,  the  cost  of  its  preparation  in  the  year  1909  is  a  proper 
charge  against  the  above  appropriation.  G.  25291,  July  16,  1909. 
So  where  the  deficiency  appropriation  act  of  March  3,  1899  (30  Stat. 
1223),  contained  this  provision  ''for  emergency  fund  to  meet  unfore- 
seen contingencies  constantly  arising,  to  be  expended  in  the  discretion 
of  the  President,  three  million  dollars,"  held  that  the  appropriation 
was  still  available  in  1905  for  expenditure  for  certain  national  defenses 
in  the  West  Indies.^  G.  17353,  Jan.  7,  1905.  But  even  though  the 
appropriation  is  a  permanent  one,  it  will,  upon  the  accomplishment 
of  the  object  for  which  made,  be  covered  into  the  Treasury .^  Thus 
where  the  act  of  December  18,  1897  (30  Stat.  226),  made  an  appro- 
priation for  the  relief  of  destitute  persons  who  had  gone  into  the 
newly  discovered  Klondike  mining  region  of  Alaska,  and  the  emer- 
gency calling  for  the  appropriation  had  long  since  passed,  Jield  that 
an  unexpended  balance  of  such  appropriation  was  not  available  for 
expenditure  in  the  year  1907.     G.  20718,  Jan.  21,  1907. 

Section  3690  R.  S.,  in  providing  that  balances  of  appropria- 
tions for  any  fiscal  year  remaining  unexpended  at  the  end  of  such  year 
shall  not  be  applied  to  the  "fulfillment"  of  an}^  contracts  except  those 
"properly  incurred  during  that  year,"  ^  expressly  excepts  "permanent 
or  indefuiite  appropriations."  The  existing  law  (sec.  1661  R.  S.) 
makes  a  permanent  appropriation  *  of  a  certain  sum  annually  ' '  for  the 
purpose  of  providing  arms  and  equipments  for  the  militia."  Held  that 
a  balance  of  this  appropriation,  remaining  unexpended  on  the  last  day 
(June  30)  of  a  certain  fiscal  year,  could  legally  be  used  for  the  pay- 
ment of  a  contractor  in  December  following,  under  a  contract  entered 
into  in  November  with  the  Ordnance  Department  for  the  manufac- 

^  In  XV  Comp.  Dec,  576,  this  appropriation  was  held  not  to  be  a  "permanent 
specific"  appropriation  within  the  meaning  of  section  10  of  the  act  of  Mar.  4,  1909 
(35  Stat.  1027). 

2  I  Comp.  Dec,  487.  ButseeXV  Comp.  Dec,  626,  that  an  additional  appropriation 
for  a  stated  purpose  is  tantamount  to  a  reappropriation  of  unexpended  balances  for  the 
same  purpose. 

3  See  6  Comp.  Dec,  815;  id.,  898.^ 

^  This  opinion  is  based  on  the  opinion  of  the  Second  Comptroller  of  the  Treasury 
dated  Nov,  3, 1870,  which  is  the  basis  for  section  26,  vol.  2,  Digest  of  Decisions  of  the 
Second  Comptroller. 


•      APPROPRIATIONS  V  C.  31 

ture  of  an  arm  intended  to  be  issued  to  the  militia.  81  R.,  85,  Dec.  3, 
1S70. 

V  C.  \Miere  there  are  necessary  expenses  connected  with  the 
preparation  of  and  cnterinsj  into  a  contract  payable  from  an  annual 
appropriation  they  may  be  paid  from  such  appropriation  when  it 
becomes  available,  notwithstanding;  that  they  were  actually  incurred 
prior  to  the  bej^jinning  of  the  fiscal  year  for  which  the  appropriation 
was  made.  Thus  where  an  appropriation  for  the  purchase  of  land 
was  available  on  July  1,  1911,  and  durinj^;  the  month  of  June,  1911, 
the  United  States  attorney  incurred  certain  expenses  m  preparino: 
the  abstracts  of  title  to  the  property,  held  that  such  expenses  should 
bo  ])aid  from  the  appropriation.*     C.  29072,  Oct  6,  1011. 

y  D.  An  appropriation  made  for  a  particular  fiscal  year  is  available 
for  the  payment  of  proper  charges  against  it  incurred  during  that 
fiscal  year  2  for  a  period  of  two  years  after  the  expiration  of  the  fiscal 
year.  It  then  lapses  and  is  no  longer  available.  63  P.,  337,  Jan. 
31,  1894'  Thus,  where  the  annual  Army  appropriation  act,  making 
appropriations  for  the  fiscal  year  ending  June  30,  1891,  appropriated 
as  usual  a  certain  sum  for  ''barracks,  quarters,  and  other  buildings," 
lield  that,  to  have  the  benefit  of  this  appropriation  for  the  repair  and 
reconstruction  of  the  public  buildings  at  Jefferson  Barracks,  Mo., 
it  would  be  necessarv  that  such  work  should  be  contracted  for  within 
that  fiscal  year,  and  that  the  funds  appropriated  should  be  availed 
of  and  expended  within  two  years  from  the  date  of  expiration  of  the 
fiscal  year.^    ^9  P.,  320,  Oct.  3,  1891 . 

VI.  In  general  the  Secretary  of  War  is  not  authorized,  without  the 
authority  of  Congress  to  turn  over  property  of  his  department  in  his 
charge  to  another  department  for  its  use.*  So  the  Secretary  of  War 
could  not  authorize  the  Surgeon  General  of  the  Army  to  transfer  to  the 
Secretary  of  Agriculture  certain  instruments  purchased  from  the 
appropriation  for  ''Medical  and  Hospital  Supplies."  61  P.,  414., 
Jan.  25,  1892.  So  a  transit  belonging  to  the  United  States  Military 
Prison  at  Fort  Leavenworth,  which  is  under  the  Department  of 
Justice  could  not  be  transferred  to  the  United  States  Infantry  and 
Cavalry  School  at  Fort  Leavenworth,  which  is  under  the  War  Depart- 
ment. C.  1623,  Aug.  7,  1895.  But  where  the  property  desired  to 
be  transferred  is  no  longer  needed  for  the  purpose  for  which  appro- 
priated, it  may  be  transferred  to  another  department  without  the 
consent  of  Congress.  Such  a  transfer  would  not  be  a  sale  ^  as  the 
Government  would  not  part  with  its  title,  and  it  would  not,  therefore, 
be  open  to  the  objection  that  public  property  can  not  be  disposed  of 
without  the  authority  of  Congress.  Sec.  3678,  R.  S.,  provides  that 
"all  sums  appropriated  for  the  various  branches  of  expenditures 

^  See  I  Comp.  Dec,  472;  5  id.,  486;  6  id.,  898;  7  id.,  595;  11  id.,  189.  See  "Appro- 
priations" VIII. 

2  See  I  Comp.  Dec,  170;  2  id.,  547,  615;  3  id.,  41,  623;  4  id.,  553;  5  id.,  318;  6  id., 
815,  898.  For  instances  of  annual  appropriations,  see  9  Comp.  Dec,  7  58;  11  id.,  529: 
14  id.,  807.  ^^    f  '  F  ,         , 

f  See  sees.  3679,  3690,  3691,  Rev.  Stat.,  and  sec  5,  act  of  June  20, 1874  (18  Stat.  110); 
Digest  Dec.  2d  Comp.,  vol.  3,  p.  31;  Comp.  Dec,  82  (1893-94).  For  a  review  of  the 
laws  and  decisions  relating  to  the  covering  into  the  Treasury  of  balances  of  appropria- 
tions not  used,  see  III  Comp.  Dec,  623. 

^  Par.  682,  A.  E,.,  1910,  provides  that  "supplies"  may  be  furnished  by  one  bureau 
to  another. 

^  Par.  630,  A.  R.,  1910,  provides  that  the  transfer  of  public  propertv  from  one  bureau 
or  department  to  another  is  not  regarded  as  a  sale,  and  provides  for  the  disposition 
of  the  vouchers  for  such  property.    See  also  3d  Comp.,  602;  9  id . ,  025. 


32  APPROPRIATIONS  VI.       * 

in  the  public  service  shall  be  applied  solely  to  the  objects  for  which 
they  are  respectively  made,  and  for  no  others."  While  this  statute  . 
prohibits  the  expenditure  of  an  appropriation  for  purposes  other 
than  those  for  which  appropriated,  yet  if  it  be  regarded  as  intended 
also  to  forbid  the  application  of  property  purchased  from  an  appro- 
priation for  a  particular  purpose  to  a  different  purpose,  it  should 
not  be  construed  to  forbid  such  a  transfer  where  the  property  is  no 
longer  needed  for  the  purpose  for  which  appropriated.  Therefore 
the  property  being  no  longer  needed  for  the  purpose  for  which 
appropriated,  lield  that  two  vessels  belonging  to  the  Navy  Depart- 
ment might  be  transferred  for  a  definite  or  an  indefinite  time  to 
the  War  Department  for  use  as  Army  transports  {C,  78^0,  Mar.  I4, 
1900) ;  that  certain  cooking  utensils,  tableware,  and  soap  purchased 
from  a  river  and  harbor  appropriation  to  be  used  in  connection  with 
the  improvement  of  rivers  and  harbors  in  Florida  could  be  turned 
over  to  an  officer  for  use  in  connection  with  a  river  improvement  in 
Georgia*  {C.  10300,  Apr.  25,  1901);  that  five  mules  purchased  in 
connection  with  certain  harbor  improvement  in  Alabama  could  be 
transferred  to  the  Quartermaster's  Department  of  the  Army  (C. 
3679,  Nov.  26,  1897);  that  a  sailboat  in  possession  of  the  United 
States  engineering  officer  at  San  Juan  could  be  transferred  to  the 
Lighthouse  Board  (C.  1031 S,  Apr.  29,  1901);  that  a  Remington 
typewTiter  in  possession  of  the  Chickamauga  and  Chattanooga 
National  Park  Commission  could  be  exchanged  for  a  Smith  Premier 
in  the  office  of  a  certain  quartermaster  (C.  107Jf.l,  June  25,  1901); 
that  certain  cable  laid  between  Narragansett  Pier  and  Block  Island 
could  be  transferred  to  the  Weather  Bureau  in  the  Department  of 
Agriculture  on  the  condition  that  the  bureau  keep  the  cable  in  repair, 
and  in  case  of  war  or  other  military  necessity  restore  it  to  the  War 
Department  {C.  12883,  June  30,  1902) ;  that  certain  property  belong- 
ing to  the  Medical  Department  of  the  Army  which  had  been  con- 
demned and  ordered  to  be  destroyed  could  be  turned  over  to  the 
Forest  Service  of  the  Department  of  Agriculture  ((7.  21850,  July  26, 
1907), 

It  was  proposed  to  transfer  certain  machinery  purchased  from  an 
appropriation  for  the  District  of  Columbia  to  an  appropriation  for 
a  work  of  river  and  harbor  improvement  and  in  partial  satisfaction 
of  such  machinery  to  transfer  from  the  river  and  harbor  appro- 
priation to  the  District  of  Columbia  a  certain  steamer.  The  act  of 
June  13,  1902  (32  Stat.,  373)  authorizes  the  disposition  of  property 
acquired  for  river  and  harbor  improvements  when  no  longer  needed 
either  by  sale  or  transfer  to  otner  projects  of  improvement,  the 
proceeds  in  case  of  sale  to  be  credited  to  the  appropriation  for  the 
work  for  which  it  was  purchased  or  acquired,  and  in  case  of  transfer 
the  property  to  be  valued  and  credited  to  the  project  in  which  it 
was  formerly  used  and  charged  to  the  project  for  which  it  should  be 
transferred.  Held  that  as  to  the  proposed  exchange  the  above  act 
constitutes  clear  statutory  authority  as  respects  the  river  and  harbor 
improvement  and  the  river  and  harbor  appropriation  should  be 
charged  only  with  the  difference  between  the  value  of  the  machinery  ii 
and  the  value  of  the  steamer.     As  respects  the  District  of  Columbia  II 

^  The  act  of  June  13, 1902  (32  Stat.,  373),  now  authorizes  the  sale  of  property  acquired 
for  the  improvement  of  rivers  and  harbors  when  it  is  "no  longer  needed,  or  is  no  longer 
serviceable." 


APPROPEIATIONS  VH.  33 

there  is  no  statutory  authority.  The  proposed  exchange,  however, 
would  not  bo  a  sale,  as  the  Government  would  not  part  with  its  title, 
and  it  would  not  therefore  be  open  to  the  objection  that  public 
property  can  not  be  disposed  of  without  the  authority  of  Congress, 
and  there  is  no  legal  objection  to  the  sale.  As  there  is  no  statute 
authorizing  the  amount  allowed  for  the  machinery  to  be  credited 
upon  the  project  upon  which  it  had  been  used,  as  in  the  case  of  the 
river  and  harbor  improvement,  the  amount  allowed  should  be 
treated  as  "Miscellaneous  receipts,"  as  recjuired  by  the  statute  for  all 
moneys  received  for  the  use  of  the  United  States  and  should  be 
deposited  in  the  Treasury.  Inasmuch  as  the  machinery  was  originally 
purchased  from  an  appropriation,  one-half  of  which  was  charged  to  the 
revenues  of  the  District  of  Columbia,  one-half  of  the  deposit  should  be 
to  the  credit  of  the  District  of  Columbia.     C.  27202,  Aug.  SO,  1910. 

VII.  A  certain  work  of  river  improvement  required  for  its  com- 
pletion the  expenditure  of  $10,000  more  than  had  been  appropriated 
ty  Congress  for  the  work.  A  power  company  proposed  to  furnish 
and  turn  over  to  the  United  states  to  be  expended  on  this  work" 
the  sum  of  $10,000.  Held  that  the  Secretary  of  War  could  not  let  a 
contract  or  employ  labor,  or  purchase  materials  in  excess  of  the  appro- 
priation, and  that  if  the  ^m  of  $10,000  should  be  furnished  and 
turned  over  as  proposed,  this  sum  could  not  be  expended  on  the  work 
until  it  had  been  appropriated  for  the  work  by  Congress.  Suggested, 
however,  that  an  arrangement  could  be  maae  bjr  which  the  power 
company  could  legally  purchase  and  pay  for  material,  or  pay  laborers 
of  its  own,  and  the  officers  in  charge  of  the  works  could  legally  Use 
this  material  and  the  laborers.  G.  1662,  Aug.  23,  1895.  So,  where 
the  Daughters  of  the  American  Revolution  offered  to  donate  a  sum 
of  money  to  be  expended  in  the  construction  of  a  building  at  a  mili- 
tary post  to  promote  the  physical,  mental,  and  moral  well-being  of 
enlisted  men,  held  that  the  Secret aiy  of  War  was  without  authority 
to  permit  such  a  construction,  and  that  the  consent  of  Congress  should 
be  obtained  for  the  acceptance  and  expenditure  of  the  proposed 
donation.     C.  123U,  Apr.  2,  1902. 

Congress  appropriated  for  a  monument  to  the  prison  ship  martyrs, 
the  appropriation  to  become  available  when  certain  sums  had  been 
appropriated  by  the  State  of  New  York,  and  the  city  of  New  York, 
and  when  a  certain  sum  had  been  subscribed  by  the  Prison  Ship 
Martyrs  Monument  Association.  The  sum  appropriated  by  the  State 
of  New  York  was  transferred  to  the  Secretary  of  War,  who  deposited 
it  in  the  subtreasury  in  New  York,  Jield  that  in  view  of  sections  3621, 
3639,  5488,  5490,  and  5497  R.  S.  the  money  so  deposited  should  be 
considered  as  quasi  public  money  of  the  United  States,  and  should 
remain  on  deposit  in  the  subtreasury  until  disbursed  in  conformity 
to  the  act  of  Congress.     G.  13999,  Feb.  2J,.,  1906. 

VIII.  Where  it  became  necessary  to  make  certain  preliminaiy 
surveys,  plans,  etc.,  in  connection  with  the  completion  of  the  plan 
for  the  enlargement  of  the  Military  Academy,  tield  that  the  expenses 
incident  to  such  preliminary  work  would  be  chargeable  to  the  appro- 
priation for  the  erection  of  the  buildings.  G.  14553,  Apr.  29,  1902. 
So,  held,  where  services  were  rendered  consisting  in  obtaining  infor- 
mation and  data  as  to  the  extent  of  work  done  by  tlie  French  Canal 
Co.  on  the  Isthmus  of  Panama  preliminary  to  the  acquisition  of  the 

31106°— 12 3 


34  APPROPEIATIONS  IX. 

canal  by  the  United  States,  the  services  being  rendered  prior  to  the 
act  of  appropriation.^     G.  16479,  June  18,  1904. 

IX.  When  a  special  appropriation  is  made  for  a  certain  object,  it 
is  an  expression  by  Congress  as  to  the  amount  of  public  money  which 
can  legally  be  expended  for  that  object  and  the  entire  appropriation 
can  not  be  expended  for  the  partial  accomplishment  only  of  that 
object,  thereby  making  an  additional  appropriation  necessary  to 
carry  out  the  original  purpose.^  Thus  where  a  specific  sum  was 
appropriated  for  a  defined  specific  purpose — the  '^  construction  com- 

Elete  of  a  sewerage  system''  at  Fort  Monroe — and,  upon  proposals 
eing  invited  for  the  work,  the  lowest  bid  was  in  excess  of  the  amount 
appropriated,  held  that  the  statute  evidently  contemplated  the 
completion  of  the  system  within  the  appropriation  made,  the  inten- 
tion of  Congress  clearly  being  to  limit  the  cost  of  the  work  to  that 
amount,  and  that  the  appropriation  could  not  therefore  legally  be 
availed  of  for  the  construction  of  a  system  the  completion  of  which 
would  require  an  additional  appropriation.  S5  P.  864,  Sept,  14, 
1892.  So,  held,  where  the  act  of  June  4,  1897  (30  Stat.  50),  appro- 
priated $10,000,  or  so  much  thereof  as  might  be  necessary  '^for  the 
construction  of  the  military  road  from  Fort  Washakie,  Wyo.,  at  the 
most  practicable  route  near  the  Wind  River  and  the  mouth  of  the 
Buffalo  Fork  and  Snake  River,  and  near  Jackson's  Lake  in  Uinta 
County,  Wyo,"  and  it  appeared  that  the  road  could  not  be  constructed 
within  the  limit  of  the  appropriation.  C.  8453,  Aug.  24,  1897.  But 
it  appearing  that  a  portion  of  the  above  road  was  in  fairly  good  con- 
dition, and  that  the  $10,000  expended  on  other  portions  of  the  road 
would  place  the  entire  road  in  fairly  good  condition,  lield  that  the 
appropriation  might  be  so  expended.  G.  8458,  Feb.  15,  1898.  So, 
where  the  act  of  July  19,  1897  (30  Stat.  121),  appropriated  ''for 
repair  of  damages  caused  by  recent  floods  to  the  roadway  leading 
from  the  Mound  City  National  Cemetery  to  Mound  City  and  Mounds, 
111.,  and  to  widen  the  road  and  elevate  the  grade,  $3,500,"  and  it 
appeared  that  all  of  such  improvements  could  not  be  made  within 
the  Hmit  of  the  appropriation,  tield  that  it  would  clearly  be  illegal 
to  expend  the  appropriation  for  a  part  only  of  the  work.  G.  5544i 
Sept.  25,  1897.  So,  also,  where  an  appropriation  was  made  for 
removal  of  the  rock  in  the  North  River  of  New  York  Harbor  to  a 
depth  of  40  feet,  and,  it  appearing  that  it  was  impossible  to  remove 
the  rock  to  such  a  depth  within  the  limit  of  the  appropriation,  it  was 
proposed  to  remove  the  rock  to  a  depth  of  from  35  to  38  feet  onlv.^ 
G.  14878,  Mar.  80,  1908.  So,  where  the  act  of  June  30,  1906  (34  Stat. 
744),  made  an  appropriation  ''for  the  partial  reconstruction  of  the 
Alexander  Bridge  over  the  Chickamauga  River  on  the  eastern  boun- 
dary of  the  Chickamauga  Park,"  and  it  appeared  that  the  estimates 
on  which  the  appropriation  was  based  contemplated  that  a  complete 
structure  should  be  built  for  the  amount  appropriated,  and  that  the 
bridge  could  not  be  completed  within  the  limit  of  the  appropriation, 
and  it  was  proposed  to  contract  for  the  metal  superstructure  only, 

^  I  Comp.  Dec. ,  34.  As  to  a  corresponding  practice  in  relation  to  preliminary  expenses, 
Burveys,  etc.,  in  connection  with  river  and  harbor  improvements,  see  "Appropria- 
tions" VC. 

2  See  Hooe  v.  U.  S.,  218  U.  S.,  322;  I  Comp.  Dec,  291;  6  id.,  194;  7  id.,  665;  8  id. 
27,  326;  9  id.,  638,  560. 

'  See  opinion  of  Comptroller  in  7  Ms.,  159,  referred  to  on  p.  63,  Digest  of  Decisions 
of  the  Comptroller,  1894  to  1902. 


APPROPRIATIONS   X.  35 

held,  that  as  it  is  a  well-established  rule  of  accounting  that  appropria- 
tions based  on  estimates  are  to  bo  construed  with  reference  thereto, 
the  contract  could  not  bo  let  for  completing  a  part  only  of  the  bridge. 
C.  21096,  Feb.  16,  1907.  So,  where  an  act  appropriated  $20,000 
for  continuing  work  under  a  certain  existing  river  and  harbor  project, 
the  act  ])roviding  that  the  Secretary  of  War  might  enter  into  con- 
tracts for  its  completion,  to  be  paid  for  as  future  appropriations  were 
made,  but  limiting  liim  in  the  matter  of  making  the  contracts  to  the 
amount  of  $660,000,  and  it  was  ascertained  that  it  would  cost  over 
$1,000,000  to  do  the  necessary  work,  Jield,  that  in  view  of  sections 
3679,  3732,  and  3733  R.  S.,  the  Secretary  of  War  had  no  authority 
without  further  legislation  to  contract  for  all  the  work  covered 
under  the  existing  project  if  it  could  not  be  done  within  the  limit 
of  the  appropriation;  and  held,  further,  that  the  Secretary  had  no 
authority  to  abandon  a  substantial  part  of  the  work  and  contract 
for  the  remainder  without  further  legislation.  C.  2915,  Feb.  4,  1897. 
So,  held,  where  a  sum  of  money  was  appropriated  for  the  purchase 
of  924  acres  of  land  as  an  addition  to  a  target  range,  and  it  was  found 
that  the  amount  appropriated  was  not  sufficient  to  buy  the  number 
of  designated  acres,  ana  it  was  proposed  to  expend  the  appropriation 
in  purchasing  a  smaller  area,  it  being  reported  that  the  smaller  area 
would  give  substantially  as  good  a  range  as  the  one  originally  pro- 
jected. C.  24464,  Feb.  S,  1909.  So,  held,  also,  where  the  act  of 
June  25,  1910  (36  Stat.  788),  appropriated  a  sum  of  money  for  the 
purchase  of  182.73  acres  of  land  adjacent  to  the  Shiloh  National 
Military  Park,  and  it  was  proposed  to  expend  most  of  the  money 
in  purchasing  some  51  acres  of  the  proposed  addition,  it  being  ex- 
tremely improbable  that  the  additional  acreage  could  be  purchased 
witliin  the  balance  of  the  appropriation.     C.  27363,  Oct.  15,  1910. 

So,  where  the  act  of  June  3,  1896  (29  Stat.  225),  appropriated 
$22,250  and  provided  that  this  sum  ''or  so  much  thereof  as  may  be 
necessary  shall  be  used  at  the  discretion  of  the  Secretary  of  War  in  the 
construction  of  tliree  ice  piers"  at  certain  designated  places,  held, 
that  the  entire  sum  could  not  lawfully  be  expended  on  the  construc- 
tion of  one  ice  pier  at  one  of  the  designated  places.  C.  108 42,  July  18, 
1901.  But  where  an  appropriation  was  made  for  the  purchase  of  an 
entire  tract  of  land  and  it  was  proposed  that  a  part  of  the  tract  be 
purchased  with  a  part  of  the  appropriation,  the  circumstances  indi- 
cating that  the  balance  of  the  appropriation  would  be  sufficient  to 
purchase  the  balance  of  the  tract,  held,  that  the  expenditure  of  a  por- 
tion of  the  appropriation  for  the  purchase  of  a  part  of  the  tract 
under  the  circumstances  would  be  legal.  C.  13580,  Nov.  4,  1902; 
8125,  Jan.  I4,  1909.^ 

X.  It  is  well  established  that  where  an  appropriation  is  made  for 
a  specific  object  it  is  the  only  one  applicable  to  that  object,  although 
but  for  such  specific  appropriation  another  one  more  general  in  terms 
might  have  been  applicable.^    Under  the  above  rule,  where  the  act 

^  See  "Appropriations"  XXIV  and XXXVIII.  That  a  specific  appropriation  is 
exclusive  of  the  general  appropriation,  and  that  the  latter  can  not  be  used  to  supple- 
ment the  former  unless  authorized  by  Congress,  see  I  Comp.  Dec,  10,  57, 126,  236, 317, 
417, 559, 5f)0;  III  id.,  70, 373;  IV  id.,  24;  VI  id.,  124,  743;  IX id.,  259;  XII  id.,  61;  XIII 
id.,  420;XIVid.,689.  Suchauthority  isgivenastothelnterior Department.  IVid.,5. 
Where  it  is  doubtful  whether  a  particular  item  is  properly  payable  from  the  appropria- 
tion for  a  particular  object  or  from  a  general  appropriation,  the  matter  is  within  the 
discretion  of  the  head  of  the  department  having  control  of  the  appropriations.  V  id., 
865.    And  whore  in  such  a  case  the  head  01  a  department  has  exercised  his  discretion 


36  APPKOPRIATIONS  X. 

of  June  30,  1902  (32  Stat.  507),  provided,  ''United  States  Service 
Schools:  To  provide  means  for  the  theoretical  and  practical  instruc- 
tion at  the  artillery  school  at  Fort  Monroe,  Va.;  the  school  of  sub- 
marine defense  at  Willetts  Point,  N.  Y.;  the  general  service  and  staff 
college  at  Fort  Leavenworth,  Kans.,  and  the  cavalry  and  field  artillery 
school  at  Fort  Riley,  Kans.,  by  the  purchase  of  textbooks,  books  of 
reference,  scientific  and  professional  papers,  the  purchase  of  modern 
instruments  and  material  for  theoretical  and  practical  instruction, 
and  for  all  other  absolutely  necessary  expenses,  to  be  allotted  in  such 
proportions  as  may,  in  the  opinion  of  tne  Secretary  of  War,  be  for 
the  best  interest  of  the  mihtary  service,  twenty-five  thousand  dollars," 
Jield,  that  the  appropriation  for  the  general  support  of  the  Army  was 
more  specific  than  tne  above  appropriation  as  to  articles  that  could 
be  furnished  by  the  several  staff  departments,  such  as  quartermaster's 
supplies,  stationery,  etc.  C.  13100,  Aug.  15,  1902,  Dec.  11,  1906. 
So,  also,  where  an  appropriation  for  military  post  exchanges  provided 
for  the  '^  construction,  equipment,  and  maintenance  of  suitable  build- 
ings at  military  posts  and  stations  for  the  conduct  of  the  post  exchange, 
school,  library,  reading,  lunch,  amusement  rooms,  and  gymnasium," 
Tieldj  that  the  appropriation  under  the  above  provision  was  more 
specific  than  the  appropriation  for  incidental  expenses  in  the  quarter- 
master's department  as  to  the  construction  of  a  fence,  grand  stand, 
seats,  etc.,  for  an  athletic  field  at  Fort  Leavenworth.  G.  14970, 
May  13,  1907.  So,  also,  where  an  appropriation  was  made  for  clerical 
services  at  division  and  department  headquarters,  including  clerical 
service  necessary  in  the  bureau  of  mihtary  information,  and  another 
appropriation  was  made  for  clerical  service  in  the  quartermaster's 
department,  lield,  that  the  appropriation  for  clerical  services  at  division 
and  department  headquarters  was  more  specific  than  the  other  appro- 
priation as  to  a  clerk  on  duty  in  the  military  information  division, 
Phihppines  Division,  and  that  the  salary  of  such  clerk  could  not  be 
paid  from  funds  appropriated  for  the  service  of  the  quartermaster's 
department.  G.  204^3,  Sept  29,  1904.  So,  also,  where  the  act  of 
June  12,  1906  (34  Stat.  240),  made  an  appropriation  for  the  Army 
War  College  ''for  expenses  of  the  Army  War  College,  being  for  the 
temporary  hire  of  office  rooms,  purchase  of  the  necessary  stationery, 
office,  toilet  and  desk  furniture,  textbooks,  books  of  reference,  scien- 
tific and  professional  papers  and  periodicals,  binding,  maps,  police 
utensils,  and  for  all  otner  absolutely  necessary  expenses,  fifteen 
thousand  dollars,"  lield,  that  a  general  appropriation  for  the  construc- 
tion of  the  War  College  building  was  more  specific  than  the  above 
appropriation  as  to  electric-Hght  fixtures,  which  would  become  part 
or  the  building,  and  that  the  above  appropriation  could  not  be  used 
to  supplement  the  appropriation  for  the  construction  of  the  building 
for  the  purchase  of  such  nxtures.  G.  20719,  Nov.  24,  1906.  So,  also, 
where  the  act  of  May  11,  1908  (35  Stat.  106),  made  an  appropriation 
for  the  Army  War  College  substantially  similar  to  the  appropriation 
quoted  above  of  June  12,  1906,  lield,  that  as  to  an  electric  dehvery 
wagon  for  the  use  of  the  War  College  the  appropriation  for  the  general 
support  of  the  Army  was  a  specific  act,  and  the  appropriation  for  the 
War  College  should  be  considered  a  more  general  appropriation,  and 

in  determining  which  should  be  so  regarded,  a  subsequent  change  of  this  determination 
is  not  authorized.  XII  id.,  199.  And  where  two  appropriations  are  applicable  to  the 
same  object,  neither  specific  so  as  to  exclude  the  other,  they  are  cumulative,  and  either 
or  both  maybe  used  in  the  discretion  of  the  head  of  the  department.    IV  id.,  121. 


I 


'  APt^fiOPltlATIONS  XI.  SY 

that  the  expense  of  the  deUvery  wagon  should  bo  paid  from  the  appro- 
priation for  the  transportation  of  the  Army.  C.  23560,  July  9,  1908. 
So,  where  the  act  of  August  5,  1909  (36  Stat.  122),  made  an  appro- 
priation for  the  Brownsville  court  of  inquiry  as  follows:  ''For 
expenses  of  the  court  of  inquiry  provided  for  iji  chapter  two  hundred 
and  sixty-five  of  the  act  approved  March  tliird,  nineteen  himdred  and 
nine  (35  Stat.  836) ,  for  services  of  clerks  and  reporters,  witness  fees, 
messenger  and  janitor  service,  and  such  other  employees  as  may  be 
required,  and  for  all  other  absolutely  necessary  expenses;  to  be 
expended  by  the  Pay  Department  of  the  Army  under  the  direction  of 
the  Secretary  of  War,  to  remain  available  during  the  fiscal  year 
nineteen  hundred  and  ten,  fifteen  thousand  dollars,"  Tield,  that  the  above 
appropriation  was  a  specific  one  for  the  expenses  of  the  court  of 
inquiry,  and  that  the  appropriation  for  the  general  support  of  the 
Army  could  not  be  used  to  pa]/"  any  obUgations  incurred  by  the  court 
of  inquiry  after  the  appropriation  above  quoted  should  be  exhausted. 
C.  20754,  Mar,  7,  1910. 

XI.  It  is  a  rule  of  construction  that  general  words  following  the 
enumeration  of  special  articles  or  classes  of  articles  are  to  receive  a  re- 
strictive construction  limited  to  the  articles  or  classes  of  articles  of  a  like 
kind  ^vith  those  specified.*  In  view  of  this  rule,  where  the  act  of  March 
2, 1905  (33  Stat.  827),  appropriating  for  the  School  of  Application  of 
Cavalry  and  Field  Artillery,  enumerated  certain  specific  classes  of  arti- 
cles as  covered  by  the  appropriation,  followed  by  the  words  "and  for 
all  other  absolutely  necessary  expenses,"  held  that  the  above-quoted 
language  was  broad  enough  to  cover  articles  similar  to  those  enu- 
merated— that  is,  articles  peculiar  to  the  needs  of  the  school — and,  there- 
fore, would  cover  certain  special  equipments  not  kept  in  stock  or  issued 
to  the  Army,  but  required  for  use  in  the  course  in  equitation  at  the 
school.  C.  18490,  Sept.  7,  1905;  13100,  Sept.  22,^  1903.  Also,  where 
the  act  of  August  5,  1909  (36  Stat.  122),  providing  for  the  expenses 
of  the  Brownsville  court  of  inquiry,  appropriated  ''for  services  of 
clerks  and  reporters,  witness  fees,  messenger  and  janitor  service,  and 
such  other  employees  as  may  be  required,  and  for  all  other  abso- 
lutely necessary  expenses,"  held  that  the  words  "all  other  abso- 
lutely necessary  expenses"  would  include  the  cost  of  telegrams  sent 
by  the  court  in  the  conduct  of  the  inquiry.  C.  20754,  Fd).  3,  1910. 
Also,  where  the  act  of  June  12, 1906  (34  Stat.  240),  made  an  appropria- 
tion "for  expenses  of  the  War  College,  being  for  the  temporary  hire 
of  office  room,  purchase  of  the  necessary  stationery,  office  andf  desk 
furniture,  textbooks,  books  of  reference,  scientific  and  professional 
papers  and  periodicals,  binding,  maps,  police  utensils,  and  for  all  other 
absolutely  necessary  expenses,"  /leZa  that,  although  the  words  "for  all 
other  absolutely  necessary  expenses"  would  include  drop-hghts  and 
other  necessary  attachments  as  being  a  part  of  office  or  desK  furniture, 
it  was  doubtful  whether  they  would  include  an  electric-light  fixture 
intended  to  become  a  part  of  the  building.  C.  20719,  Nov.  24,  1906. 
Held,  further,  that  the  words  "for  all  other  absolutely  necessary  ex- 
penses" in  the  above  appropriation  for  the  War  College  would  not 
cover  an  electric  delivery  wagon  for  use  at  the  War  College.  C. 
23560,  July  9,  1908. 

^  See  also  Appropriations  XII,  XXXVIII. 
See  Public  Money  I  P. 
VIComp.Dec.,617;  VII  id.,  189;  VIII  id.,  298. 


S8  APPROPRIATIONS  Xlt. 

XII.  Where  acts  of  vandalism  had  been  committed  against  prop- 
erty belonging  to  the  Vicksburg  National  Military  Park,  and  the  act 
of  March  4,  1909,  (35  Stat.  1006),  making  an  appropriation  for  the 
park,  after  specifying  certain  purposes  for  which  the  appropriation 
could  be  expended,  added  ''and  other  necessary  expenses,"  Tield  that 
these  words  of  the  appropriation  were  sufficiently  broad  to  include 
the  payment  of  a  reward  for  the  discovery  of  the  perpetrator  of  the 
vandalism.^  C.  26665,  May  5,  1910.  So,  lield,  also,  where  acts  of 
vandalism  had  been  committed  in  a  national  cemetery  and  the  appro- 

Eriation  was  ''for  maintaining  and  improving  national  cemeteries," 
ut  recommended  that  the  reward  be  only  for  future  acts  of  vandal- 
ism, as  it  mi^ht  be  doubtful  whether  a  reward  offered  for  past  acts 
could  be  considered  as  an  expenditure  for  the  future  maintenance  of 
the  cemetery.     C.  26665,  Aug.  10,  1911. 

XIII.  The  act  of  December  18,  1897  (30  Stat.  226),  appropriated  a 
sum  of  money  "to  be  expended  in  the  discretion  and  under  the  direc- 
tion of  the  Secretary  of  War  for  the  purchase  of  subsistence  stores, 
supplies,  and  materials  for  the  relief  of  people  who  are  in  the  Yukon 
Kiver  country  or  other  mining  regions  of  Alaska,  and  to  purchase 
transportation  and  provide  means  for  the  distribution  of  such  stores 
and  supplies  *  *  *  ^j^g^^  ^j^^  ga^i^j  subsistence  stores,  supplies,  and 
materials  may  be  sold  in  said  country  at  such  prices  as  shall  be  fixed 
by  the  Secretary  of  War,  or  donated  where  he  finds  people  in  need 
and  unable  to  pay  for  the  same."  Held  that  the  above  act  did  not  au- 
thorize the  use  of  the  appropriation  to  reimburse  private  parties  for 
rehef  furnished  by  them  to  tne  class  of  persons  for  whose  benefit  the 
act  was  passed.2  C.  6078,  Mar.  24,  1899;  73U,  Nov.  27,  1899;  7483, 
Jan.  9, 1900;  11077,  Aug.  22, 1901 .  And  where  a  commissary  sergeant 
on  duty  at  a  camp  hired  quarters  at  his  own  expense,  although  if  ap- 
plication had  been  properly  made  the  Quartermaster's  Department 
could  legally  have  hired  quarters  for  him,  lield  that  the  appropriation 
for  barracks  and  quarters  could  not  be  used  to  reimburse  him  for  the 
sums  expended  by  him  in  the  hire  of  quarters,     C.  7383,  Dec.  7,  1899. 

Where  an  appropriation  was  made  "for  repairing  monument  of 
George  H.  Thomas  Post  Numbered  Two,  Grand  Army  of  the  Republic, 
in  the  San  Francisco,  Calif  ornia.  National  Cemetery,  three  hundred  dol- 
lars" (34  Stat.  1347),  and  the  repairs  had  been  voluntariljr  made  by 
George  H.  Thomas  Post,  lield  that  as  there  was  no  restriction  on  the 
expenditure  of  the  money  and  the  appropriation  was  intended  as  a 
contribution  on  the  part  of  the  United  States  to  the  cost  of  repairing 
the  monument,  there  was  no  legal  objection  to  reimbursing  the  post 
for  the  repairs.     C.  22305,  Nov.  1,  1907. 

XIV.  Money  appropriated  for  the  improvement  of  rivers  and 
harbors  is  not  available  for  the  payment  of  damages  ^  suffered  by 
individual  citizens  on  account  of  injury  to  their  property  caused  by 
the  negligence  of  the  employees  of  the  Government  or  the  defective 
construction  of  a  pubHc  work  {54  P.,  390,  July  26,  1892),  nor  for  the 

^  See  V  Comp.  Dec,  119.  See  Appropriations  XI  for  construction  of  the  words 
"and  for  other  absolutely  necessary  expenses." 

2  See  V  Comp.  Dec,  257;  VIII  id.,  43,  584;  IX  id.,  688;  XI  id.,  486;  IV  id.,  314, 
409;  XII  id.,  48,  308;  XIII  id.,  783,  for  decisions  relating  to  reimbursement. 

3  The  act  of  June  25,  1910  (36  Stat.,  676),  now  authorizes  the  Chief  of  Engineers,  sub- 
ject to  the  approval  of  the  Secretary  of  War,  to  adjust  and  settle  all  claims  for  damages 
to  the  amount  of  $500  arising  from  a  collision  between  a  vessel  engaged  on  river  and 
harljor  work  colliding  with  and  damaging  another  vessel,  pier,  or  other  legal  structure, 
and  provides  that  a  report  on  the  matter  shaU  be  made  to  Congress  for  its  consideration. 


I 


APPROPRIATIONS   XY.  39 

employment  by  the  month  or  otherwise  of  a  civilian  physician  to 
treat  civilian  employees  of  the  Government  engaged  on  such  works 
of  improvement,  nor  for  the  payment  of  damages  for  personal  injuries 
received  while  on  such  work  \  (0.  1696,  Aug.  31, 1895;  23069,  Apr.  14, 
1908);  nor  is  an  appropriation  for  the  improvement  of  rivers  and 
harbors  in  the  ''district"  of  a  certain  Enj^^meer  officer  available  for 
pavin*]:  the  expenses  of  that  officer  in  attending  a  congress  of  engineers 
m  raris,  the  omcer  having  been  detailed  for  that  purpose  as  a  represent- 
ative of  the  Corj)s  of  Engineers  (55  P.,  134,  Aug.  W,  1892);  nor  is  an 
appropriation  for  the  improvement  of  the  Ohio  River  available  for 
the  removal  of  an  ice  gorge  closing  a  part  of  the  river  opposite  Cincin- 
nati and  threatening  the  destruction  of  floatino:  property  (57  P.,  293, 
Jan.  13,  1893);  nor  is  an  appropriation  for  ''improving  East  River 
and  Hellgate;  removing  obstructions"  available  for  the  payment  of  a 
claim  interposed  by  certain  tug  o\vners  for  personal  services  in  assist- 
ing to  put  out  a  fire  on  a  dredge  used  by  the  Government  in  the 
improvement  (63  P.,  386,  Feb.  5,  1894);  nor  is  an  appropriation  for 
"improving"  a  certain  river  available  for  the  reimbursement  of 
United  States  employees  for  losses  of  personal  effects  caused  by  the 
sinking,  without  tneir  fault,  of  a  vessel  employed  in  the  improvement 
(44  P',  87,  Nov.  25,  1890).  But  under  an  appropriation  for  the 
"improvement  of  the  Yellowstone  National  Park,  held  that  the 
Secretary  of  War  would  be  authorized  to  purchase  a  bridge,  the 
private  property  of  a  person  who,  before  the  park  was  reserved,  had 
constructed  the  same  over  the  Yellowstone  River  on  one  of  the 
principal  thoroughfares  and  where  a  bridge  was  indispensable,  such 
bridge  being  in  good  condition  and  clearly  an  "improvement." 
62P.,  15,  Oct.  10,1893. 

Held  that,  while  Engineer  officers  engaged  upon  civil  works  were 
entitled,  like  other  officers  on  duty,  to  the  allowances  of  fuel,  forage, 
and  quarters  authorized  by  sections  8  and  9  of  the  Army  appropria- 
tion act  of  June  18,  1878  (20  Stat.  150),  no  part  of  the  appropriations 
specially  made  for  such  works  by  Congress  could,  in  the  absence  of 
express  statutory  authority  for  the  purpose,  be  devoted  to  the  pur- 
chase of  fuel  for  such  officers  or  to  the  payment  to  them  of  the  com- 
mutation allowance  for  quarters. ^    4^  ^-j  ^4^,  July  29,  1878. 

XV.  Where  an  appropriation  was  made  for  ' '  a  permanent  military 
camp  of  instruction  and  concentration  "  at  Pine  Plains,  N.  Y.,  and  the 
owners  of  the  property  gave  an  option  to  the  Government  agreeing  to 
give  "a  good  and  sufficient  full  covenant  deed"  to  their  premises, 
free  and  clear  from  all  rights  of  dower  and  from  all  incumbrances,  but 
without  specific  reference  to  furnishing  an  abstract  of  title  to  the 
premises,  held  that  the  owners  of  the  property  were  under  no  legal 
obligations  to  furnish  an  abstract  of  title,  and  that  the  expense  of 
procuring  abstracts,  certificates,  and  evidence  of  title  and  of  recording 
the  deeds  is  properly  chargeable  to  the  appropriation  for  the  purchase 

1  See  to  the  same  effect  I  Comp.  Dec,  62,  181;  II  id.,  347;  V  id.,  943  and  944;  VI 
id.,  955;  VII  id.,  407;  VIII  id.,  29(5;  also  Cir.  39,  A.  G.  O.,  Oct.  25, 1900,  publishing  an 
opinion  of  Oct.  4,  1900,  of  the  comptroller. 

^  Statutory  authority  now  exists  for  paying  commutation  of  quarters,  see  act  Feb.  27, 
1911  (36  Stat.  957),  which  provides  "That  officers  of  the  Corps  of  Engineers,  when  on 
duty  under  the  Chief  of  Engineers,  connected  solely  with  the  work  of  river  and  harbor 
improvements  may,  while  so  employed,  be  paid  their  pay  and  commutation  of  quar- 
ters from  the  appropriations  for  the  work  or  works  upon  which  they  are  employed. " 


40  APPROPRIATIONS  XVI. 

of  the  land '  (C.  25U6,  Aug.  26,  1909;  15698,  Oct.  5,  1910;  29072, 
Oct.  6,  1911);  held,  also,  that  if,  under  the  facts  recited  above,  it  was 
necessary  to  have  a  survey  made  of  the  several  tracts  of  land,  the 
expense  could  be  paid  out  of  the  appropriation  for  the  purchase  of 
the  land.  C.  25U6,  Nov.  11,  1909.  So,  held,  as  to  the  expense  of 
recording  patents,  deeds,  etc.,  respecting  land  through  wliich  a  right 
of  way  was  being  acquired  by  purchase.  C.  15698,  Oct.  5,  1910.  So 
where  a  claim  was  made  against  the  United  States  for  real  estate  taxes 
alleged  to  be  due  at  the  time  the  United  States  purchased  the  land 
and  it  was  necessary  to  institute  a  tax  search,  held  that  the  expense  of 
the  tax  search  should  be  paid  from  the  appropriation  from  which  the 
land  was  purchased.  C.  10027,  Feb.  26,  1902.  So  where  certain 
taxes  were  a  lien  against  land  at  the  time  it  was  acquired  by  the  United 
States.  Held  that  the  taxes  could  be  paid  from  the  appropriation 
from  which  the  land  was  purchased  or  from  a  subsequent  appropria- 
tion for  the  same  purpose.  C.  23913,  Dec.  27,  1910.  Held,  also, 
that  an  expenditure  for  abstracts  of  title  from  the  appropriation  for 
the  purchase  of  the  property  would  be  valid,  notwithstanding  the 
fact  that  after  the  abstracts  had  been  prepared  certain  defects  in  the 
titles  were  discovered  which  made  it  necessary  to  resort  to  condemna- 
tion proceedings.  C.  2544^,  Feb.  16,  1910.  But  held  that  expenses 
connected  with  proceedings  to  condemn  land  for  public  purposes  are 
ordinarily  payable  from  the  appropriations  made  for  the  Department 
of  Justice.2     C.  15110,  Mar.  19,  1907. 

XVI.  The  pubhc  resolutions  No.  17,  20,  and  21  of  April  30  and 
May  11,  1908,  providing  for  the  relief  of  persons  made  destitute  by 
storms,^  authorized  the  Secretary  of  War  to  ''use  such  means  as  he 
has  at  hand  or  that  may  be  furnished  to  him  in  the  way  of  tents,  pro- 
visions, and  supplies,  to  relieve  the  distress  occasioned  by  such  storm 
or  cyclone,"  and  further  authorized  the  Secretary  to  "procure  in  open 
market  or  otherwise  subsistence  and  quartermasters'  supplies,  medi- 
cines, and  medicinal  aid  belonging  to  the  military  establishment  and 
available,"  and  to  issue  the  same  to  destitute  persons,  held  that 
under  the  above  resolutions  the  Secretary  could  use  the  funds  appro- 
priated to  replace  stores  belonging  to  the  military  establishment 
which  had  been  issued  to  the  beneficiaries  of  the  resolutions,  and  as 
the  appropriation  was  a  continuing  one  purchases  to  replace  the 
stores  so  issued  might  be  made  without  regard  to  the  fiscal  year. 
C.  23289,  May  22,  1908.  And  where  under  the  above  resolution  an 
officer  was  ordered  from  his  station  to  Cleveland,  Tenn.,  to  carry  on 
relief  work  with  directions  that  when  the  work  was  accomplished  he 
should  report  that  fact  with  a  view  to  his  being  ordered  to  return  to 
his  proper  station,  held  that  the  journey  of  the  officer  from  his  station 
to  Cleveland  and  return  constituted  ordinary  travel  in  the  public 
service,  the  cost  of  which  would  properly  be  reimbursed  by  the  pay- 

1  SeelllComp.  Dec,  216;  VIII  id.,  212;  IX  id.,  5G9.  But  the  cost  of  an  abstract  of 
title  to  lands  owned  by  the  United  States  is  a  lawful  charge  against  the  contingent  fund 
of  the  department  acquiring  the  property,  V  Comp.  Dec,  62.  See  VI  Comp.  Dec, 
133,  as  to  payment  for  services  of  attorney  in  preparing  abstract  of  title. 

2  See  I  Comp.  Dec,  317;  II  id.,  201;  III  id.,  216;  IX  id.,  569,  793;  X  id.,  538.  See 
also  XVI  Comp.  Dec ,  593,  holding  that  when  land  has  been  condemned  and  the  court 
in  rendering  judgment  includes  in  the  judgment  or  award  certain  costs,  such  judgment, 
including  costs,  will  be  a  legal  charge  against  the  appropriation  to  acquire  the  site  when 
the  payment  of  the  judgment  was  made  a  condition  precedent  to  vesting  title  in  the 
Government. 

^  See  "Appropriations"  XXXVI. 


APPROPRIATIONS  XVll.  41 

ment  of  mileage;  but  that  the  cost  of  travel  and  subsistence  while 
entT^a<i:o(l  in  administering  relief  in  the  district  under  his  charge,  not 
being  in  the  nature  of  travel  from  one  place  to  another  in  the  opera- 
tion of  military  orders,  but  rather  an  incident  of  the  relief  work  itself, 
would  constitute  a  charge  against  the  appropriations  made  by  the 
above  resolutions.^  C.  23289,  May  27,  1908.^  Held  further,  that  the 
unexpended  balance  of  the  funds  so  appropriated  could  not  be  used 
for  the  relief  of  sufferers  from  a  flood  occurring  nearly  a  year  later 
and  in  a  different  locaUtv.     C.  23289,  Sept.  27,  1909. 

The  act  of  Mav  13,  1902  (32  Stat.  108),  made  appropriation  'Ho 
enable  the  President  of  the  United  States  to  procure  and  distribute 
among  the  suffering  and  destitute  people  of  the  islands  of  the  French 
West  Indies  such  provisions,  clothing,  medicines,  and  other  necessary 
articles  and  to  take  such  other  steps  as  he  shall  deem  advisable  for 
the  purpose  of  rescuing  and  succoring  the  people  who  are  in  peril  and 
threatened  with  starvation."  Held  that  the  above  act  did  not  author- 
ize the  extending  of  relief  to  destitute  persons  in  the  Danish  West 
Indies,  and  held,  further,  that  it  did  not  authorize  the  relief  of  desti- 
tute persons  b}^  the  payment  of  money  to  such  persons  {C.  13008, 
July  24,  1902),-  and  further  held  that  the  purpose  of  the  act  was  to 
extend  immediate  reUef  and  that  aid  requested  almost  two  years  after 
the  passage  of  the  act  should  be  refused.     C.  161 84,  Apr.  19, 1904- 

XVII.  The  act  of  March  3,1911  (36  Stat.  1047),  provided  ''For  the 
construction,  operation,  and  maintenance  of  laundries  in  Army  posts 
in  the  United  States  and  in  its  island  possessions."  Held,  in  accord- 
ance with  the  decisions  of  the  comptroller,^  that  the  above  appropri- 
ation would  not  be  available  for  the  purchase  of  a  post-exchange 
laundry  building  with  its  machinery  and  fixtures  belonging  to  a  post 
exchange  as  the  appropriation  specifically  provided  for  the  construc- 
tion of  buildings  and  would  not  be  available  for  the  purchase  of  build- 
ings already  constructed.     C.  15026,  Jan.  22,  1912. 

XVIII.  There  is  no  legal  objection  to  the  expenditure  of  public 
money  in  works  of  improvement  on  lands  to  which  title  has  not  been 
acquired  in  the  absence  of  a  statute  forbidding  the  same,  provided  the 
Government  will  be  assured  that  the  benefit  of  the  expenditure  will  be 
received.  So,  held,  that  an  appropriation  for  the  transportation  of 
the  Army  could  be  expended  on  a  public  highway  where  neither  the 
title  nor  an  easement  was  in  the  United  States  ^  (C.  15264,  Sept.  12, 
1906;  22355,  Nov.  16,  1907;  23041,  Apr.  17,  1908);  also,  held,  that 
an  appropriation  for  "Roads,  walks,  wharves,  and  drainage"  could 
be  so  expended  on  a  highwav  {C.  5843,  Mar.  29,  1909),  or  on  a  side- 
walk {C.  22191,  Nov.  2,  1910).  So,  where  the  act  of  March  3,  1899 
(30  Stat.  1225),  appropriated  a  sum  of  money  for  the  erection  of  a 
monument  to  Sergt.  Floyd,  there  being  no  words  in  the  act  providing 
for  the  acquisition  by  the  United  States  of  the  title  to  the  site  on 
which  the  monument  was  to  be  located,  held  that  the  monument 
could  be  erected  without  acquiring  title  to  the  site.     C.  7842,  Mar.  20, 

^  See  "Appropriations"  XIX;   see  also  IV  Comp.  Dec,  86. 

2  See  decisions  of  the  comptroller  of  Nov.  24,  1911,  and  Dec.  9,  1911.  See  the  con- 
struction of  similar  language  in  connection  with  post  exchanges.  "Appropria- 
tions" XXIX. 

^  The  provision  in  the  sundry  civil  act  making  appropriation  for  repairing  roadways 
to  national  cemeteries,  has  for  a  number  of  years  provided  "That  no  part  of  this  sum 
shall  be  used  for  repairing  any  roadway  not  owned  by  the  United  States  within  the 
corporate  limits  of  any  city,  town,  or  village." 


42  APPROPRIATIONS   XIX. 

1900.  So,  where  it  was  desired  to  extend  a  levee  over  certain  private 
lands,  Tield  that  it  was  not  necessary  for  the  United  States  to  obtain 
the  title  before  constructing  the  levee,  but  that  an  easement  in  the 
land  would  be  sufficient.  C.  5089,  Oct.  7,  1898,  and  Nov.  4,  1898. 
So,  lield,  also,  where  land  was  required  for  laying  a  pipe  line.  C. 
14719,  Jan.  31,  1908. 

Where  the  United  States  owned  and  had  exclusive  jurisdiction 
over  a  mihtary  reservation  subject  to  a  right  of  way  through  the 
same  of  a  public  highway,  Tield  that  although  the  duty  of  repairing 
public  highways  for  the  general  benefit  of  the  public  rests  on  the 
proper  highway  authorities  and  not  on  the  owner  of  the  soil  over 
which  the  highways  run,  and  although  the  owner  is  under  a  passive 
obligation  to  permit  the  public  to  exercise  the  right  to  repair  and 
use  the  land  within  the  limits  of  the  highway  for  highway  purposes 
and  not  to  obstruct  the  exercise  of  such  rights,  yet  if  the  repair  of 
such  a  road  would  be  useful  for  military  purposes,  the  expense  of 
such  repairing  would  be  a  legal  charge  against  the  funds  pertaining 
to  the  general  appropriation  for  army  transportation  of  the  quarter- 
master's department.  C.  3683,  Nov.  27,  1897.  So,  lieU,  that  such 
a  highway  running  through  a  national  cemetery  could  be  repaired  at 
Government  expense.     C.  20373,  Apr.  28,  1910. 

In  order  to  discharge  the  sewage  from  the  military  reservation 
near  Jeffersonville,  Ind.,  it  was  necessary  to  construct  a  sewer  out- 
side the  reservation.  The  city  offered  to  construct  the  sewer  for  the 
sum  of  $9,658  and  to  give  the  Government  the  perpetual  right  to 
connect  with  the  city  sewer.  Held  there  was  no  legal  objection  to 
the  proposed  expenditure.  C.  19415,  Mar.  27, 1906;  C.  6831,  June  24, 
1902.  So  where  it  was  necessary  to  construct  a  sluice  gate  outside 
a  military  reservation  in  order  to  properly  drain  the  reservation  and 
to  prevent  it  from  being  flooded  at  high  tide,  held  there  was  no  legal 
objection  to  purchasing  for  the  sum  of  $1,000  from  the  company 
owning  the  gate  the  right  to  drain  the  water  of  the  military  reserva- 
tion through  the  gate  in  question  and  the  appropriation  for  ' '  roads, 
walks,  wharves  and  drainage"  could  be  used  for  such  purchase. 
0.29127,  Oct.  17,1911. 

XIX.  Where  certain  officers  of  the  Army  were  defendants  in  a  cause 
in  which  the  United  States  was  interested,  and  their  defense,  before 
the  United  States  court,hadbeenundertakenby  the  Department  of  Jus- 
tice, held  that,  while  not  entitled  to  mileage  from  any  appropriation  for 
the  support  of  the  Army,  their  necessary  expenses  in  gomg  to,  attend- 
ing, and  returning  from  the  court  constituted  a  legitimate  charge  against 
the  appropriation  ''for  defraying  the  expenses  *  *  *  of  suits  in 
which  the  United  States  is  interested.  "^     51 R.,  590,  Mar.  2,  1887. 

1  The  payment  of  the  traveling  expenses  of  these  officers  was  subsequently  authorized 
from  the  appropriation  for  contingencies  of  the  Army.  In  XII  Comp.  Dec. ,  649,  i:^  was 
held  that  the  actual  expenses  of  officers  of  the  Army  in  attending,  by  authority  of  the 
Secretary  of  War,  upon  a  State  court  as  witnesses  for  the  United  States,  in  a  case  in 
which  the  United  States  is  a  party,  may  be  paid  from  the  appropriation  for  contingent 
expenses  of  the  War  Department,  and  that  the  appropriation  "Transportation  of  the 
Army"  is  not  properly  chargeable.  (But  see  X  Comp.  Dec,  648.)  Circulars,  A.  G.  O., 
Apr.  23, 1887,  contains  a  synopsis  of  an  opinion  of  the  Attorney  General,  as  follows: 

"To  avoid  any  doubt  about  the  method  of  payment  of  the  expenses  of  these  officers 
it  is  better  in  all  cases  that  when  they  are  the  nominal  defendants  in  suits  brought 
against  them  in  the  official  discharge  of  their  dvities  they  should  be  suljpcenaed  on 
the  part  of  the  Government,  who  is  the  party  in  interest,  to  appear  as  witnesses." 

See,  also,  par.  75,  A.  R.,  1910. 


APPROPRIATIONS  XX.  48 

Heldj  that  the  appropriation  for  the  recruiting  service — *'for  ex- 
penses of  recruiting  and  transportation  of  recruits" — was  not  avail- 
able for  the  payment  of  mileage  of  o(hcei-s  for  travel  wliile  on  recruiting 
service,  but  that  the  same  was  chargeable  to  the  general  appropriation 
for  the  mileage  and  cost  of  transportation  of  officers.^  P.  41 ,  i06,  May 
29,  1890.  But  where  a  specific  appropriation  is  made  for  a  work  of 
improvement  and  traveUng  expenses  are  incurred  in  the  supervision 
or  execution  of  such  work,  the  assumption  would  bo  that  Congress 
intended  the  appropriation  for  the  improvement  to  be  exclusive  and 
that  it  could  not  be  supplemented  from  other  appropriations.  So, 
lield,  where  an  appropriation  was  made  for  increasing  the  water 
supply  at  West  Pomt  and  it  was  necessary  for  the  engineer  officer 
in  charge  to  travel  in  connection  with  the  inspection  of  water  pipe 
and  the  examination  of  land  records,  etc.^  C.  16459,  June  16,  1904. 
So  the  expense  of  travel  required  in  connection  with  the  manufacture 
and  inspection  of  torpedoes  would  not  constitute  a  charge  against 
the  mileage  appropriation  of  the  Army,  but  would  be  a  charge  against 
the  appropriation  for  the  ''Purchase  of  submarine  mines  and  neces- 
sary apphances  to  operate  them."     C.  13728,  Dec.  1,  1902. 

The  joint  resolution  of  February  24,  1911  (30  Stat.  1457),  provided 
for  an  investigation  by  a  commission  of  Army  officers  as  to  the 
availability  of  certain  grounds  for  maneuver  purposes,  and  added 
"that  the  said  board  or  commission  shall  serve  without  compensa- 
tion, but  shall  be  paid  actual  necessary  expenses."  Held  that  the 
"actual  necessary  expenses"  are  chargeable  against  the  proper  Army 
appropriations,  and  tnat  the  effect  is  to  suspend,  as  to  that  particular 
case,  the  operation  of  the  laws  under  which  mileage  allowances  are 
paid,  and  to  substitute  for  such  allowances  "actual  necessary  ex- 
penses."    C.  28005,  Mar.  22,  1911. 

XX.  Held  that  the  transportation  expenses  of  officers  and  enlisted 
men  and  of  their  mounts  to  enable  them  to  attend  an  international 
horse  show  in  London,  England,  might  be  paid  from  Army  appro- 
priations.    C.  28017,  Mar.  24,  1911.^ 

^  See  opinions  of  2d  Comptroller  Gilkeson  in  Digest  of  Decisions  of  2d  Comp.,  Vol.  V, 
sec.  813,  holding  that  mileage  due  a  recruiting  officer  for  travel  performed  is  payable 
from  the  appropriation  ' '  Pay,  etc. ,  of  the  Army . ' '  ' '  Payment  from  the  appropriation 
'Expenses  of  recruiting'  is  improper  under  the  well-established  rule  that  where  Con- 
gress has  made  a  specific  appropriation  for  any  purpose  the  use  of  any  other  appro- 
priation is  thereby  precluded." 

'^  See  par.  1529,  A.  E,.,  1910,  as  to  the  mileage  of  engineer  officers  on  service  connected 
with  fortifications  or  works  of  public  improvement.     See  "Appropriation, "  XVI. 

2  See  par.  14,  S.  O.  254,  War  Dept.,  Nov.  10,  1910,  ordering  certain  oflicers  and 
enlisted  men  to  duty  pertaining  to  an  international  horse  show  in  New  York.  Where 
certain  officers  and  enlisted  men  were  ordered  to  Pimlico,  Md,,  in  connection  with 
a  race  kno\%Ti  as  the  ' '  Army  officers  service  cup  race, ' '  the  transportation  involved  was 
approved  by  the  Comptroller  in  an  unpublished  opinion  under  date  of  Dec.  19,  1910, 
as  follows:  "The  questioning  the  availability  of  the  appropriation  is  solely  because 
of  the  purpose  for  which  the  shipment  was  made  and  goes  to  the  discretion  of  the 
department  in  ordering  the  shipment  as  public  business.  I  personally  may  not 
countenance  attending  or  participating  in  a  horse  race  and  may  not  perceive  what 
in  connection  with  the  Army  may  be  there  achieved,  but  I  apprehend  rac^es  are  run 
at  military  posts  and  that  under  other  Governments  the  military  participate  in  races. 
It  is  for  the  Secretary  of  War  to  determine  the  policy  of  the  War  Department  in  this 
respect.  Whether  the  purpose  in  the  present  case  was  one  tending  to  the  efHcioncy 
of  the  Army  was  none  the  less  the  exercise  of  a  legal  discretion  because  of  the  place 
where  the  race  was  to  be  run.  The  commanding  officer  reported  it  as  a  matter  of 
specaal  military  interest  and  of  regimental  and  Army  importance  generally,  and  the 
approval  of  the  Secretary  of  War,  reported  by  the  Adjutant  General,  was  a  deternnna- 
tion  that  it  tended  to  the  efficiency  of  the  Army  enough  to  justify  shipping  the  horses 


44  APPEOPRIATIOiTS  It. 

Where  a  considerable  force  of  troops,  constituting  an  organized 
command,  under  the  command  of  a  major  general,  was  being  trans- 
ported from  New  York  to  Manila  via  the  Suez  Canal,  and  at  several 
ports  where  the  transport  touched  certain  official  calls  were  made, 
necessitating  the  employment  of  carriages,  held  that  the  carriage 
hire  was  a  proper  charge  against  the  appropriations  for  the  Quarter- 
master's Department.     C.  25821,  Nov.  22,  1909. 

The  appropriation  for  the  transportation  of  the  Army  should 
bear  expenses  incurred  under  the  following  circumstances:  The  cost 
of  transportation  of  baggage  of  an  officer  ordered  to  report  for  duty 
pertaining  to  the  mounting  of  a  gun  to  be  exhibited  at  the  Pan 
American  Exposition  at  Buffalo,  the  duty  being  considered  as 
military  {C.  10587,  June  4,  1901);  the  expense  incident  to  the  move- 
ment of  a  company  of  Coast  Artillery  to  another  station  in  connection 
with  the  Pan  American  Exposition  at  Buffalo,  the  movement  being 
treated  as  military  in  its  nature  {C.  10825,  July  16,  1901);  the  cost 
of  transportation  of  the  battalion  of  cadets  of  the  Military  Academy 
to  the  Pan  American  Exposition  at  Buffalo  {C.  10863,  July  16,  1901); 
the  cost  of  transportation  of  an  insane  general  prisoner  from  his 
place,  of  confinement  to  the  Government  Hospital  for  the  Insane  at 
Washington  ((7..  20052,  July  13, 1906);  the  cost  of  dredging  to  enable 
troops  and  supplies  to  be  landed  at  a  Coast  Artillery  post  {C.  2Ifi02, 
Oct.  23,  1908);  a  claim  for  salvage  as  general  average  against  Gov- 
ernment property  being  transported  in  a  private  vessel  (C.  17725, 
Mar.  31,  1905;  26396,  Mar  24,  1910).^  But  where  a  soldier  was 
arrested  by  the  civil  authorities  at  a  military  post  and  transported 
to  a  distant  point  and  there,  after  examination  by  the  civil  authori- 
ties, discharged,  held  that  the  expense  of  returning  him  to  his  proper 
station  was  not  a  charge  against  the  appropriation  for  Army  trans- 
portation. C.  2529,  Mar.  20,  1911.  Also  where  an  appropriation 
was  made  for  the  construction  of  a  particujar  set  of  quarters  in 
Alaska,  and  the  Government  purchased  the  material  on  Puget  Sound, 
and  the  question  arose  as  to  what  appropriation  should  bear  the 
expense  of  transportation  to  Alaska,  held  that  the  cost  of  transporta- 
tion should  not  be  paid  from  the  appropriation  for  the  transportation 
of  the  Army,  but  from  the  appropriation  for  the  construction  of  the 
quarters.  C.  18314,  July  21,  1905.  So  where  in  inviting  bids  for 
the  construction  of  a  building  in  Alaska,  it  was  agreed  to  transport 
the  building  material  of  the  contractor  free  of  charge  from  Seattle, 
held  that  the  cost  of  transportation  of  such  material  should  be  paid 
from  the  appropriation  for  the  construction  of  the  building.  C. 
25056,  June  5,  1909. 

The  decision  as  to  whether  the  cost  of  providing  and  maintaining 
means  of  transportation  between  individual  batteries  at  seacoast 
forts,  or  between  the  posts  and  the  several  batteries  at  those  posts, 
or  between  a  wharf  and  the  batteries,  should  be  charged  against  the 
appropriation  for  fortifications  or  against  the  appropriation  for 
transportation  of  the  Army,  should  as  a  general  rule  be  controlled  by 
this  consideration — that  where  the  means  of  transportation  is  planned 
as  an  integral  and  inseparable  part  of  the  project,  and  for  such  rea- 
sons appropriate  to  be  placed  under  the  exclusive  control  of  the 

there  at  Government  expense.  Under  that  authorization  I  view  the  shipment  as 
public  business,  for  the  payment  of  which  the  appropriation  'Transportation  of 
the  Army  and  its  supplies'  is  available.  To  say  otherwise  would  be  an  arbitrary  con- 
clusion unsupported  by  any  definite  facts.  So  much  as  to  the  availability  of  the_ 
appropriation." 


I 


APPROPRIATIONS   XXI.  45 

combatant  force,  the  cost  of  construction  and  maintenance  is  prop- 
erly chargeable  to  appropriations  for  fortification  purposes;  but 
where  these  considerations  do  not  predominate  and  the  work  is  done 

Erimarily  as  a  means  of  transportation,  the  necessary  funds  should 
e   drawn  from   the   appropriation  for  Army   transportation.^     C. 
13998,  Feb.  17,  1903. 

Held  that  the  expense  of  mining  coal  at  a  Government  coal  mine, 
carrying  it  to  tide  water,  and  transporting  it  to  the  place  where  it 
would  be  used,  should  be  charged  against  the  appropriation  for 
"  Transportation  of  the  Army."     C.  21659,  Oct.  12  and  Nov.  10,  1908. 

XXI.  The  Army  appropriation  act,  under  the  head  of  ''Incidental 
expenses  of  the  (Quartermaster's  Department,"  ^  appropriates  for 
certain  specified  objects  and  for  ''such  additional  expenditures  as  are 
necessary  and  authorized  by  law  in  the  movements  and  operation  of 
the  Army  and  at  military  posts."  Held  that  the  phrase  "authorized 
by  law"  refers  to  statutory  authority^  and  that  therefore  the  rental 
of  a  piece  of  OTOund  for  light  artillery  practice,  not  having  been 
authorized  by  law,  can  not  oe  paid  from  the  appropriation  for  inci? 
dental  expenses,  but  that  the  expense  would  be  a  legitimate  charge 
against  the  appropriation  for  contingent  expenses  of  the  Army,  as  the 
latter  appropriation  covers  expenses  "not  provided  for  by  other 
estimates."  62  P.,  208,  Nov.  2,  1893.  So  where  it  was  desu-ed  to 
cut  down  trees  on  private  property  adjoining  a  fort,  the  trees  masking 
a  portion  of  the  field  of  fire  of  the  fort  guns  at  approaching  maneuvers, 
held  that  as  the  expenditure  was  clearly  necessary  and  as  it  had  to  do 
with  the  instruction  of  the  garrison  in  the  use  or  armament  provided 
by  la\^,  it  should  be  regarded  as  "authorized  by  law"  within  the 
meaning  of  the  clause  providing  for  incidental  expenses.  C.  18108, 
June  6,  1905. 

XXII.  The  appropriations  for  the  support  of  the  Army  and  those 
for  the  support  of  the  Military  Academy  are  distinct  and  separate, 
and  funds  appropriated  for  the  former  can  not  be  used  to  defray  the 
expenses  of  the  latter;  but  as  West  Point  is  at  one  and  the  same  time 
a  military  post  and  a  military  academy,  appropriations  for  the  sup- 
port of  the  Army  can  be  expended  for  strictly  Army  purposes  at 
the  Mlitary  Academy.'*  Therefore,  an  appropriation  for  the  sup- 
port of  the  Army  for  "barracks  and  quarters"  is  available  for  the  hire 
of  extra-duty  labor  for  repairs  to  post  buildings  at  West  Point.  C. 
11106,  Aug.  27,  1901.  Also  the  general  appropriations  for  the  sup- 
port of  the  Army  for  "water  and  sewers,  military  posts,"  from  which 
apparatus  for  extinguishing  fires  at  military  posts  is  usually  pur- 
chased, is  available  for  the  purchase  of  fire  extinguishers  to  be  used  at 
West  Point.  C.  28776,  July  29, 1911.  Also  an  appropriation  for  the 
support  of  the  Army  for  "construction  and  repair  of  hospitals  of  mili- 
tary posts  already  established  and  occupied"  is  available  for  the 
installation  of  a  sanitary  closet  and  bath  fixtures  at  the  "soldiers' 
hospital"  at  West  Point.  C.  13471,  Oct.  16,  1902.  But  the  appro- 
priation for  the  support  of  the  Army  would  not  be  available  to  pay  for 
the  services  of  an  arcliitect  to  prepare  plans  for  a  building  at  West 
Point.  C.  10689,  June  17,  1901.  rTor  to  supplement  the  appropria- 
tion for  the  master  of  the  sword,  the  pay  of  that  officer  being  provided 
for  by  the  appropriation  for  the  Military  Academy,  and  that  appro- 

^  See  XIII  Comp.  Dec,  559.  3  xv  Comp.  Dec,  740. 

2  See  "Appropriations,"  XXXIX.  *  V  Comp.  Dec,  812. 


46  APPEOPRIATIONS  XXIII. 

priation  being  through  error  insufficient  to  pay  the  full  amount 
authorized  by  law.     C.  18009,  May  18,^  1905. 

Fort  Bayard,  N.  Mex.,  although  designated  in  orders  as  a  general 
hospital,  continues  to  be  a  military  post,  and  the  appropriation  in  the 
act  of  March  2,  1903  (32  Stat.,  937),  ''for  construction  of  quarters  for 
hospital  stewards  at  military  posts  established  and  occupied"  is  avail- 
able for  the  construction  of  quarters  for  hospital  stewards  on  duty  at 
Fort  Bayard.     G.  U894,  July  1,  1903. 

Where  the  appropriation  for  the  construction  of  the  War  College 
had  become  exhausted  and  it  was  still  necessary  to  do  certain  grading 
about  the  grounds,  remove  rubbish,  and  police  the  grounds,  and  make 
certain  underground  electrical  connections,  Jield  that  as  the  War  Col- 
lege was  located  at  Washington  Barracks,  a  military  post,  and  was 
intended  for  the  instruction  of  officers  of  the  Army,  tne  expense  of 
the  above  work  could  be  paid  for  out  of  the  general  appropriations 
for  the  support  of  the  Army.  G.  20719,  Jan.  30,  1907.  So,  also, 
where  it  was  necessary  to  replace  the  electric  light  main  leading  to  the 
War  College  with  one  having  heavier  insulation,  and  it  appeared  that 
the  entire  cable  was  outside  the  War  College  building  and  was  a  part 
of  the  post  lighting  system,  lield  that  for  the  reasons  given  above,  the 
expense  could  properly  be  charged  against  the  general  appropriations 
for  the  Army.     CI.  20719,  July  9,  1907. 

XXIII.  Section  214  R.  S.  provides  that  "There  shall  be  at  the  seat 
of  Government  an  executive  department  to  be  known  as  the  Depart- 
ment of  War,  and  a  Secretary  of  War,  who  shall  be  the  head  thereof." 
In  a  general  way  it  may  be  said  that  the  Department  of  War  comprises 
within  its  administrative  forces  a  number  of  offices  called  the  bureaus 
of  the  War  Department.  These  bureaus  represent  the  civil  side  of 
the  military  administration,  and  their  clerks  and  certain  of  their  sup- 
plies are  appropriated  for  by  Congress  in  the  appropriation  for  the 
''Legislative,  executive,  and  judicial"  expenses  of  the  Government. 
Such  are  the  offices  of  The  Adjutant  General,  Quartermaster  General, 
Commissary  General,  etc.  While  these  bureaus,  so  far  as  their  clerical 
forces  and  all  nonmilitary  persons  connected  therewith  are  concerned, 
are  supported  by  an  appropriation  in  a  civil  bill,  the  officers  of  the 
Army  attached  to  these  oureaus  are  paid  under  the  appropriation  for 
the  support  of  the  Army.  G.  21587,  Mar.  10,1911.  As  the  contingent 
expenses  of  the  Board  of  Ordnance  and  Fortification  are  provided  for 
in  the  fortification  bill  this  board  should  not  be  considered  as  an  inte- 
gral part  of  the  War  Department  and  telephone  service  for  the  board 
would  not  be  a  charge  against  the  appropriation  for  "Contingent 
expenses  of  the  War  Department,"  but  should  be  made  against  the 
appropriation  for  fortifications.     C.  14377,  Mar.  28,  1903. 

XXIV.  The  appropriation  for  "Contingencies  of  the  Army"  ^  is 
restricted  in  its  operation  to  cases  arising  in  the  administration  of  the 

^  For  many  years  prior  to  the  act  of  April  23,  1904  (33  Stat,  259),  making  appropria- 
tion for  the  support  of  the  Army  for  the  year  1905,  the  wording  of  the  act  of  appropriation 
for  the  contingent  expenses  of  the  Army  was  "for  all  contingent  expenses  of  the  Army 
not  provided  for  by  other  estimates,  and  embracing  all  branches  of  the  military  service, 
to  be  expended  under  the  immediate  orders  of  the  Secretary  of  War.  "  Since  that  date 
the  wording  has  been  as  follows :  * '  For  all  contingent  expenses  of  the  Army  not  otherwise 
provided  for,  and  embracing  all  branches  of  the  military  service,  including  the  office  of 
the  Chief  of  Staff,  to  be  expended  under  the  immediate  orders  of  the  Secretary  of  War. " 
Under  sec.  3683  R.  S.  the  expenditure  from  contingent  funds  must  be  authorized  by 
the  head  of  the  department  prior  to  incm-ring  the  expenses.  I  Comp,  Dec,  566;  II  id. 
1.  This  appropriation  is  also  available  for  paying  the  compensation  of  reporters  before 
examining  boards. 


APPROPRIATIONS   XXIV.  47 

Army  proper  as  distinguished  from  other  estabUshments,  such  as  the 
MiHtary  Academy,  the  needs  of  wliich  are  made  the  subject  of  a 
separate  act  of  appropriation.     To  warrant  expenditures  from  the 
appropriation  for  the  ''Contingencies  of   the  Army"  the  object  of 
expenditure,  first,  must  be  one  that  is  necessary,  useful,  or  appropriate 
to  the  Army  proper;  second,  must  have  the  character  of  an  incidental, 
casual,  unforeseen,  or  emergency  expense;  and  tliird,  must  not  come 
within  the  scope  of  any  other  appropriation  for  the  support  of  the 
mihtary   establishment.^     C.  7030,  Sevt.  18,  1899;  27415,   Oct.  27, 
1910.     Under  the  foregoing  rules,  Tield,  that  the  expenditure  could 
properly  be  made  from  the  appropriation  ''Contingencies   of   the 
Army"  in  the  following  cases:  For  carriage  liire  in  connection  with 
the  funeral  of  a  President,  in  view  of  the  fact  that  he  was  the 
constitutional  Commander  in  Chief  of  the  military  forces  {C.  II4S8, 
Oct.  23,  1901);  for  the  expense  of  enOTaving  and  lettering  two  Span- 
ish cannon  captured  at  Santiago,  which  had  been  presented  to  the 
city  of  San  Francisco  {C.  1044^,  June  1,  1901);  for  tlie  traveling  and 
other  expenses  of  the  Assistant  Secretary  of  War  in  connection  with 
awarding  the  national  trophy,  medals,  and  other  prizes  contested 
for  annually  and  provided  for  in  the  act  of  March  2, 1903  (32  Stat.  941) 
(C.  14668,  May  11,  1903);  for  the  expense  connected  with  the  erec- 
tion of  certain  appliances  for  field  sports  for  the  use  of  troops  assem- 
bled at  St.  Louis  to  participate  in  the  ceremonies  incident  to  the 
dedication  of  the  World's  Fair  {0.  14991,  July  24,  1903);  for  the 
payment  of  a  bill  presented  by  a  justice  of  the  peace  who  on  request 
furnished  a  post  commander  with  a  statement  of  the  offenses,  results 
of  trial,  etc.,  m  the  cases  of  three  soldiers  tried  before  him  {C.  14856, 
June  26,  1903);  for  the  employment  of  a  secretary  or  clerk  to  the 
[  Panama  Fortification  Board  appointed  by  order  of  the  War  Depart- 
I  ment  {C.  26071,  Jan.  15,  1910);  for  witness  fees  and  mileage  of  a 
j  witness  appearing  before  an  Army  officer  who  had  been  detailed  to 
I  collect  certain  information  concerning  the  violation  of  the  neutrality 
I  laws  {C.  28241,  June  20,  1911);  also  for  the  expenses  of  a  witness 
I  appearing  before  an  Army  officer  detailed  to  investigate  an  alleged 
j  theft    by  a  soldier   from    a  civihan   {0.    28033,    Mar.   28,    1911); 
i  for  the  expense  connected  with  the  service  of  a  summons  upon  a 
distant  witness  who  was  required  to  appear  before  an  Army  officer 
detailed  to  investigate  an  alleged  theft  by  a  soldier  from  a  civilian 
{C.  28033,  Mar.  28,  1911);  for  supplies  furnished  troops  while  fight- 
ing a  forest  fire  under  orders,  the  issue  of  such  supplies  having  been 
considered  necessary  under  the  circumstances  (C.  27395,  Oct.  22  and 
Dec.  8, 1910);  for  the  salary  and  expenses  of  a  member  of  the  Secret 
Service  of  the  Treasury  Department  detailed  to  assist  the  mihtary 
authorities  to  discover  certain  frauds  committed  in  connection  with 
the  mihtary  estabfishment  (C.  18866,  Nov.  24,  1905,   May  23,  1906, 
and  Aug.  20,  1909) ;  for  the  expenses  incident  to  the  journeys  of  a 
civihan  lecturer  for  the  Artillery  School,  Fort  Monroe  ^  {C.  14278, 
Mar.  21,  1903);  for  the  expenses,  including  attorney's  fees,  of  a  civil 

1  IV  Comp.  Dec,  287;  V  id.,  151. 

2  See  XII  Comp.  Dec,  519,  holding  that  "The  appropriation  for  the  United  States 
service  schools  is  applicable  for  the  payment  of  the  travel  expenses  of  a  civilian  incurred 

,  m  the  delivery  of  a  series  of  lectures  before  the  Infantry  and  Cavahy  School  and  Staff 
j  College  at  Fort  Leavenworth,  Kans.,  the  notes  of  which  are  to  remain  as  a  textbook  for  the 
^instruction  of  subsequent  classes. "    See  also  XVI  Comp.  Dec,  845. 


48  APPRbPRIATIONS   XXIV. 

employee  incurred  by  him  in  connection  with  his  arrest  for  an  act  in 
the  hne  of  his  duty '  (C.  8972,  June  18,  1909) ;  for  the  expense  to  an 
Army  officer  of  providing  a  bond  where  he  was  sued  for  damages  for 
an  injury  to  a  person  run  over  by  a  Government  automobile  in  which 
he  was  traveling  on  official  business  {C.  28517,  July  10,  1911);  for  the 
removal  of  the  bodies  in  an  Indian  cemetery,  the  removal  being  made 
necessary  by  the  erection  of  buildings  as  a  part  of  a  military  post 
(C.  22657,  Jan.  22,  1908);  for  the  services  and  expenses  of  a  civilian 
who  returned  to  his  proper  station  an  insane  soldier,  supposed  to  be  a 
deserter,  found  wandering  about  at  a  distance  from  his  post  {C.  1407, 
June  3, 1895,  and  Oct.  28,  1910;  13776,  Bee.  9,  1902);  for  the  services 
and  expenses  incurred  by  a  civil  officer  pursuant  to  request  of  the 
military  authorities  in  apprehending  a  soldier  supposed  to  be  a 
deserter  but  who  in  fact  was  not  such  and  was  not  held  out  as  such 
by  the  military  authorities,  and  no  reward  for  his  apprehension  as 
a  deserter  therefore  could  legally  be  paid  {0.  17327,  Apr.  29,  1907, 
Mar.  25  and  Apr.  8,  1908,  and  Jan.  8,  1909,  Nov.  23  and  Dec.  10, 
1910);  for  the  payment  of  a  reward  promised  or  expenses  incurred 
on  request,  in  addition  to  the  reward  for  desertion  where  the  soldier 
was  not  only  charged  with  desertion  but  with  embezzlement  or  other 
crimes 2  {C.  16578,  July  18, 1904;  17327,  Aug.  25,  1909) ;  for  the  pay- 
ment of  a  reward  to  ascertain  the  origin  of  certain  suspicious  fires  that 
had  occurred  at  a  military  post  {C.  28784,  July  31,1911);  for  the  pur- 
chase of  a  map  to  be  used  in  connection  with  a  progressive  military  map 
of  the  United  States,  a  dispute  having  arisen  between  the  officer  obtain- 
ing it  and  the  owner  as  to  whether  it  was  donated  or  not  {G.  29303, 
Dec.  13,  1911);  for  the  repayment  to  a  contractor  of  the  insurance 
prepaid  by  Mm  upon  an  Armstrong  gun  transported  to  the  United 
States  {53  P.,  80,  Apr.  7,  1892) ;  for  payment  for  the  services  of  an 
expert  bookkeeper  in  making  an  examination  of  the  books  of  an 
officer  charged  with  a  criminal  offense  before  a  court-martial  in  order 
to  qualify  the  expert  to  testify  before  the  court-martial  as  a  witness 
{C.  4960,  Sept.  23,  1898;  5718,  Jan.  30,  1899);  for  the  board  and 
lodging  of  a  deserter  who  had  been  turned  over  to  the  police  of  the 
city  by  an  Army  officer  for  safekeeping  until  the  arrival  of  a  military 
guard  {C.  8585,  July  13, 1900;  8742,  Aug.  10, 1900) ;  for  payment  of  a 
reasonable  compensation  to  a  person  who  carried  a  message  to  the 
regular  and  insurgent  forces  of  Mexico  operating  close  to  the  American 
border,  the  message  being  sent  from  the  commanding  officer  of  the 
American  troops  who  were  guarding  the  border  to  prevent  violations 
of  neutrafity  {C.  22132,  May  3,  1911);  for  payment  for  services 
rendered  and  expenses  incurred  as  secret  agent  for  a  military  attache 
of  the  United  States  during  the  Spanish  War  {C.  5130,  Oct.  15,  1898); 
for  the  payment  of  a  reasonable  compensation  to  a  civilian  official 
or  private  civilian  for  the  purpose  of  serving  a  summons  or  sub- 
poena in  connection  with  the  trial  of  a  case  by  court-martial  (the 
fees  or  expenses  of  such  service  would  not  be  a  charge  against  the 
appropriation  for  expenses  of  courts-martial,  courts  of  inquiry,  etc.); 
in  a  case  where  the  service  could  not  have  been  otherwise  so  eilect- 
ually  and  economically  made  (R.  43,  284,  ^K-  ^^)  1880;  53, 

1  XV  Comp.  Dec,  621.  »  xi  Comp.  Dec,  124;  XVI  id.,  132. 


APPROPRIATIONS  XXIV.  49 

Aw-.  29,  1887;  32  P.,  365,  May  20,  1889;  51,  407,  Jan.  23,  1892; 
C.  5549,  Dec.  20,  1898;  13418,  Oct.  9,  1902);  for  payment  of  tlio 
expenses  of  maintenance  (including  the  payment  of  $5  and  the  fur- 
nisidng  of  a  suit  of  civilian  clotliing  on  discharge)  of  an  olficer  serv- 
ing a  court-martial  sentence  in  a  State  penitentiary^  {C.  16023,  Apr. 
2,  1904;  16238,  Feb.  3,  1905). 

Held  that  an  appropriation  ''for  shelter,  shooting  galleries,  ranges, 
repairs,  and  expenses  mcident  thereto"  was  intended  for  target  prac- 
tice with  small  arms,  and  would  not  cover  the  rental  of  a  piece  of 
ground  for  artillery  practice,  but  that  such  rental,  being  of  small 
amount  (i.  e.,  for  the  occupation  of  the  ground  for  a  few  days  only), 
might  properly  be  considered  a  legitimate  charge  against  the  appro- 
priation for  the  contingencies  of  the  Army.     62  P.  209,  Nov.  2,  1893. 

As  the  appropriation  for  contingencies  of  the  Army  is  to  meet  neces- 
sary and  appropriate  expenses  in  connection  with  the  Army  ''not 
otherwise  provided  for,"  this  appropriation  is  not  available  any  more 
than  is  any  other  general  appropriation,  to  supplement  a  specific  appro- 
priation for  furnishing  certain  suppUes  or  rendering  certain  services. ^ 
C.  12521,  July  24,  1902;  14113,  Oct.  22,  1903.  So,  where  a  sum  was 
appropriated  for  repairs  to  the  old  Ford  Theater  building  and  this 
amount  was  found  to  be  insufficient,  held  that  the  appropriation  for 
Army  contingencies  could  not  be  used  to  supply  the  deficiency.  62  P. 
74,  Oct.  19,  1893.  The  Army  appropriation  act,  approved  August  6, 
1894  (28  vStat.,  236),  provided  for  the  employment  of  clerks  and  mes- 
sengers in  several  designated  offices  and  provided  for  "not  exceeding" 
125  clerks  at  various  indicated  salaries  and  45  messengers  at  a  certain 
salary  and  provided  that  all  were  to  be  employed  and  apportioned  to 
the  several  lieadquarters  and  stations  by  the  Secretary  of  War.  Two 
clerks  in  excess  of  the  authorized  number  were  employed  for  a  short 
time.  Held,  that  the  act  appropriating  salaries  for  the  125  clerks 
amounted  to  a  provision  of  law  that  no  more  than  that  number  should 
be  employed  on  the  work  specified  in  the  act,  and  hence  prohibited  the 
employment  or  payment  or  the  two  extra  clerks  from  such  appropria- 
tion,^ and  held  further,  the  two  extra  clerks  could  not  be  paid  from  the 
contingent  fund  as  such  fund  is  for  expenses  of  the  Army  "not  other- 
wise provided  for,"  wliile  the  employment  of  clerks  not  in  excess  of  a 
certam  number  is  expressly  "provided  for"  in  the  specific  appropria- 
tion.    C.  295,  Sept.  15, 1894. 

In  the  followmg  instances  the  expenditure  was  held  not  to  be 
chargeable  against  the  appropriation  for  contingencies  of  the  Army: 
For  medical  trreatment  of  a  civil  employee  injured  on  work  being  car- 
ried on  for  the  benefit  of  the  District  of  Columbia,  the  reason  being 
that  the  appropriation  for  contingencies  of  the  Army  is  for  "all 
branches  of  the  military  service,"  while  the  work  that  the  employee 
was  engaged  in  was  not  of  a  military  character,  and  the  person  for 
whom  the  medical  treatment  would  be  furnished  would  not  be  an 
officer,  soldier,  or  military  employee,  but  would  be  a  civilian  laborer 

^  In  this  case,  as  the  confinement  was  for  only  one  year,  it  could  not  be  executed  in 
the  United  States  Penitentiary  at  Fort  Leavenworth. 

2  See  "Appropriations"  X. 

3  See  I  Comp.  Dec,  291;  VIII  id.  27. 

31106°— 12 4 


50  APPROPRIATIONS   XXV. 

(44  P'  ^58 J  Bee.  23, 1890) ;  for  the  burial  expenses  of  a  civilian  employee  ^ 
{C.  7030,  Sept.  18,  1899;  16757,  Aug.  16,  1904;  17563,  Feb.  15,  1905; 
for  damages  to  private  property  caused  by  ice  falling  from  the  roof  of 
a  public  building  under  the  control  of  the  War  Department  {52  P. 
48,  Feb.  6, 1892) ;  for  expenses  incurred  in  transporting  Canadian  half- 
breed  Indians  from  Montana  to  Canada  {C.  5816,  Feb.  4,  1899).  As 
the  United  States  is  not  legally  responsible  for  the  torts  of  its  officers 
or  agents  the  Secretary  of  War  could  not  authorize  from  the  appropria- 
tion for  ''all  contingent  expenses  of  the  Army  not  otherwise  provided 
for/'  the  pajT-ment  of  damages  as  compensation  for  personal  injury 
to  a  native  Fihpino  accidently  shot  on  a  rifle  range.^  C.  27214,  Aug. 
27, 1910. 

The  payment  of  copyists  emj)loyed  in  the  bureaus  of  the  War 
Department  out  of  the  appropriation  for  Army  contingencies  would  be 
an  expenditure  for  clerical  compensation  and  is  therefore  prohibited 
by  sec.  3682  R.  S.     C.  1154,  Mar.  25,  1895. 

It  is  questionable  whether  the  expense  of  selling  a  portion  of  a 
military  reservation  under  an  act  of  Congress  can  be  regarded  as  an 
expense  pertaining  to  the  Army  within  the  meaning  of  the  appropria- 
tion "for  all  contingent  expenses  of  the  Army."  C.  22572,  May  15, 
1911. 

XXV.  The  Army  appropriation  act,  provided  ''for  expenses  of 
courts-martial  ^  and  courts  of  inquiry  and  compensation  of  witnesses," 
lield  that  the  expenses  of  a  witness  belonging  to  the  Navy  or  Marine 
Corps  incurred  in  attending  an  Army  court-martial  was  a  proper 
charge  against  the  above  appropriation.  C.  17465,  Jan.  31,  1905. 
So,  lield,  that  the  cost  of  railroad  tickets  for  an  indigent  witness  to 
enable  him  to  attend  a  court-martial,  might  be  paid  from  the  above 
appropriation,  the  amount  paid  to  be  noted  on  the  witness  vouchers 
with  a  view  to  its  deduction  in  final  settlement  of  their  accounts. 
C.  22915,  Mar.  30,  1908.  So,  held,  also,  as  to  the  legal  fee  of  the 
proper  official  for  a  certified  copy  of  a  marriage  certificate,  necessary 
to  be  used  in  evidence  in  a  case  of  trial  before  a  court-martial.  P.  19, 
423,  Oct.  8,  1887;  ^  C.  17929,  May  2,  1905.  So,  lield,  also,  as  to  the 
expense  of  procuring  a  transcript  of  a  steno^apher's  notes  of  testi- 
mony taken  before  a  U.  S.  Commissioner  in  a  matter  necessary 
to  the  prosecution  of  a  soldier  before  a  general  court-martial.  U. 
17929,  Jan.  21,  1911.     And  so,  lield,  as  to  the  expense  of  employing 

^  The  act  of  June  7, 1897  (30  Stat.  86),  provides  that:  "Hereafter  the  heads  of  depart- 
ments shall  not  authorize  any  expenditure  in  connection  with  transportation  of  remains 
of  deceased  employees  except  when  otherwise  specifically  provided  by  law. "  See, 
also,  pars.  501  and  502,  A.  R.,  1910;  also,  VI  Comp.  Dec,  447,  where  it  is  held,  quoting 
from  the  syllabus:  **The  appropriation  for  incidental  expenses  of  the  Quartermaster's 
Department  is  applicable  to  the  expense  of  burying  the  remains  of  a  deceased  civilian 
employee  of  that  department,  where  such  burial  is  necessary  for  the  prevention  of 
unsanitary  conditions,  but  not  otherwise. "  See  also,  the  opinion  of  the  comptroller 
of  Oct.  4, 1900,  published  in  Cir.  39,  A.  G.  O.,  Oct.  25, 1900. 

2  Although  such  claims  have  been  repeatedly  brought  to  the  attention  of  Congress, 
that  body  has  failed  to  appropriate  for  their  payment.     (See  "Claims.  ") 

3  As  sec.  1248,  R.  S.,  confers  upon  retiring  boards  certain  powers  of  a  court-niartial 
and  a  court  of  inquiry,  it  is  the  practice  to  charge  against  the  annual  appropriation  for 
expenses  of  courts-martial,  etc.,  the  payments  for  reporters  employed  on  retiring 
boards. 

The  compensation  of  reporters  for  examining  boards  who  have  been  employed  by 
proper  authority  is  a  charge  against  the  appropriation  for  contingencies  of  the  Army. 


ii 


APPROPRIATIONS   XXVI.  51 

a  reporter  for  a  court  of  inquirv  convened  at  the  Military  Academy 
to  inquire  into  the  liazing  of  cadets,  as  cadets  are  a  part  oi  the  Army. 
C.  6971,  Sept.  2,  1890.  So,  held,  also,  as  to  the  fees  of  a  notary  for 
swearinjjj  a  witness  in  the  taking  of  a  deposition.  C.  13418,  Mar.  29, 
1911.  But  where  an  officer  who  served  a  subpoena  made  affidavit 
of  the  service  before  a  notary,  the  affidavit  being  wholly  unnecessary, 
lield,  the  expense  should  be  charged  against  the  officer.  C.  18418, 
Feb.  11,  1908.  But  held  that  the  above  appropriation  referred  to 
compensation  of  civilian  witnesses  only,  and  aid  not  apply  to  retired 
officers  of  the  Army  ordered  to  appear  as  witnesses  before  courts- 
martial.  P.  28,  291,  Nov.  24,  1888.  Held,  further,  that  although 
a  summons  or  subpoena  may  legally  be  served  either  by  a  military 
or  a  civil  person,*  but  wiU  in  general  preferably  be  served  by  an  officer 
or  noncommissioned  officer  of  the  Army,  yet  as  there  is  no  express 
authority  for  the  employment  by  a  judge  advocate  of  a  United  States 
marshal  or  other  civil  official  or  civilian  for  the  purpose  of  serving  a 
summons  or  subpoena,  the  fees  or  expenses  of  such  a  person  in  con- 
nection with  the  service  would  not  be  a  proper  charge  against  the 
above  appropriation,  but  advised  that  in  a  case  where  the  service 
could  not  have  been  otherwise  so  effectually  and  economically  made 
a  reasonable  compensation  might  be  paid  from  the  appropriation  for 
contingencies  of  the  Army.  R.  43,  284,  Apr.  10,  1880;  53,  399,  Apr. 
29,  1887;  P.  82,  365,  May  20,  1889;  51,  407,  Jan.  23,  1892;  C.  5549, 
Dec.  20,  1898;  13418,  Oct.  9,  1902.  The  expense  of  a  witness  belong- 
ing to  the  Army  incurred  in  attending  a  naval  court-martial  is  not  a 
charge  against  any  appropriation  for  the  Army.  C.  17465,  Sept.  3, 
1909. 

XXVI.  Telegrams  containing  applications  for  leaves  of  absence,  for 
extension  of  same  and  inquiries  as  to  whether  they  have  been  granted, 
independently  of  par.  1209,  A.  R.  (1203  of  1910),  are  not  ''telegrams 
on  official  business"  within  the  meaning  of  the  act  making  an  appro- 
priation for  payment  of  ''cost  of  telegrams  on  official  business,"  and 
can  not  therefore  be  paid  for  from  that  appropriation.^  C.  6935, 
Sept.  6,  1899.  But  where  two  soldiers,  one  absent  on  sick  furlough 
and  the  other  on  account  of  reenlistment  furlough,  applied  to  the  post 
commander  for  an  extension  of  their  furloughs,  and  that  officer  not 
having  the  authority  to  act,  wired  the  department  commander  for 
such  authority,  held  that  the  telegram  was  sent  on  official  business.^ 

1  See  G.  0.  93,  Headquarters  of  the  Army,  Nov.  9,  1868. 

2  Referring  to  this  case  the  Comptroller  in  VI  Comp.  Dec,  422,  said:  "It  requires 
no  argument  to  show  that  leaves  are  granted  for  the  benefit  of  the  persons  and  that 
any  cost  relating  thereto  should  not  be  borne  by  the  United  States.  I  have  to  advise 
*    *    *    that  said  telegrams  should  not  be  paid  for  by  the  United  States." 

Where  a  brigade  surgeon,  U.  S.  V.,  in  charge  of  a  hospital  at  Philadelphia,  Pa., 
sent  certain  telegrams  with  a  view  to  obtaining  leaves  of  absence  for  officers  in  said 
hospital  who  were  convalescent  to  enable  them  to  go  to  their  homes  and  thus  relieve 
the  hospital  of  their  care  and  enable  it  to  retain  accommodations  for  others  of  the  sick 
who  might  be  sent  there  for  treatment,  the  Secretary  of  War,  under  date  of  Nov.  17, 
1899,  said:  "The  sending  of  such  telegrams  under  the  circumstances  is  viewed  as  not 
only  an  official  act  performed  in  pursuance  of  duty,  but  as  also  in  the  interests  of  the 
military  service,  and  is  not  regarded  as  subject  to  the  provisions  of  par.  1209  A.  R. 
(1203  of  1910),  which  are  held  as  applying  to  applications  for  personal  loaves  and 
therefore  does  not  come  within  the  scope  of  the  opinion  of  the  Comptroller  of  the  Treas- 
ury and  the  Judge  Advocate  General  of  the  Army." 

^  See  XIV  Comp.  Dec,  940,  approving  this  opinion. 


52  APPROPRIATIONS   XXVIII. 

C.  23362,  June  4,  1908.  And,  also,  lield,  that  par.  1196  A.  R.  (1203 
of  1910)  does  not  apply  to  a  telegram  requesting  extension  of  a  sick 
leave,  and  that  such  a  telegram  is  on  official  business.  C.  23362,  Apr. 
16,  1910. 

A  post  surgeon  wired  to  his  official  superiors  requesting  that  an 
assistant  surgeon  at  the  post,  who  was  under  orders  to  change  station, 
be  retained  on  duty  at  the  post  on  account  of  illness  in  the  families  of 
certain  officers;  held  that  the  telegram  was  on  ofiicial  business.  C. 
17871,  Apr.  21,  1905. 

Held,  that  telegrams  sent  and  received  by  the  governor  and 
adjutant  general  of  New  Mexico  and  by  the  commissioned  officers 
in  the  United  States  Volunteer  Army,  and  which  relate  to  recruiting 
organizations  of  the  Volunteer  Army  of  the  United  States  raised  in 
New  Mexico  are  "official"  and  may  be  paid  for  as  telegrams  sent  and 
received  in  carrying  on  official  business  of  the  Government,  out  of 
the  appropriation  in  the  Quartermaster's  Department  made  for  that 
purpose,  and  at  the  rates  fixed  for  other  official  telegrams.  C.  4670, 
July  26,  1898. 

The  cost  of  telegraphic  messages  over  the  lines  of  commercial 
companies  on  post  exchange  business  is  not  a  proper  charge  against 
the  appropriations  for  the  payment  of  telegrams  on  official  business. 
C.  19479,  Mar.  26,  1900. 

XXVIII.  The  act  of  Aprfi  28,  1904  (33  Stat.  496),  appropriated 
money  "for  the  purchase  of  suitable  building  sites  for  said  barracks 
and  quarters"^  for  artillery  at  seacoast  defenses;  held  that  the  term 
"barracks  and  quarters"  as  used  above  should  not  be  so  restricted  in 
its  application  as  to  relate  exclusively  to  the  company  barracks  and 
officers'  quarters,  and  to  withhold  authority  for  the  purchase  of  land 
upon  which  to  erect  the  other  buildings,  such  as  the  guardhouse, 
hospital,  headquarters'  structures,  post  exchange,  blacksmith  and 
carpenter  shops,  etc.,  which  are  necessary  to  the  administration  of  a 
military  post.  Such  appropriation  can  therefore  be  used  to  purchase 
a  site  for  a  pump  house  separated  from  the  main  post.^  0.  14719, 
July  14,  1904'  But  the  language  "barracks  and  quarters"  does  not 
cover  the  construction  of  a  chapel  at  a  military  post.  C.  21783, 
July  12,  1907. 

The  act  of  June  30,  1902  (32  Stat.  516),  under  the  head  of  "Bar- 
racks and  quarters,  Philippine  Islands,"  appropriated  "for  the  proper 
shelter  and  protection  of  officers  and  enlisted  men  of  the  Army  of  the 
United  States  lawfully  on  duty  in  the  Philippine  Islands,  including 
the  acquisition  of  title  to  building  sites  where  necessary,  to  be 
expended  in  the  discretion  of  the  President."  Held  that  the  words 
"proper  shelter  and  protection"  included  something  more  than  the 
mere  quarters  for  oflicers  and  barracks  for  enlisted  men.  It  would 
include  also  hospitals,  guardhouses  and  storehouses,  as  all  these 
buildings,  although  incidental  to  the  purpose  of  the  appropriation, 
are  as  necessary  to  the  proper  shelter  and  protection  of  the  troops  as 
are  the  structures  erected  for  the  mere  living  accommodations  of  the 
officers  and  enlisted  men.  C.  13065,  Aug.  4,  1902;  14955,  July  17, 
1903. 

1  See  "Appropriations"  XIII,  XX,  XXII,  and  XXX. 

2  But  see  V  Comp.  Dec,  706,  where  the  phrase  "barracks  and  quarters"  was  held 
not  to  include  separate  buildings  for  hospitals,  storehouses,  shops,  stables,  etc.,  nor 
eewers,  water  supply,  roads  or  walks, 


♦ 


APPROPRIATIONS   XXIX.  53 

The  act  of  May  11,  1908  (35  Stat.  121),  appropriating  for  "Barracks 
and  (juarters,  Philippine  Islands,"  provided  ror  the  proper  shelter 
and  protection  of  olhcers  and  enlisted  men  ''and  all  other  buildings 
necessary  for  post  administration  purposes";  held  that  the  quoted 
language  would  cover  the  erection  of  a  building  for  a  post  ofiice  at 
Fort  Wilham  McKinley.     C.  ^671 ,  Mar.  24, 1909. 

Sec.  1136  R.  S.  provides  that  ''permanent  barracks  or  quarters 
and  buildings  and  structures  of  a  permanent  nature  shall  not  be 
constructed  unless  detailed  estimates  shall  have  been  previously 
submitted  to  Congress,  and  approved  bv  a  special  appropriation  for 
the  same,  except  when  constructed  by  the  troops;  and  no  such  struc- 
tures, the  cost  of  which  shall  exceed  twenty  thousand  dollars,  shall  be 
erected  unless  by  special  authority  of  Congress."  In  practice  this 
section  has  been  construed  to  permit  of  the  construction  out  of  the 
amiual  appropriation  for  "barracks  and  quarters"  of  permanent 
buildings,  at  a  cost  not  to  exceed  $20,000,  although  no  detailed 
estimates  "  have  been  previously  submitted  to  Congress,  and  approved 
by  a  special  appropriation  for  the  same,"  and  also  to  permit  of  the  con- 
struction of  more  than  one  permanent  building  at  a  particular  post 
for  the  same  purpose,  even  though  their  aggregate  cost  should  exceed 
$20,000.  In  view  of  the  apparently  contradictory  provisions  of  the 
section,  advised  that  the  construction  which  it  has  received  in  practice 
be  adhered  to.^     C.  6985,  Sept.  8,  1899, 

Where  a  builiUng  had  oeen  erected  at  the  sole  cost  of  a 
post  exchange,  there  being  no  contribution  toward  its  construction, 
either  in  money  or  material  by  the  Quartermaster's  Department, 
held  that  the  appropriation  "Barracks  and  quarters"  could  legally 
be  expended  for  the  purchase  of  the  building.     G.  27238,  Sept.  9, 1910. 

The  act  of  June  22,  1874  (18  Stat.,  144),  provided  that  "hereafter 
no  contract  shall  be  made  for  the  rent  of  any  building  or  part  of  any 
building  in  Washington  not  now  in  use  by  the  Government  to  be  used 
for  the  purposes  of  the  Government  until  an  appropriation  therefor 
shall  have  been  made  in  terms  by  Congress."  Held  that  the  appro- 
priation for  the  support  of  the  Army  for  "barracks  and  quarters" 
can  be  used  for  providing  in  the  city  of  Washington  rooms  for  the 
use  of  the  dental  board  of  examiners,  as  the  above  legislation  was  not 
intended  to  limit  or  restrict  the  President  in  his  co»trol  of  the  military 
establishment.-     C.  10561,  May  29,  1901. 

XXIX.  The  appropriation  for  post  exchanges,  which  provides  for 
the  "construction,  equipment,  and  maintenance  of  suitable  buildings 
at  military  posts  and  stations  for  the  conduct  of  the  post  exchange, 
school,  library,  reading,  lunch,  amusement  room  and  gymnasium," 
and  which  is  expended  "in  the  discretion  and  under  the  direction  of 
the  Secretary  of  War,"  being  intended  to  serve  a  very  broad  purpose, 
should  be  liberally  construed,  and  is,  therefore,  held  to  cover  the 
construction  of  fences,  grand  stand,  seats,  etc.,  for  an  athletic  field 

^  The  U.  S.  Sup.  Ct.  will  accept  the  department's  uniform  construction  of  a  doubtful 
or  obscure  statute,  but  where  the  departmental  construction  has  not  been  uniform 
the  court  will  determine  for  itself  the  true  interpretation.    U.  S.  v.  Healey,  160 

2  From  time  to  time  accommodations  have  been  rented  in  the  city  of  Washington 
tor  the  purpose  of  carrying  on  the  recruiting  of  the  Army,  for  the  use  of  courts-mar4;ial 
and  boards  for  the  subsistence  depot  and  for  stables  for  the  quartermaster's  depot,  etc., 
notwithstanding  the  absence  of  any  appropriation  by  Congress  "in  terms"  for  these 
purposes. 


64  APPEOPEIATTONS   XXX. 

{G.  14970,  May  13,  1907);  the  laying  out  of  golf  links  at  a  post 
{C.  14970,  Dec.  8,  1908);  the  purchase  of  apparatus  for  outdoor  as 
well  as  indoor  athletics  (0. 14-970,  Jan. 30, 1909);  the  expense  of  con- 
structing a  fence  for  a  deer  park  ((7.  22337,  Nov.  7,  1907),  and  could 
legally  be  expended  for  the  purchase  from  a  post  exchange  of  a 
building  erected  by  it  for  post  exchange  purposes^  (0.  13365,  Sept.  29, 
1902;  15026,  July  29,  1903;  26607,  Apr.  29,  1910).  But  as  the 
appropriation  is  for  buildings,  held  that  it  would  not  cover  an  expendi- 
ture for  a  tent  in  which  to  quarter  temporarily  the  post  exchange 
during  Army  maneuvers  (C.  25057,  June  5,  1909),  nor  would  it  cover 
the  purchase  of  polo  balls  and  mallets  {G.  25575,  Sept.  17,  1909),  and, 
as  the  post  exchange  is  intended  to  be  a  local  institution  belonging  to 
a  post,  and  not  to  move  about  with  troops,  held  that  the  appropria- 
tion would  not  cover  an  expenditure  for  a  tent  that  was  intended  to 
be  a  part  of  the  movable  equipment  of  the  regiment.  G.  27950, 
Mar.  6,  1911.  And,  held,  also,  that  although  the  Government 
appropriates  for  the  construction  of  the  post  exchange  building, 
still  as  the  exchange  itself  is  an  instrumentality  of  the  Government 
composed  of  militar;;^  units,  for  w^hich  Congress  makes  no  appropria- 
tion whatever,  such  items  as  a  safe  and  a  cash  register  which  are  not 
part  of  the  e<][uipment  of  a  building,  but  are  rather  the  equipment 
of  a  commercial  enterprise  conducted  in  the  building,  should  be  fur- 
nished by  the  post  exchange  itself,  and  are  not  a  proper  charge 
against  the  appropriation.  G.  20299,  Aug.  29,  1906.  As  a  post 
exchange  is  an  agency  of  the  War  Department,  maintained  for  the 
benefit  of  enlisted  men,  and  as  the  profits  derived  from  its  operation 
are  exclusively  applied  to  the  company  funds,  the  appropriation  for 
the  support  of  post  exchanges  should  be  expended  for  the  exclusive 
benefit  of  enlisted  men.  U.  14970,  May  4j  1910.  Therefore,  this 
appropriation  should  not  be  expended  for  the  laying  out  of  golf  links 
unless  for  the  exclusive  use  of  enlisted  men.  G.  14970,  Dec.  8,  1908. 
So,  also,  it  could  not  be  expended  for  furniture  for  an  ofiicer's  mess. 
G.  15674,  Dec.  18, 1903. 

Par.  1467,  A.  R.  1904  (1461  of  1910),  provided  that '' General  hos- 
pitals will  be  under  the  exclusive  control  of  the  Surgeon  General  and 
will  be  governed  by  such  regulations  as  the  Secretary  of  War  may 

Erescribe.  The  senior  surgeon  will  command  the  same  and  will  not 
e  subject  to  the  orders  of  local  commanders  other  than  those  of 
territorial  divisions  and  departments  to  whom  specific  delegation  of 
authority  may  have  been  made."  Held  that  in  view  of  the  above 
paragraph  the  general  hospital  at  the  Presidio  of  San  Francisco 
constituted  a  separate  post  in  all  matters  relating  to  administrative 
discipline  and  military  control,  and  the  construction  of  a  post  exchange 
at  such  hospital  would  be  a  proper  charge  against  the  appropriation 
for  that  purpose  in  the  act  of  March  2,  1905  (33  Stat.  836).  0. 18827, 
Nov.  9,  1905. 

XXX.  The  act  of  May  25,  1900  (31  Stat.  183),  made  an  appropria- 
tion for  fortifications  and  other  works  of  defense  and  ''for  the  pro- 
tection, preservation,  and  repair  of  fortifications  for  which  there  may 
be  no  special  appropriation  available;"  held  that  the  above  appro- 
priation was  sufficient  to  cover  the  repair  of  a  sailboat  that  would  be 

^  But  see  ''Appropriations,"  XVII,  construing  similar  language  in  reference  to 
laundries. 


APPROPRIATIONS   XXXI.  55 

useful  for  transporting  materials  or  making  inspections  connected 
with  the  fortifications  ^  on  Porto  Kico.     C.  9676 ,  Jan.  23,  1901. 

Certain  land  at  Corregidor  Island,  P.  I.,  which  it  was  desired  to 
purchase,  was  not  the  land  on  which  the  fortifications  in  the  course  of 
construction  were  actually  being  erected,  but  was  essential  in  connec- 
tion with  the  construction,  use,  and  maintenance  of  the  batteries 
and  other  works  of  defense  and  had  no  connection  with  the  shelter 
of  oflicers  and  enlisted  men;  held  that  the  purchase  could  not  be 
made  from  the  appropriation  ''barracks  and  quarters,  Philippine 
Islands,"  which  provided  ''for  the  proper  shelter  and  protection  of 
ollicers  and  enlisted  men,"  but  should  be  made  from  the  appropriation 
for  fortifications.     C.  2279S,  Feb.  2^,  1908. 

The  act  of  March  2,  1905  (33  Stat.  845),  made  an  appropriation 
"for  the  purchase  and  installation  of  searchlights  for  the  defense  of 
our  most  important  harbors,"  the  searchlights  being  of  a  movable 
character,  mounted  on  trucks,  and  moved  about  by  horsepower;  held, 
that  storehouses  for  the  safe-keeping  and  shelter  of  such  searchlights 
should  not  be  considered  a  part  of  the  "installation,"  but  should  be 
charged  against  the  appropriations  for  the  Quartermaster's  Depart- 
ment.    C.  18474,  Sept.  5,  1905. 

XXXI.  Wliere  it  was  proposed  to  develop  the  coal  fields  on  the 
island  of  Batan,  P.  I.,  by  prospecting  and  testing  by  drilling  opera- 
tions, held  that  such  an  expense  was  chargeable  against  the  appro- 
priation for  "regular  supplies,"  as  that  appropriation  was  charged 
with  providing  fuel  for  the  Army.     C.  21659,  June  11,  1907. 

XXXII.  The  deficiency  aj)propriation  act  of  March  3,  1899  (30  Stat. 
1223),  contained  this  provision:  "  For  emergency  fund  to  meet  unfore- 
seen contingencies  constantly  arising,  to  be  expended  in  the  discre- 
tion of  the  President,  three  million  dollars;"  held,  that  this  fund  was 
available  for  expenditure  toward  the  relief  of  the  sufferers  from  the 
recent  cyclone  in  Porto  Rico.^  C.  6953,  Aug.  30,  1899.  Held,  also, 
that  where  soldiers  of  the  Philippine  Scouts  on  duty  at  the  St.  Louis 
Exposition  intrusted  to  their  company  commander,  a  white  man, 
certain  sums  of  money  for  safe-keeping,  which  sums  were  embezzled 
by  the  company  commander,  it  was  doubtful  whether  the  scouts 
could  be  legally  reimbursed  out  of  the  above  appropriation.  ^  G. 
17191,  Nov.  23,  1904.  Held,  also,  that  the  above  fund  was  not 
available  to  reimburse  a  quartermaster  who  had  paid  out  money  for 
transportation  of  sick  and  destitute  civilians  in  Alaska.  G.  11919^ 
Jan.  24,  1902. 

XXXIII.  A  sum  legally  payable  out  of  a  specific  appropriation  can 
not  be  transferred  to  the  credit  of  another  appropriation.  So  held 
where  a  soldier  of  the  Signal  Corps  made  a  deposit  with  a  paymaster, 
sections  1305  and  1308,  R.  S.,  providing  that  such  a  deposit  should 
pass  to  the  credit  of  and  be  payable  out  of  the  appropriation  for  "Pay 
of  the  Army,"  and  it  was  sought  to  transfer  this  deposit  to  the  credit 
of  the  appropriation  for  the  "Signal  Service."  P.  36,  265,  Nov.  4, 
1889.     But  tnis  rule  does  not  effect  the  proper  disbursement  of  the 

1  See  "Appropriations,"  XX,  XXIII,  and  XXXVII. 

"^  See  VI  Comp.  Dec,  177,  concurring  in  above  opinion;  see  also  "Appropriations," 

^  In  this  case  the  fund  was  not  used  to  pay  the  scouts.  Subsequently  an  unsuc- 
cessful attempt  was  made  to  obtain  relief  from  Congress. 


56  APPROPRIATIONS   XXXIV. 

sum  appropriated.  Thus,  where  in  a  Mihtary  Academy  appropria- 
tion act  a  certain  amount  was  appropriated  for  the  manufacture  or 
purchase  of  models  of  guns  and  carriages,  tield  that  the  Secretary  of 
War  was  authorized  to  transfer  this  amount  for  disbursement  to  the 
disbursing  officer  at  Watervhet  Arsenal,  where  the  models  were  to  be 
manufactured,  instead  of  leaving  the  disbursement  to  the  disburs- 
ing officer  at  West  Pomt.     P.  60,  498,  July  31,  1893. 

XXXIV.  Wliere  legitimate  accounts  were  presented  to  the  War 
Department  which  would  properly  be  payable  out  of  an  appropriation 
which  had  been  fully  expended,  lield  that  the  same  should  be  trans- 
mitted to  the  Treasury  Department  as  "claims  to  be  certified  to  be 
due  by  the  accounting  officers  under  appropriations  the  balances  of 
which  have  been  exhausted  or  carried  to  the  surplus  fund,  *  *  * 
and  certified  to  Congress."  They  could  then  be  appropriated  for  in  a 
deficiency  act,  and  thus  paid.     P.  62,  389,  Nov.  24,  1893. 

XXXV.  Section  4  of  the  act  of  June  16, 1890  (26  Stat.  158),  provides 
that  moneys  paid  upon  purchase  of  discharges  shall  be  ' '  deposited  in 
the  Treasury  to  the  credit  of  one  or  more  of  the  current  appropria- 
tions for  the  support  of  the  Army,  to  be  indicated  by  the  Secretary 
of  War."  Hem,  that  under  this  section  the  Secretary  could  change 
his  designation  of  appropriations  from  time  to  time,  as  to  purchase 
money  thereafter  accruing,  if,  in  his  judgment,  such  change  would 
be  for  the  interests  of  the  service.  P.  59,  60,  Apr.  11,  1893;  0. 
11264,  Sept.  27,  1901. 

XXXVI  A.  Where  it  was  desired  to  install  certain  woodworking 
machinery  at  the  United  States  Military  Prison  at  Fort  Leavenworth, 
and  it  appeared  that  there  was  a  special  fund  appropriated  for  grad- 
ually reconstructing  the  prison,  and  it  also  appeared  that  the  cost  of 
supporting  the  prisoners  and  maintaining  the  prison  as  a  reformatory 
agency  constituted  a  charge  against  the  appropriations  for  the  sup- 
port of  the  Army,  Jield  that  if  the  proposed  machinery  was  to  be 
used  in  part  in  construction  work  and  in  part  with  a  view  to  instruct 
the  prisoners  to  work  at  a  trade  by  which  they  could  support  them- 
selves after  they  were  discharged,  the  cost  thereof  might  be  appor- 
tioned between  the  two  appropriations  as  the  Secretary  of  War  might 
deem  just  and  equitable.     C.  24994,  May  19, 1909. 

XXXVI  B.  Machinery  for  laundering  the  clothes  of  prisoners  at 
the  United  States  Military  Prison  does  not  relate  to  the  prison  itself, 
but  to  the  prisoners,  and  the  cost  of  such  machinery  would  be  a  proper 
charge  against  appropriations  for  the  support  of  the  Army,  just  as  the 
cost  of  the  food,  clothing,  and  medical  attendance  of  such  prisoners  is 
a  charge  against  such  appropriation.  Either  the  appropriation  for 
''Camp  and  garrison  equipage,"  which  is  for  ''altermg  and  fitting 
clothing  and  washing  and  cleaning  when  necessary,"  or  for  ''inci- 
dental expenses,"  would  be  available  for  such  expenditure.  C.  19379, 
Mar.  28,  1906. 

XXXVI  C.  Where  a  special  form  was  printed  for  the  use  of  the 
Inspector  General  in  the  conduct  of  an  inspection  of  the  quarter-, 
master's  and  subsistence  departments  in  the  Philippine  Islands,  wliich^ 
was  ordered  by  the  Secretary  of  War,  held  that  tlie  cost  of  the  same^ 
could  be  charged  against  the  appropriation  for  printing  in  either  the 
Quartermaster's  or  the  Subsistence  Department.  C.  15022,  July  28, 
1903, 


I         ; 

I 


APPROPRIATIONS   XXXVI   D.  57 

XXXVI  D.  Where  a  req^iiisition  was  made  for  certain  specially  ruled 
sheets  necessary  to  carry  nito  effect  the  appropriations  for  the  arma- 
ment of  fortifications  and  for  the  arming  and  equipping  of  the  Organ- 
ized Militia,  held  that  the  purchase  of  such  sheets  would  constitute  a 
charge  against  the  appropriation  for  ''Stationery  for  the  War  Depart- 
ment," or  against  the  appropriation  for  "Armament  of  fortifications," 
or  against  the  appropriation  for  "Arming  the  militia,"  and  that  if 
any  one  of  the  aoove-mentioned  appropriations  had  been  unduly 
depleted,  the  cost  could  be  charged  against  either  of  the  others. 
C.  21225,  Mar,  U,  1907. 

XXXVII.  Where  it  was  desired  to  install  a  plant  for  instruction 
purposes  at  Fort  Monroe,  where  the  Artillery  School  is  located,  held 
that  if  the  plant  was  to  constitute  a  part  of  the  armament  of  the 
fortifications  at  Fort  Monroe  the  purchase  should  be  made  from  the 
fortification  appropriation,  but  it  needed  solely  or  chiefly  for  pur- 
poses of  instruction,  and  not  as  a  necessary  part  of  the  defensive 
equipment  of  the  fort,  the  purchase  should  be  from  the  appropriation 
for  the  support  of  the  school.     C.  13823,  Dec.  20,  1902. 

XXXVIII.  Sections  19  and  20  of  the  river  and  harbor  act  of  March  3, 
1899  (30  Stat.  1154),  provide  that  ''whenever  the  navigation  or 
ai^y  *  *  *  canals  *  *  *  shall  be  obstructed  or  endangered 
by  any  sunken  vessel,  boat,  water  craft,  raft,  or  other  similar  obstruc- 
tion" the  same  may  be  removed  by  the  Secretary  of  War.  In  view 
of  the  general  purpose  of  the  act,  which  was  to  keep  the  navigable 
waters  clear  or  obstructions,  the  act  should  receive  an  extensive 
rather  than  a  restrictive  construction,  and,  therefore,  the  general 
words  ''other  similar  obstructions"  should  not  be  closely  restricted 
to  obstructions  of  the  nature  of  those  specifically  mentioned,  but  if  in 
any  way  similar  they  should  be  regarded  as  coming  within  the  pur- 
view of  the  act.  Therefore,  where  a  draw  span  of  a  railroad  bridge 
across  the  Portage  Lake  Canal  had  been  thrown  from  its  piers  by  a 
collision  with  a  steamer  and  was  lying  in  the  canal,  completely  block- 
ing navigation,  held  that  the  span  could  be  removed  under  the  above 
act;  and  held,  further,  that  the  above  act  should  be  considered  as 
making  an  appropriation  for  the  specific  purpose  of  removing  wrecks, 
and  therefore  that  act,  rather  than  an  indefuiite  appropriation  which 
was  made  for  operating  and  caring  for  canals  and  other  works  of  navi- 
gation under  wnich  the  Portage  Lake  Canals  were  operated,  was  the 
proper  appropriation  against  which  to  charge  the  expense.  C.  1 7866, 
Apr.  20,  1905. 

XXXIX.  The  appropriation  that  is  chargeable  with  the  purchase  price 
of  Government  property  imported  into  the  Philippine  Islands  from  the 
United  States  is  also  chargeable  with  the  payment  of  customs  duties 
and  internal-revenue  taxes  legally  assessed  against  the  United  States 
under  the  appropriation  act  of  August  5,  1905  (36  Stat.  11  and  130).^ 
C.27U7,  Mar.  14, 1911. 

XI.  It  was  desired  to  supply  the  commissary  storehouse,  the  rent 
of  wliich  was  paid  by  the  Quartermaster's  Department,  with  gas  for 
the  purpose  of  testing  and  sampling  subsistence  stores.  Held,  that  the 
cost  of  fuel,  and  for  heating  the  storehouse,  if  the  storehouse  was 
heated  by  artificial  means  such  as  steam  or  electricity,  and  for  the 
I  lighting  of  the  storehouse  whether  by  candles,  oil,  gas,  or  electricity, 

*  See  XVII  Comp.  Dec,  701,  to  the  same  effect;  see  also  XVI  Comp.  Dec,  146. 


58  APPKOPKIATIONS   XLI. 

constitute  a  charge  against  the  appropriation  for  the  Quartermaster's 
Department;  but  if  gas  is  needed  not  for  heating  or  Hghting,  but  for 
testing  and  sampHng  stores,  the  expenditure  for  the  gas  would  not  be 
one  connected  with  the  heating  or  hghting  of  the  storehouse,  but 
would  be  connected  with  the  ^'purchase,  care,''  etc.,  of  subsistence 
suppHes,  and  should,  therefore,  be  a  charge  against  the  appropriation 
for  the  Subsistence  Department.     C.  21074,  Feb.  P,  1907. 

XLI.  As  the  expense  connected  with  the  installation  and  operation 
of  electric  fans  for  a  mihtary  hospital  is  not  an  expense  incident  to 
lighting  a  mihtary  post,  it  should  not  be  charged  against  the  appro- 
priation for  the  Quartermaster's  Department,  but  agamst  the  appro- 
priation for  the  ^'Medical  and  Hospital  Department."  C.  18847 ^ 
Nov.  21.  1905. 

XLII.  In  order  to  prepare  a  site  for  the  erection  of  a  hospital  it  was 
necessary  to  remove  certain  buildings  under  the  control  of  the  Ord- 
nance Department.  Held,  that  the  expense  of  the  removal  of  the 
buildings  should  be  charged  against  the  appropriation  for  the  con- 
struction of  the  hospital  and  that  the  fact  that  the  Ordnance  Depart- 
ment had  control  of  the  buildings  was  not  a  material  consideration 
in  the  case.     C.  2398,  June  27,  1896. 

XLIII.  Where  a  hospital  was  required  to  pay  for  telephone  mes- 
sages, held,  that  each  message  should  be  charged  against  that  fund 
out  of  which  the  article  to  which  the  message  referred  was  purchased. 
For  instance,  messages  having  to  do  exclusively  with  the  sick  and  the 
detachment  of  the  Hospital  Corps,  and  which  related  to  expenditures 
properly  made  out  of  hospital  funds,  as  for  food,  milk,  and  articles  for 
the  use  or  benefit  of  the  sick,  etc.,  should  be  paid  out  of  hospital 
funds;  but  messages  connected  with  the  administration  of  the  hos- 
pital, such  as  those  relating  to  the  purchase  of  medicines,  hospital 
property,  etc.,  should  be  paid  for  by  the  Quartermaster's  Depart- 
ment.    C.  27273,  Sept  21,  1910. 

XLIV.  The  act  of  March  2,  1901  (31  Stat.  895),  making  appro- 
priations for  the  support  of  the  Army  provided  for  ''the  purchase  of 
medical  and  hospital  supplies,  including  disinfectants  for  military 
posts,  *  *  *  for  the  proper  care  and  treatment  of  epidemic  ana 
contagious  diseases  in  the  Army,  or  at  military  posts  or  stations, 
including  measures  to  prevent  the  spread  thereof,  and  all  other  nec- 
essary miscellaneous  expenses  of  the  Medical  Department."  Held, 
that  as  the  Army  Medical  School  is  an  agency  of  the  War  Department 
for  the  instruction  of  newly  appointed  medical  officers  in  matters 
pertaining  to  their  specialty,  just  as  officers  of  the  line  are  drilled  and 
mstructed  in  technical  schools  in  duties  pertaining  to  their  respective 
arms  of  service,  the  above  appropriation  could  be  expended  in  fitting 
up  two  rooms  in  the  Army  Medical  School  for  necessary  instruction. 
a  11258,  Sept.  16,  1901. 

XIV.  The  act  of  May  11,  1908  (35  Stat.  122),  making  appropria- 
tions for  the  support  of  the  Medical  Department,  provided  ''for 
medical  care  and  treatment  not  otherwise  provided  for,  including  care 
and  subsistence  in  private  hospitals  of  *  *  *  civilian  employees 
of  the  Army  *  *  *  when  entitled  thereto  by  law,  regulation,  or 
contract."  Where  a  civilan  seaman  on  an  Army  transport  was  taken 
sick  while  the  vessel  was  in  port  undergoing  repairs  and  the  ship's 
hospital  was  not  in  condition  to  be  used,  and  the  seaman  was  placed 
in  a  hospital  ashore  by  order  of  the  ship's  surgeon,  held,  that  the  trans- 


L  APPROPRIATIONS   XL VI.  59 

rt  regulations  charged  the  Government  with  the  duty  of  furnishing 
the  medical  attendance  to  members  of  the  ship's  company  and  this 
duty  continued  to  exist  when  the  vessel  was  in  port  undergoing 
repairs,  and  that  the  hospital  charges  in  the  above  case  were  charge- 
able agamst  the  above  appropriation.^  C.  2^389,  Jan.  22  and  Feb. 
15,  1909.  So,  also,  where  four  seamen  on  an  Army  transport  were 
affected  with  contagious  diseases  and  were  removed  to  a  hospital 
ashore,  lield,  that  the  cost  of  transporting  them  to  the  hospital  was 
chargeable  against  the  above  appropriation.  C.  24389,  July  27,  1909, 
XL VI.  Wattmeters  for  measuring  electricity  are  included  in  the 
languat]je  "electric  fixtures"  used  in  the  appropriation  act  in  connec- 
tion with  certain  construction  work  at  a  military  post.  C.  25456, 
Aug.  24,  1909. 

XLVII.  The  appropriation  in  the  Army  appropriation  act  of  Feb- 
ruary 27,  1893  (27  Stat.  482),  ''for  the  regular  supphes  of  the  Quar- 
termaster's Department,  consisting  of  *  *  *  fuel  and  lights  for 
enlisted  men,  guards,  hospitals,  storehouses  and  offices,  and  for  sale 
to  officers" — held,  so  far  as  concerns  lights  and  officers,  to  include 
any  such  lights  or  material  for  lighting  as  may  be  saleable  to  officers, 
and  therefore  to  be  applicable  for  the  production  and  furnishing  of 
ga^,  to  be  paid  for  by  officers  at  a  cost  covering  expenses.  This 
appropriation  for  ''fuel  and  lights"  is  first  found  in  the  Army  appro- 
priation act  of  1881,  and,  originating  thus  recently,  may  be  deemed 
to  contemplate  gas  as  a  material  for  lighting  equally  with  the  more 
primitive  methods.     P.  64,  470,  May  1,  1894. 

XLVIII.  Where  it  was  desired  to  initiate  certain  tests  with  a  view 
to  determining  whether  there  was  an  economical  use  of  coal  at  mili- 
tary posts,  JieM,  that  the  expense  of  obtaining  the  services  of  experts 
in  connection  wdth  such  tests  would  be  a  proper  charge  against  the 
appropriations  out  of  which  the  cost  of  fuel  and  heating  apparatus  is 
defrayed.     C.  23576,  Sept.  13,  1909. 

XLIX.  Congress  appropriated  for  a  monument  to  the  prison  ship 
martyrs,  the  appropriation  to  become  available  when  certain  sums 
had  been  appropriated  by  the  State  of  New  York  and  the  city  of  New 
York  and  when  a  certain  sum  had  been  subscribed  by  the  Prison  Ship 
Martyrs  Monument  Association.  After  completing  the  monument 
a  balance  was  left  over.  The  act  of  appropriation  was  completely 
lacking  in  words  indicating  directly  or  indirectly  what  disposition 
should  be  made  of  this  balance.  Held,  that  the  unexpended  oalance 
3ould  not  be  turned  over  for  the  care  and  maintenance  of  the  monu- 
iient.2  Held,  further,  that  the  unexpended  balance  should  be 
livided  pro  rata  amon^  those  by  whom  the  funds  were  provided, 
vhether  by  appropriation  or  subscription,  and  that  the  portion 
belonging  to  the  United  States  be  deposited  to  the  credit  of  "Miscel- 
aneous  receipts."^     C.  13999,  Mar.  11,  1910. 

L.  A  provision  in  an  appropriation  for  the  Quartermaster's  Depart- 
nent  "for  procuring  water  and  introducing  the  same  to  buildings  at 
;iuch  places  as  from  their  situation  require  it  to  be  brought  from  a 
tlistance"  is  sufficient  to  cover  the  purchase  of  distilled  water  at  a 
livision  headquarters  for  the  use  of  clerks  where  the  ordinary  water 
)rocured  by  the  Quartermaster's  Department  is  not  fit  for  drinking 
>urposes.     C.  17317,  Jan.  4,  1905. 

*  I  Comp.  Dec,  62;  II  id.,  347;  V  id.,  913;  VI  id.,  955;  VII  id.,  407;  VIII  id.,  296. 
^  See  III  Comp.  Dec,  520. 


60  APPEOPKIATIOKS   LI. 

^  II.  No  part  of  an  appropriation  which  has  been  made  for  the  erec- 
tion of  a  pubUc  building  can  legally  be  used  in  the  purchase  of  furni- 
ture therefor,  except  such  in  the  nature  of  fixtures  as  may  be  consid- 
ered a  part  of  the  building  itself  and  necessary  to  complete  it  for  the 
purposes  stated  in  the  approj)riation  act.^     C.  8944,  Mar.  18,  1899. 

III.  In  the  Army  appropriation  act  of  February  27,  1893  (27 
Stat.  483),  under  the  head  ''Army;  transportation,"  money  was 
expressly  appropriated  "  for  constructing  roads  and  wharves."  Held, 
that  the  expense  of  repairing  a  crib  dock  and  approach  thereto 
belonging  to  the  Government  on  the  Fort  Wayne  Military  Reserva- 
tion, and  used  for  military  purposes,  would  be  a  proper  charge  against 
the  said  appropriation.     0.  70,  July  19,  1894. 

LIII.  Where  the  Government  required  for  military  purposes  a 
street  in  which  were  situated  water  mains  and  hydrants,  held,  that  the 
money  appropi  iated  for  the  purchase  of  the  land  could  be  expended 
for  purchase  of  the  mains  and  hydrants.     C.  15110,  Jan.  30,  1909. 

LIV.  The  act  of  March  2,  1907  (34  Stat.  1158),  made  an  appropria- 
tion ''for  the  library  of  the  Surgeon  General's  office,  including  the 
purchase  of  necessary  books  of  reference  and  periodicals.  Held,  that 
the  above  appropriation  is  broad  enough  to  cover  the  hire  of  the 
laborers  necessary  in  handling  and  carrying  books  in  connection  with 
the  reclassification  of  the  library.     C.  22214,  Oct.  15,  1907. 

LV.  The  sundry  civil  act  of  July  1, 1898  (30  Stat.  628),  appropriated 
a  specified  amount  for  lifting  20  arc  lights  in  the  Executive  Mansion 
Grounds  and  MonumentTPark  365  nights  at  not  exceeding  25  cents  per 
light  per  night,  "which  shall  cover  the  entire  cost  to  the  United 
States  of  lighting  and  maintaining  in  good  order  each  electric  light  in 
said  grounds  and  park."  Held,  that  the  cost  of  necessary  excavations 
and  extension  of  underground  conduits  to  carry  the  current  for  the 
new  lights  would  be  a  proper  charge  against  this  appropriation.  G. 
4641,  July  SO,  1898. 

IVI.  The  act  of  March  23,  1910  (36  Stat.  245),  in  making  an  appro- 
priation for  the  expenses  of  the  Signal  Service  of  the  Army,  appro- 
priated for  the  ''maintenance  and  repair  of  military  telegraph  lines 
and  cables,  including  salaries  of  civilian  employees,  supplies,  and 
general  repairs."  Held,  that  the  appropriation  for  the  above  purpose 
was  sufficient  to  include  the  travel  expenses  of  a  civilian  employee 
of  the  Signal  Corps  who  was  on  temporary  duty  in  Alaska  as  wireless 
inspector  in  connection  with  the  installation  of  new  equipment  and 
overhauling  apparatus  already  installed  at  wireless  stations  in  Alaska. 
C.  19479,  Bee.  22,  1910. 

LVII.  The  act  of  March  9,  1906  (34  Stat.  56),  for  the  marking,  etc., 
of  the  graves  of  the  Confederate  dead  who  died  in  northern  prisons, 
etc.,  covers  "proper  fencing  for  the  preservation  of  said  burial 
grounds."  Had,  that  as  the  Secretary  of  War  is  not  restricted  as  to 
the  means  for  carrying  out  the  provision  for  fencing,  he  may  authorize 
such  means  as  may  in  his  judgment  be  necessary  to  carry  out  the 
object  of  the  appropriation,  and  be  may  therefore  employ  an  architect 
to  design  the  fencing  and  attend  to  its  construction  and  may  pay  him 
the  usual  compensation  for  such  services.     C.  19834,  July  23,  1907. 

*  See  III  Comp.  Dec,  134,  holding  that  an  appropriation  "to  alter  certain  rooms" 
in  the  courthouse  of  the  District  of  Columbia  did  not  cover  the  purchase  of  furniture 
or  other  articles  that  did  not  become  fixtures. 


APPROPRIATIONS   LVIII.  61 

Held,  also,  that  under  tlie  same  statute  lie  may  expend  the  appro- 
priation for  such  grading  as  is  necessary  to  the  proper  construction 
of  a  fence.     C.  25539,  Oct.  18,  1909. 

LVIII.  Where  certain  trees  on  private  land  were  cut  down  for  use 
in  the  construction  of  a  pontoon  bridge  in  the  course  of  tactical 
instruction  under  direction  of  the  authorities  of  a  service  school,  Jield, 
that  the  trees  should  be  considered  as  articles  purchased  for  the  use 
of  the  military  establishment  and  the  owner  be  paid  the  value  of  the 
same  out  of  the  funds  set  apart  for  the  use  of  tlie  particular  service 
school  in  connection  with  which  the  pontoon  construction  was  being 
carried  on.     C.  2^968,  May  17,  1909. 

LIX.  The  act  of  Februarj^  14,  1902  (32  Stat.  12),  provided  "for 
the  establishment  in  i\\Q  vicinity  of  Manila,  Philippine  Islands,  of  a 
military  post,  including  the  construction  of  barracks,  quarters  for 
officers,  hospital,  storehouses,  and  other  buildings,  as  well  as  water 
supply,  lighting,  sewerage,  and  drainage,  necessary  for  the  accom- 
modation of  a  garrison  of  two  full  regiments  of  Infantry,  two  squad- 
rons of  Cavalry,  and  two  batteries  of  Artillery,  to  be  available  until 
expended,  five  hundred  thousand  dollai*s."  held,  that  as  the  above 
statute  did  not  specifically  authorize  the  construction  of  "roads,"  it 
could  not  be  usea  for  such  a  purpose.     C.  12154,  Apr.  23,  1904. 

IX.  There  is  no  authority  to  expend  public  money  in  furnishing 
music  to  so-called  "volunteer  bands,"  as  such  bands  are  not  author- 
ized by  law  as  a  part  of  the  military  establishment.  C.  23870,  Dec. 
11,1908. 

IXI.  While  the  Government  of  Porto  Rico  was  being  carried  on 
under  military  authority  a  native  of  the  island  killed  a  United  States 
soldier,  the  crime  being  of  a  character  neither  political  nor  in  violation 
of  the  laws  of  war,  and  was  tried  by  military  conamission  and  sentenced 
to  a  term  of  imprisonment.     The  confinement  was  served  in  a  state 

Penitentiary.  Held,  that  the  crime  was  one  over  which  the  courts  of 
orto  Rico  had  jurisdiction,and  the  fact  that  justice  was  administered 
by  a  military  commission  did  not  make  the  crime  any  less  a  violation 
of  the  laws  of  Porto  Rico,  and  that  therefore  the  bills  connected 
with  the  keeping  of  this  prisoner  in  a  State  penitentiary  were  not 
payable  from  any  appropriation  for  the  Army.^     C.  15759,  Jan.  15, 

LXII.  The  act  of  June  25,  1910  (36  Stat.  723),  made  an  appro- 
priation "for  repair  and  preservation  of  monuments,  tablets  *  *  * 
made  and  constructed  by  the  United  States  upon  public  land  within 
the  limits  of  Antietam  battle  field."  A  tablet  on  the  battle  field 
,bore  an  inscription  which  was  inaccurate  and  incomplete,  and  the 
jOnly  practicable  method  of  making  a  correction  in  the  inscription  was 
jto  cause  a  new  tablet  bearing  an  amended  inscription  to  be  cast,  the 
;old  tablet  to  be  broken  up.  Authority  for  such  action  was  requested. 
\IIeld,  that  under  the  above  appropriation  the  new  tablet  might  be 
jmade  as  requested.     C.  28328,  May  12,  1911. 

LXIII.  By  act  of  July  8,  1898  (30  Stat.  730),  $200,000  was  appro- 
priated "to  enable  the  Secretary  of  War,  in  his  discretion,  to  cause  to 
jbe  transi)orted  to  their  homes  the  remains  of  officers  and  soldiers  who 
;die  at  military  camps  or  who  are  killed  in  action  or  who  die  in  the 

^  In  this  case  the  Attorney  General  held  that  after  military  authority  in  the  island 
.liad  ceased  the  power  to  remit  the  unexecuted  sentence  was  in  the  governor  of  Porto 
jRico. 


62  APPEOPRIATIONS  LXIV. 

field  at  places  outside  of  the  limits  of  the  United  States."  Held, 
that  the  appropriation  could  be  used  for  providing  metallic  caskets 
and  other  expenses  incident  to  disinterring  the  remains  and  prepar- 
ing them  for  shipment  as  well  as  for  transportation  proper,  as  such 
expenses  are  necessary  and  proper  to  their  transportation.  But 
further  Jield,  that  the  act  did  not  apply  where  the  deceased  officer  or 
soldier  died  within  the  limits  of  the  United  States.  C.  4-808,  Aug. 
18,1898. 

LXIV.  An  estimate  for  providing  a  water  supply  for  the  Presidio 
of  San  Francisco  was  made  in  the  following  language:  '^For  the 
purchase  of  land  and  acquirement  of  water  rights  on  Lobos  Creek, 
California,  to  protect  the  water  supply  of  the  Presidio  of  San  Fran- 
cisco, and  to  provide  an  independent  water  supply  for  military  pur- 
poses in  San  Francisco  Harbor,  California."  At  a  hearing  before 
the  committee  of  Congress  the  Quartermaster  General  stated  that 
the  estimate  was  to  cover  the  purchase  of  all  of  one  side  of  the  creek, 
the  Government  already  o^vning  the  other  side.  A  sum  of  money 
was  appropriated  for  the  purpose  stated  in  the  estimate,  the  language 
of  the  appropriation  being  identical  with  that  of  the  estimate.  Held, 
that  as  neither  the  estimate  nor  the  appropriation  specified  the  amount 
of  land  and  water  rights  which  were  to  be  acquired,  the  remarks  of 
the  Quartermaster  General  to  the  congressional  committee  should 
not  be  regarded  as  limiting  the  legal  discretion  in  the  Secretary  of 
War  to  purchase  such  land  and  water  rights  as  were  necessary,  and 
that  if  a  purchase  of  a  part  only  of  one  side  of  the  creek  was  sufficient 
the  entire  appropriation  could  be  used  for  this  puipose.  C.  584, 
June  28,  1911. 

LXV.  Held,  that  the  act  of  Congress  approved  March  3,  1909  (35 
Stat.  747),  authorizing  a  disbursing  officer  of  the  Quartermaster's 
Department,  having  to  his  credit  insufficient  balance  under  the  proper 
appropriation  to  make  payment  from  the  total  available  balance  to 
his  official  credit,  provided  sufficient  funds  under  the  proper  appro- 
priations have  been  apportioned  by  the  Quartermaster  General  for 
the  expenditure,  was  not  limited  to  appropriations  pertaining  to  the 
same  fiscal  year;  that  there  was  nothing  in  the  language  of  the 
appropriation  which  would  justify  such  a  limitation.  C.  17327, 
Aug.  6,  1910. 

LXVI.  A  civilian  employee  was  sentenced  by  a  court-martial  to  a 
forfeiture  of  pay.  Held  that  the  forfeiture  should  not  be  actually 
paid,  but  should  remain  in  the  appropriation  from  which  the  civilian 
was  paid,  the  forfeiture  being  in  effect  a  reduction  of  his  authorized 
pay  to  that  extent.     G.  9326,  Nov.  23,  1900. 

LXVII.  Where  the  United  States  owned  to  the  middle  of  a  street 
adjoining  a  national  cemetery,  held  that  an  appropriation  ''for  main- 
taining and  improving  national  cemeteries"  would  cover  the  cost  of 
construction  of  a  sidewalk  along  the  street  if  the  sidewalk  is  consid- 
ered as  required  for  the  convenience  of  access  to  the  cemetery.  C. 
26106,  Jan.  22, 1910. 

CROSS  REFERENCES. 

Act,  rule  of  construction See  Laws  I  B  1  b . 

Execution  of,  for  River  and  Harbor  work.  ..See  Navigable  waters  X  A  to  B. 

Expenditures  in  excess  of See  Contracts  XIII  to  XIV. 

Under  1661  R.  S.,  available  until  expended.  .See  Militia  X  A  1. 


AKCHITECT — AKMY  :    SYNOPSIS.  63 

ARCHITECT. 

Payment  of See  Appropriations  LVII. 

AEMORY. 

See  Militia  VIII  to  IX. 

ARMS. 

I.  ARMS  DEFINED. 
II.  STATE  QUESTION. 

I.  The  Constitution  of  the  United  States  provides  that  a  well-reg- 
ulated mihtia  ''being  necessary  to  the  security  of  a  free  state,  the 
right  of  the  people  to  bear  arms  shall  not  be  infringed. "  ^  Held  that 
the  word  ''arms "  refers  to  the  arms  of  the  militia  or  soldier  and  does 
not  authorize  the  carrying  of  weapons  not  adapted  to  use  for  military 
purposes.     C.  1169,  May  27,  1910. 

II.  Held  that  the  question  of  carrying  weapons  is  one  that  is 
regulated  by  the  States,  and  is  a  matter  over  which  the  Government 
of  the  United  States  has  neither  jurisdiction  nor  control.  C.  1169, 
Feb.  27,  1908. 

CROSS  REFERENCES. 

Borrowing  from  allies See  War  I  C  6  d  (1). 

Furnished  by  allies See  Claims  VII  B  6. 

Furnishing  to  colkges See  Military  instruction  II  B  1  c;  2. 

Sale  of  and  seizure  of See  Public  property  IX  B  1. 

State  can  not  forbid  soldier  to  carry See  Government  agencies  V. 

ARMY. 
I.  PERSONNEL. 

A.  Commander  in  Chief. 

1.  Appointing  power.     (See  Office.) 

2.  Convening  and  reviewing  authority.     (See  Discipline.) 

3.  Pardoning  power.     (See  Pardon.) 

4.  Can  not  issue  regulations  in  conflict  with  statutes.     (See  Laws.) 

5.  May  drop  officers  as  deserters.     (See  Deserter.) 

6.  Turning  prisoner  over  to  civil  authorities Page  69 

7.  Can  not  exchange  old  property  for  new. 

8.  Can  suspend  a  cadet  without  pay.     (See  Army  I  D  2.) 

B.  Secretary  OF  War. 

1.  Acts  of. 

a.  Are  acts  of  President. 

(1)  As  to  orders. 

(2)  As  to  transfers  of  property Page  70 

b.  Can  not  be  reopened  by  successor. 

2.  Authority  of. 

a.  Over  personnel  of  the  Army. 

(1)  Assignment  of  line  officers  to  staff  duty Page  11 

(2)  Will  not  collect  debts  against  officers. 

(a)  But  can  apply  a  disciplinary  remedy Page  72 

(3)  May  detail  a  squadron  sergeant  major  on  extra  duty. 

(4)  Can  not  restore  a  general  prisoner  to  duty. 

^  Art.  II,  Amendments. 


64  '  akmy:  synopsis. 

I.  PERSONNEL— Continued. 

B.  Secretary  op  War — Continued. 

2.  Authority  of — Continued. 

b.  Over  property. 

(1)  As  to  bonds  of  disbursing  officers, 

(a)  Can  not  relieve  commissary  of  bond  while  on  general 
staff. 

(2)  As  to  funds. 

(a)  Can  order  inspection  of  Signal  Corps  funds. 
(6)  Can  not  divert  forfeitures  from  treasury  to  any  par- 
ticular fund Page  73 

(3)  As  to  lands. 

(a)  Can  not  accept  conditional  conveyances. 

(4)  Can  fix  selling  price  of  repaired  property. 

(5)  Can  not  loan  Government  property. 

c.  Over  records, 

(1)  May  refuse  to  furnish  to  Court  of  Claims, 

(2)  Rule  as  to  furnishing  to  other  departments, 

d.  To  grant  franchises, 

(1)  Legislation  required  in  case  of  navigable  waters Page  74 

e.  Delegation  of  authority. 

(1)  To  Chief  of  Engineers  in  river  and  harbor  work. 

f.  Can  not  restrict  a  general's  right  to  aids-de-camp. 

g.  Can  order  officers'  travel  without  reporting  to  Congress. 
li.  Authority  to  have  documents  printed. 

(1)  Under  act  of  July  7,  1884, 

(2)  Under  act  of  January  12,  1895 Page  75 

3.  Acting  Secretary  in  absence  of  Secretary, 

4.  Hearings  before. 

a.  Qualifications  of  lawyers  who  appear. 

5.  Requests  on  other  departments. 

a.  Department  of  Justice  to  defend  officer  or  enlisted  man  in  civil 

courts Page  76 

b.  To    prosecute    soldier    who    presented    fraudulent    final    state- 

ments    Page  77 

6.  Request  on  Congress  for  relief  of  officers. 

a.  When  subjected  to  judgment  due  to  execution  of  duty, 

b.  Reimbursement  of  stoppage,  loss  of  public  money  not  involving 

neglect, 

7.  Can  order  issues, 

a.  Of  clothing  to  general  prisoners, 

8.  May  order  hospital  attendant  to  attend  a  discharged  soldier  to  sol- 

dier's home Page  78 

9.  Can  not  authorize  dredging  for  gold  in  navigable  waters. 

10.  Responsible  for  construction  of  fortifications  and  seacoast  defenses. 

11.  Rule  of  comity  as  to  relations  with  civil  authorities. 

C.  Officers.     (See  Line,  Staff,  under  Army;  also  Office,  Rank,  Command, 

Pay,  Retirement,  Discipline,  etc.) 

1,  May  not  hire  soldier  as  servant. 

2,  Can  not  be  deprived  of  pay  by  civil  process. 

3.  Can  not  accept  remuneration  from  a  foreign  power Page  79 

4.  Can  not  accept  present  from  soldiers. 


army:  synopsis.  65 

I.  PERSONNEL— Continued. 

D.  Cadets. 

1.  Appointment. 

a.  Applicant  must  be  actual  resident  of  district. 

(1)  Rule  if  State  has  been  redistricted. 

(2)  Residence  may  be  changed  after  appointment. 

(a)  Minor. 

[1]  If  emancipated  may  acquire  residence.  Page  80 
[2]  Not  emancipated. 

[a]  Residence  same  as  father's. 

[A]  Father  on  duty  in  district,  but 

not  resident  therein. 

[B]  Alien  attending  school  in  United 

States. 
(6)  Alternate. 

[1]  Can  not  succeeed  to  principalship  except  by 
appointment, 
(c)  Appointment  from  Alaska Page  81 

b.  Age. 

(1)  Limitation  applies  at  beginning  of  academic  year. 

c.  Unmarried. 

(1)  May  be  a  divorced  man. 

d.  Reappointment. 

(1)  In  case  of  resignation. 

(2)  In  case  of  discharge  because  of  deficiency. 

(3)  In  case  of  dismissal  by  sentence  of  court-martial, 

2.  Cadets  found  deficient, 

a.  May  be  given  furlough  without  pay Page  82 

b.  Reappointment  of. 

3.  Punishment, 

a.  Trial  by  court-martial. 

b.  Summary. 

(1)  Punishment  by  order  is  unauthorized, 

(2)  For  hazing. 

(a)  Dismissal  authorized. 

4.  Change  of  name  by  cadet Page  83 

5.  Not  entitled  to  mileage, 

6.  Graduation  leave. 

E,  Enlisted  Men, 

1.  Noncommissioned  officers. 

a.  Warrants  are  private  property, 

b.  Reduction  of, 

2.  Post  noncommissioned  staff  officers. 

a.  Service  as  commissioned  officer  does  not  count  toward  appoint- 

ment as  commissary  sergeant Page  84 

b.  Selection  of  post  quartermaster  sergeants  not  restricted  to  ser- 

geants. 

c.  Maybe  placed  on  extra  duty  if  authority  is  obtained  in  advance. 

3.  Military  status  of  enlisted  men. 

a.  Not  ineligible  to  hold  civil  office. 
(1)  May  act  as  postmaster, 
31106°— 12 5 


66  abmy:  synopsis. 

I.  PERSONNEL— Continued. 

E.  Enlisted  Men — Continued. 

3.  Military  status  of  enlisted  men — Continued. 

b.  Positions  the  holding  of  which  is  incompatible  with  military 

status Page  85 

(1)  Office  in  civil  service  in  Philippine  Islands. 

c.  Details  not  inconsistent  with  military  status. 

(1)  To  alter  grade  emplacements  for  Coast  Artillery  guns. 

4.  Chief  musician,  status  of. 

5.  May  be  in  contempt  of  civil  courts. 

F.  General  Prisoners.     (See  Discipline.) 

G.  Regular  Army. 

1.  Standing  Army  in  peace  and  war. 

2.  Line. 

a.  Mobile  Army. 

(1)  Porto  Rican  Regiment Page  86 

(a)  Natives  may  be  officers. 
(6)  Natives  may  be  chaplains. 

(2)  Philippine  Scouts. 

(a)  Belong  to  the  Regular  Army. 

b.  Coast  Artillery  Corps. 

(1)  Office  of  Chief  not  bureau  of  War  Department. 

(2)  Unassigned  list  of  officers. 

(3)  Targets  towed  over  "lobster  pots  " Page  87 

3.  Staff. 

a.  Administrative  staff. 

(1)  General  Staff. 

(a)  Can  not  command  without  presidential  assignment. 

(2)  The  Adjutant  General's  Department. 

(3)  Inspector  General's *Department Page  88 

(a)  Reports  of,  are  confidential  documents. 

(4)  Judge  Advocate  General's  Department. 

(a)  Judge  Advocate  General. 

[1]  Duties  of. 

[2]  Reports  of,  are  confidential Page  89 

[3]  No  administrative  jurisdiction  over  claims  of 
court  reporters. 

[4]  Does  not  express  opinions  on  questions  which 
affect  only  one  or  more  of  the  States.  (Also 
see  ''Militia  ") Page  90 

b.  Supply  staff. 

(1)  Detailed  officers  must  furnish  bonds. 

(2)  Quartermaster's  Department. 

(a)  Transportation. 

[1]  Street  car  tickets. 

[2]  Through  foreign  territory. 

[a]  Troops. 

[b]  Supplies. 
[3]  By  sea. 

[a]  Of  man  discharged  without  honor. 

[b]  Pensionable  status  of  ship's  officers. 

[c]  Transport      quartermaster      summoned 

before    United    States    commissioner 
Page  91 


army:  synopsis.,  67 

I.  PERSONNEL— Continued. 

G.  Regular  Army — Continued. 
3.  Staff— Continued. 

b.  Supply  staff — Continued. 

(2)  Quartermaster's  Department — Continued. 

(a)  Transportation — Continued. 
[3]  By  sea — Continued.    • 

[d]  Disposition  of  property  found. 
[c]  Of  military  supplies  in  American  vessels. 
[/]  Of  members  of  family  and  servants. 
[g]  Principle  of  exterritoriality. 
[h]  Mess  bill. 

[i]  In  American  or  foreign  bottoms.  Page  92 
[4]  Transportation  over  automobile  line. 
(6)  Purchase  of  horse  from  officer  requires  approval  of  Sec- 
retary of  War. 
(c)  Can  sell  forage  to  retired  officers Page  93 

(3)  Subsistence  Department. 

(a)  Post  commissary. 

[1]  Can  hold  each  member  of  an  officers'  mess  liable 

for  his  share  of  supplies  furnished. 
[2]  Can  not  issue  more  than  is  authorized. 
[3]  Issue  to  civilian  employees  in  Alaska. 
[4]  Issue  of  rations  in  kind  in  Alaska. 

(4)  Ordnance  Department. 

(a)  Authority  of  chief  under  sec.  1167  R.  S. 

(6)  Chief  of  Ordnance  can  not  make  rules  for  inspection  of 

ordnance  property, 
(c)   Examination  of  officers  for  detail  in  Ordnance  Depart- 
ment. 
fc{d)  Ordnance  sergeant Page  94 
c.  Engineer  Department. 
(1)  Duties.     (See  also  Public  property,  rivers  and  harbors,  navi- 
gable streams,  etc.) 
d.  Medical  Department. 

(1)  Practice  of  surgeons. 

(2)  Board  of  review  on  examination  for  promotion. 

(a)  Jurisdiction. 

(b)  Action  by  War  Department Page  95 

(3)  Medical  Reserve  Corps, 
(a)  "Emergency"  in  act  of  April  23,  1908,  defined. 
(6)  Officers  of  Medical  Reserve  Corps  are  commissioned. 

(c)  Status Page  96 

[1]  As  to  privileges. 

[2]  Before  assignment  to  duty, 

[3]  How  discontinued. 

[4]  WTien  mounted,  entitled  to  transportation  for 

private  mounts. 

(4)  Contract  surgeon. 

(a)  Use  of,  not  forbidden Page  97 

(6)  Oath  of  office  not  administered  to. 

(c)  Status  and  duties. 

(d)  Contract  dental  surgeon Page  98 


68  army:  synopsis. 

I.  PERSONNEL— Continued. 

G.  Regular  Army — Continued. 
3.  Staff— Continued. 

d.  Medical  Department — Continued. 

(5)  Hospital  Corps. 

(a)  May  be  increased  by  Secretary  of  War. 

(b)  Sergeants,  first  class,  detailed  as  mess  sergeants. 

(6)  Nurses. 

(a)  Nurse  Corps  (female). 

[1]  An  integral  part  of  the  Army. 
[2]  Leave  of  absence  not  cumulative. 

(7)  General  hospitals. 

(a)  Hot  Springs,  Ark. 

[1]  Civil  employees  eligible  for  treatment  as  pa- 
tients. 

[2]  Discharged  enlisted  men  of  Navy  not  eligible 
for  treatment  as  patients. 

(8)  Post  hospitals. 

(a)  Officers'  servants  are  entitled  to  treatment  as  patients. 
(6)  Procedure  in  case  of  escheat  of  estate  of  deceased 
patient  to  United  States. 
[1]  Case  of  soldier. 

[2]  Case  of  discharged  soldier.  (See  Public  prop- 
erty.) 

(c)  Special  diet. 

[1]  Ginger  ale,  etc Page  99 

(d)  Funds  obtained  from  sale  of  supplies. 
H.  Volunteer  Army.    (See  Volunteer  Army.) 

1.  Office  in.    (See  Office.) 
I.  Militia  Called  Forth.    (See  Militia.) 
n.  EMPLOYMENT  OF  ARMY  TO  AID  CIVIL  AUTHORITY. 

A.  To  Protect  State  prom  Invasion  or  Domestic  Violence. 

1.  When  legislature  can  not  be  convened. 

2.  Rule  of  comity  between  Army  and  State  officers. 

B.  May  be  Used  in  Alaska. 

C.  May  be  Used  in  Indian  Country Page  100 

1.  Use  of  officers  to  instruct  Indians. 

D.  Duties  of  Commanding  Officer  during  Disorder  refore  Receipt  of 

Orders Page  101 

E.  Force  so  Employed  can  not  be  Placed  under  Control  op  Governor. 

F.  Can  not  be  Used  for  Posse  Comitatus. 

1.  May  be  used  to  serve  process. 

G.  In  Philippines. 

1.  Scout  companies. 

a.  Under  command  of  chief  or  assistant  chief  of  Constabulary,  Page  102 

2.  Regular  troops  and  scouts. 

a.  Under  ordinary  circumstances  are  not  responsible  for  good  order 

of  the  community Page  103 

(1)  May  become  so  when  called  out. 

H.  Can  not  be  Used  to  Police  Forest  Reserves Page  104 

I.  Riots,  etc. 

1.  Proclamation  will  precede  use  of  Federal  troops. 

2.  Troops  will  not  be  placed  under  State  control. 

3.  The  President  is  judge. 

a.  Of  size  of  force  to  use. 

b.  Of  extent  of  territory  to  occupy. 


AEMY  I  A  6.  69 

II.  EMPLOYMENT  OF  ARMY  TO  AID  CIVIL  AUTHORITY— Continued. 
I.  Riots,  etc. — Continued. 

4.  Republican  form  of  State  government  can  not  be  overthrown. 

5.  Trespassers  can  be  ejected  from  Indian  country Page  105 

6.  Used  to  guard  post  road. 

K.  Use  op  Army  to  Enforce  Neutrality. 

1.  By  preventing  hostile  expeditions,  etc.,  leaving  country. 

a.  Military  expedition  defined. 

b.  How  much  force  may  be  used. 

c.  Department  commander  should  turn  information  of  hostile  expe- 

ditions over  to  civil  authorities Page  106 

d.  Armed  forces  can  not  pursue  a  hostile  expedition  into  foreign 

territory. 

e.  Seizing  contraband  supplies. 

(1)  Should  be  turned  over  to  Federal  civil  authorities. 

(2)  Not  to  be  turned  over  to  State  authorities. 

i.  By  preventing  violation  of  our  peace  due  to  firing  from  across  the 
border  line  into  our  territory  by  participants  in  a  foreign 
civil  war. 

(1)  Our  commanding  general  should  promptly  inform  both  for- 

eign commanding  generals  and  request  them  to  desist. 

(2)  May  defend  against  such  fire Page  107 

g.  Commanding  general. 

(1)  Should  maintain  friendly  relations  with  the  State  in  which 

he  is  serving. 

(2)  Can  not  support  State  auftiorities  in  execution  of  State  laws. 
h.  Interned  prisoners. 

(1)  Finger  prints  of,  may  not  be  taken. 
m.  EMPLOYMENT  OF  ARMY  TO  MAKE  WAR.    (See  War.) 
IV.  MATERIAL.    (See  Public  Property,  Supplies,  Pay,  etc.) 
V.  USE  OF  ARMY  TO  ENFORCE  TREATY  RIGHTS  IN  CHINA. 

I  A  6.  Whether  the  Executive  shall  turn  over  a  miliatry  prisoner 
undergoing  sentence  of  court  martial  to  a  governor  of  a  State,  upon 
his  formal  request,  in  order  that  he  may  be  tried  and  punished  by  a 
court  of  the  State,  or  in  order  to  enable  such  governor  to  surrender 
liim  to  the  governor  of  another  State  in  compliance  with  a  requisition 
made  by  the  latter  for  the  party  as  a  criminal  under  the  laws  of  the 
latter  State — is  a  question  to  be  decided  by  considerations  of  policy 
and  expediency  suggested  by  the  facts  of  the  particular  case.  The 
U.  S.  Government  is  under  no  obligation  to  surrender  its  prisoner, 
and  whether  it  will,  in  comity,  do  so,  should  in  general  depend  mainly 
upon  the  nature  of  the  crime  charged.  Unless  the  party  be  charged 
with  a  peculiarly  heinous  offense,  of  which,  for  the  purpjoses  of  public 
example  and  punishment,  a  prompt  investigation  by  a  civil  tribunal  is 
called  for,  the  Executive  will  in  general  properly  decline  to  turn  over 
the  party  to  the  civil  authorities  till  his  military  punishment  has  been 
fully  executed.     R.  37,  47,  Oct,  1875;  0.  5955  and  6055,  Mar.,  1899. 

I  A  7.  Held  that  the  commander  in  chief  has  no  authority  to 
exchange  old  property  for  new  property.     C.  2127,  Mar.  14,  1896. 

IB  1  a  (1).  It  is  a  fundamental  general  principle  of  our  public  law 
that  all  acts  done  by  and  directions  emanating  from  the  heads  of  the 
executive  departments  in  the  course  of  their  administrative  duties, 
are  in  law  the  acts  and  directions  of  the  President,  in  whom  is  reposed 
by  the  Constitution  the  entire  executive  power  of  the  Government, 


70  AKMY  I  B  1   a    (2). 

and  whom  the  heads  of  departments  (except  where  specially  invested 
by  Congress  with  distinctive  authority  of  their  own  ^)  simply  act  for 
and  represent. 2  Thus  all  orders  made  and  issued  by  the  Secretary  of 
War  in  connection  with  the  government  and  regulation  of  the  military 
establishment — such  as  orders  convening  general  courts  martial,  or 
approving  and  directing  the  execution  of  the  sentences  or  otherwise 
acting  upon  the  proceedings  of  such  courts,  or  mitigating  or  wholly  or 
partially  remitting  punishments  imposed  thereby ;  or  orders  summarily 
dismissing  officers,  or  dropping  for  desertion,  retiring  or  accepting  the 
resignation  of,  officers;  or  orders  establishing  military  reservations,  or 
promulgating  army  regulations,  &c. — are  to  be  regarded  as  the 
orders  and  acts  of  the  President,  whom  the  Secretary  of  War  repre- 
sents in  the  administration  of  his  department;  the  same  being  pre- 
sumed to  be  made  and  issued  with  the  knowledge  and  by  the  direction 
of  the  President,  whether  or  not  he  be  referred  to  therein  as  having 
directed  or  commanded  the  same;  and  being  equally  as  valid  and 
operative  as  if  signed  by  the  hand  of  the  President  liimself  .^  R.  5,  319, 
Nov.,  1863;  9,  U,  May,  1864;  ^S,  654,  Aug.,  1867;  37,  650,  June,  1876; 
38,  107,  243,  June  and  Aug.,  1876;  39,  296,  Nov.,  1877;  4I,  25,  611, 
Sept.,  1877,  and  July,  1879;  42,  209,  Mar,,  1879;  4^,  106,  Dec,  1879; 
P.  41,  360,  June  30,  1890. 

I  B  1  a  (2).  Where,  by  an  act  of  Congress,  the  President  was 
** authorized  to  dispose  of"  certain  reserved  lands  of  the  United 
States,  but  was  not  in  terms  required  to  execute  the  transfer,  held 
that  the  execution  of  the  deeds  was  a  ministerial  act  and  that  the 
same  might  legally  be  executed  by  the  Secretary  of  War.  P.  ^5, 
420,  Aug.,  189U 

I  B  1  b.  It  is  an  established  rule  of  our  administrative  law  that  a 
decision  upon  a  claim  once  arrived  at,  upon  whatever  grounds,  by  the 
head  of  a  department  of  the  Government,  is  a  finality  so  far  that,  in 
the  absence  of  new  evidence,  error  of  calculation,  or  fraud,  it  can  not 
(without  the  authority  of  Congress)  be  reopened  by  a  successor.'' 
E.  51,  136,  Nov.,  1886;  P.  53,  443,  May,  1892;  G.  687,  Dec.,  1894. 
Held  that  ^^new  evidence,"  to  be  available  to  change  a  determination 
upon  a  claim  arrived  at  by  a  previous  Secretary  of  War,  must  be 

^  That  a  Secretary  may  have  special  powers  devolved  upon  him,  independently  of 
the  President,  by  an  act  of  Congress,  see  United  States  v.  Kendall,  5  Cranch,  Ct.  Cls., 
163  (Fed.  Cas.,  15517). 

2  Lockington  v.  Smith,  Peters  Ct.  Cls.,  472;  United  States  v.  Benner,  1  Baldwin,  238; 
Wilcox  V.  Jackson,  13  Peters,  498,  513;  United  States  v.  Eliason,  16  id.,  302;  The  Con- 
fiscation cases,  20  Wallace,  109;  U.  S.  v.  Farden,  99  U.  S.,  10,  19;  Wolsey  v.  Chapman, 
101  id.,  655,  769;  Runkle  v.  U.  S.,  122  id.,  543,  557;  United  States  v.  Webster,  Daveis, 
38,  59  (Fed.  Cas.,  16658);  United  States  v.  Freeman,  1  Wood.  &  Minot,  45;  Lock- 
ington'g  case,  Brightly,  288;  United  States  v.  Cutter,  2  Curtis,  617;  Hickey  v.  Huse, 
56  Maine,  495;  McCall's  case,  5  Philad.,  289;  In  matter  of  Spangler,  11  Mich.,  322; 
1  Op.  Atty. Gen.,  380;  6 id.,  326, 587, 682;  7 id.,  453, 725;  9 id.,  463, 465;  lOid.,  527;  11  id., 
398;  13  id.,  5;  14  id.,  453. 

3  See  Wilcox  v.  Jackson,  13  Peters,  498;  U.  S.  -y.  Eliason,  16  id.,  302;  U.  S.  v.  Farden, 
99  U.  S.,  10,  19;  Wolsey  v.  Chapman,  101  id.,  755,  769;  Hickey  v.  Huse,  56  Maine, 
495;  2  Op.  Atty.  Gen.,  67;  13  id.,  5;  14  id.,  453;  15  id.,  290,  463;  G.  0.  35,  W.  D.,  1850. 

*  U.  S.  V.  Bk.  of  Metropolis,  15  Peters,  378;  Rollins  and  Presbrey  v.  U.  S.,  23  Ct. 
Cls.,  106,  and  cases  cited;  WaddelVs  Case,  25  id.,  323;  9  Op.  Atty.  Gen.,  32;  12  id.,  355; 
14  id. ,275;  15  id. ,192;  16  id. ,452;  I  Comp.  Dec,  193;  2  id.,  264,  401;  4  id.,  303;  6 id., 
236,  245.  In  Rollins  and  Presbrey  v.  U.  S.,  supra,  it  was  held,  quoting  from  syllabus, 
that  "any  public  officer  in  an  executive  department  may  correct  his  own  errois  and 
open,  reconsider,  or  reverse  any  case  decided  by  himself."  In  delivering  the  opinion 
of  the  court,  Chief  Justice  Richardson  said:  "It  has  long  been  held  in  the  executive 
departments  that  when  a  claim  or  controversy  between  the  United  States  and  indi- 


t 


AKMY  I  B  2  a  (l).  71 

evidence  as  to  its  merits.  A  mere  reargument,  upon  a  subsequent 
application,  with  citation  of  authorities  or  precedents,  is  not  such 
^'new  evidence,"  or  evidence  at  all,  and  can  not  avail  to  reveree  the 
original  decision.  P.  58,  110,  Feb.,  1893.  Where  an  order,  fixing 
the  status  of  an  officer  on  the  retired  list,  was  issued  by  the  Secretary 
of  War  in  the  execution  of  a  statute  which  it  was  his  duty  to  execute, 
held  that  such  order  was  res  judicata,  and  could  not  bo  reopened  or  set 
aside  by  a  succeeding  Secretary,  in  the  absence  of  fraud  or  manifest 
error  on  the  face  of  the  proceedings.  P.  4^,  358,  June,  1890;  4^, 
438,  Sept.  1890;  a  4954,  Sept.  13,  1898;  11741,  Jan.  11, 1902;  13244, 
Sept.  2,  1902;  I4O43,  Feb.  24,  1903;  16202,  Apr.  20,  1904;  I64I6, 
May  27,  1904,  Jan.  9,  1905,  and  Dec.  6,  1906;  16913,  Sept.  20,  1904; 
20446,  Sept.  27,  1906;  29327,  Jan.  13,  1912. 

I  B  2  a  (1).  Under  the  requirements  of  section  26  of  the  act  of 
February  2,  1901  (31  Stat.  755),  that  ''officers  so  detailed  shall  serve 
for  periods  of  four  years,  at  the  expiration  of  wliich  they  shall  return 
to  duty  with  the  line,"  held,  that  the  foregoing  requirement  is  manda- 
tory, and  makes  it  necessary  that  such  details  shall  terminate  at  the 
expiration  of  the  statutory  period;  Tield,  also,  however,  that  it  is 
witliin  the  authority  of  the  Secretary  of  War  to  assign  an  officer  so 
relieved  to  any  duty  that  he  may  regard  as  conducive  to  the  public 
interest;  that  if  he  assigns  him  to  duty  in  connection  with  the  con- 
struction of  buildings,  his  bond,  if  he  has  given  one  as  detailed  captain 
in  the  Quartermaster's  Department,  would  not  be  appHcable  to  the 
duty  performed  under  his  new  assignment;  and  that  it  is  in  the 
discretion  of  the  Secretary  of  War  to  require  a  new  bond  to  cover  the 
duties  mth  which  he  is  charged  in  such  new  assignment.  C.  15844, 
Apr.  16,  1910. 

I  A  2  a  (2).  It  is  not  within  the  province  of  the  War  Department 
to  afford  to  officers  of  the  Army  protection  against  suits  instituted  by 
civifians  claiming  to  be  their  creditors.  P.  64,  63,  Feb.,  1894-  Nor 
can  the  Government  properly  act  as  collector  of  private  indebtedness 
due  from  officers  or  enlisted  men  of  the  Army.  In  such- cases  resort 
should  be  had  to  the  civil  courts.  Where,  however,  the  question 
becomes  one  of  conduct  unbecoming  an  officer  and  a  gentleman  on 

viduals  therein  pending  has  once  been  fully  considered,  and  final  action  and  determi- 
nation had  thereon  by  any  executive  officer  having  jurisdiction  of  the  same,  it  can  not 
be  reopened,  set  aside,  and  a  different  result  ordered  by  any  successor  of  such  officer, 
except  for  fraud,  manifest  error  on  the  face  of  the  proceedings,  such  as  a  mathematical 
miscalculation  or  newly  discovered  evidence,  presented  within  a  reasonable  time  and 
under  such  circumstances  as  would  be  suflficient  cause  for  granting  a  new  trial  in  a 
court  of  law.  This  ruling  and  practice  of  the  departments  has  been  approved  else- 
where and  has  been  sustained  by  the  courts.  (9  Op.  Atty.  Gen.,  34;  12  id.,  172,  358; 
14  id.,  387,  456;  14  id.,  275;  15  Pet.,  401;  Lavalette's  Case,  1  Ct.  Cls.,147;  Jackson's 
Case,  19  id.,  504;  State  of  Illinois  Case,  20  id.,  342;  McKee's  Case,  12  id.,  560;  Day's 
Case,  21  id.,  264,  and  the  opinion  of  the  Judiciary  Committee  of  the  Senate,  reported 
by  Senator  and  Judge  David  Davis,  quoted  in  Jackson's  case  above  referred  to.) 
But  it  has  never  been  doubted  that  any  public  officer  in  the  departments  may  correct 
his  own  errors,  and  open,  reconsider,  and  reverse  in  whole  or  in  part  any  case  decided 
by  himself."  As  to  reopening  final  settlements,  which  have  been  followed  by  receipt 
and  acceptance  by  the  claimant  of  the  amount  awarded,  5  Op.  Atty.  Gen.,  122;  10, 
id.,  259;  12  id.,  386;  IV  Comp.  Dec,  328;  VI  id.,  858. 

The  act  of  July  31,  1894  (28  Stat.  208),  provides  that  "any  person  accepting  pay- 
ment under  a  settlement  by  an  auditor  shall  be  thereby  precluded  from  obtaining  a 
revision  of  such  settlement  as  to  any  items  upon  which  payment  is  accepted."  In 
view  of  this  statute  the  accounting  officers  have  no  jurisdiction  to  reopen  a  settlement, 
upon  newly  discovered  evidence,  as  to  any  item  upon  which  payment  of  the  amount 
allowed  by  an  auditor  has  been  accepted.    VII  Comp.  Dec,  537. 


72  ARMY  I  B  2  a  (2)  (a). 

the  part  of  an  officer  or  of  conduct  to  the  prejudice  of  good  order  and 
military  disciphne  on  the  part  of  either  an  officer  or  enUsted  man, 
action  may  be  taken  by  the  War  Department  on  these  questions  only.* 
C.  5482,  Dec,  1898;  5931,  Mar.,  1899. 

I  B  2  a  (2)  {a).  The  Secretary  of  War  is  without  authority  to 
api)ropriate  or  stop  an  officer's  pay  for  the  use  of  his  family,  or  to 
satisfy  a  judgment  or  decree  of  a  civil  court  growing  out  of  an  obliga- 
tion of  a  private  character.  But  he  may  of  course  cause  such  officer 
to  be  brought  to  trial  by  court  martial  for  dishonorable  conduct  in 
the  treatment  of  his  family  or  with  respect  to  the  obligation  referred 
to.  G.  3500,  Sept.,  1897;  3819,  Jan.,  1898;  5^82,  Dec,  1898;  6882, 
Aug.,  1899.  Nor  in  the  case  of  a  retired  officer,  alleged  to  be  irre- 
sponsible, has  the  Secretary  of  War  authority  to  designate  a  person 
to  receive  and  distribute  such  officer's  pay.  In  such  case,  the  appoint- 
ment of  a  guardian  by  the  proper  court  should  be  secured  by  the 
parties  interested.  C.  4636,  July,  1898;  13097,  Aug.  12,  1902; 
13439,  Oct  14,  1902;  15770,  Jan.  16,  1904;  17915,  May  4,  1905; 
21852,  Oct.  15,  1907. 

I B  2  a  (3).  Held  that  the  Secretary  of  War  may  detail  a  squadron 
sergeant  major  on  extra  duty  and  that  such  detail  can  not  be  made 
without  his  authority.     C.  I4664,  May  18,  1903. 

I  B  2  a  (4).  Section  6  of  the  act  of  March  3,  1873,  provided,  with 
regard  to  general  prisoners  confined  in  the  United  States  military 
pnson,  that  ''the  Secretary  of  War  is  authorized  and  directed  to  remit, 
in  part,  the  sentence  of  such  convicts  and  to  give  them  an  honorable 
restoration  to  duty  in  case  the  same  is  merited."  Held  that  it  has  not 
been  possible  for  the  Secretary  to  exercise  this  power  since  the  enact- 
ment of  the  act  of  August  1,  1894,  as  that  act  prohibits  the  reenlist- 
ment  of  men  whose  preceding  term  of  enlistment  has  not  been  honest 
and  faithful.     C.  22577,  Nov.  17,  1911. 

I  B  2  b  (1)  {a).  A  permanent  officer  of  the  Subsistence  Department 
detailed  in  the  General  Staff  can  not  be  relieved  from  his  bond  by  the 
Secretary  of  War.  But  no  obligation  accrues  under  the  bond  while 
so  serving  as  an  officer  of  the  General  Staff;  it  is,  therefore,  suggested 
that  the  bonding  company  be  advised,  with  a  view  to  remit  the  annual 
premiums  during  his  incumbency  of  office  in  the  General  Staff. 
C.  4396,  Feb.  19,  1900. 

I  B  2  b  (2)  (a).  Held  that  the  Secretary  of  War  has  authority  to 
cause  funds  in  possession  of  officers  of  the  Signal  Corps  who  are  charged 
with  their  disbursement  in  connection  with  the  Alaskan  telegraph 
and  cable  lines,  including  funds  in  course  of  telegraphic  transmission, 

^  The  Secretary  of  War  does  not  undertake  the  collection  of  debts  due  private  per- 
sons from  officers  and  soldiers,  nor  to  require  a  preference  for  any  particular  creditor 
in  payment  in  such  cases.  His  aim  is  to  protect  the  character  and  standing  of  the 
Army,  and  to  eliminate  from  it  those  guilty  of  dishonorable  conduct.  Where  charges 
of  such  conduct  are  made  they  will  be  promptly  investigated,  and  where  statements 
of  nonpayment  of  debts  are  made  against  officers,  they  will  be  investigated  with  this 
end  in  view.    Ruling,  Secretary  of  War,  Nov.  18, 1897. 

Complaints  of  nonpayment  of  debts  due  from  officers  on  the  active  list  and  under 
the  control  of  department  commanders  are  in  practice  referred  for  the  **  necessary 
action  "  to  the  proper  department  headquarters  and  the  complainants  notified  of  the 
above  ruling  of  the  Secretary  of  War.  The  complaints  need  not  be  accompanied  by 
or  be  in  the  form  of  formal  charges — a  statement  of  the  acts  and  conduct  complained 
of  is  sufficient  as  a  basis  for  investigation.  Formal  charges  can  be  prepared  when  as 
a  result  of  the  investigation  such  action  is  required. 


ARMY  I  B  2  b  (2)   (&).  73 

to  be  inspected  by  officers  of  the  Inspector  General's  Department. 
a  6363,  Jan.  21,  1909. 

I  B  2  b  (2)  (6).  In  executing  a  sentence  of  forfeiture  of  pay,  the 
pay  forfeited  in  the  absence  of  specific  statutory  authority  for  the 
purpose  can  not  be  diverted  from  the  General  Treasury  to  any  par- 
ticular fund.  Thus  wliere  a  soldier  convicted  of  the  embezzlement  of 
certain  subsistence  stores  was  sentenced  to  a  forfeiture  of  pay,  held 
that  the  Secretary  of  War  would  not  be  authorized  to  cause  the  pay 
forfeited  to  be  added  to  the  appropriation  for  the  Subsistence  Depart- 
ment so  as  to  make  good  to  the  same  the  amount  lost  by  the  embezzle- 
ment.    R.  43,  85,  Nov.,  1879. 

I  B  2  b  (3)  (a).  The  act  of  Congress  of  August  19,  1890,  vested  in 
the  Secretary  of  War  a  simple  autliority  to  purchase  land  for  the  pur- 

Soses  of  the  Chickamauga  and  Chattanooga  National  Park,  without 
irection  or  indication  as  to  the  terms  of  such^urchase.  Deeds  were 
offered  by  its  owners  containing  two  conditions — (1)  a  condition  sub- 
sequent to  the  effect  that  unless  certain  iniprovements  should  be  made 
the  grant  should  become  nuQ  and  void;  (2)  a  proviso  that  in  case  the 
tFnited  States  should  at  any  future  time  condemn  other  land  of  the 
grantor,  he  should  then  be  paid  for  the  same  an  amount  to  be  meas- 
ured by  the  value,  determined  by  appraisement,  of  the  lands  conveyed 
by  the  present  deed — an  arrangement  which  would  be  equivalent  to 
giving  him  a  claim  on  the  United  States  for  an  unliquidated  amount. 
j  Held  that  such  conditional  conveyances  could  not  legally  be  accepted 
by  the  Secretary  of  War,  no  authority  bein^  given  him  by  the  statute 
to  bind  the  Government  by  conditions  or  stipulations  in  regard  to  the 
title  or  purchase.     P.  56,  263,  Nov.,  1892. 

I  B  2  b  (4) .  The  Secretary  of  War  has  power  to  sell  public  property 
that  has  been  used.  Held,  therefore,  that  he  can  fix  tne  sale  price  of 
property  which  has  been  in  use  and  repaired.    C.  26372,  Mar.  17, 1910. 

I  B  2  b  ( 5) .  Held  that  there  is  no  legal  authority  for  the  loan,  by 
the  Secretary  of  War,  of  Government  property  to  other  executive 
departments  or  to  parties  not  in  the  Government  service.  C.  19282, 
Mar.  2,  1906. 

I  B  2  0  (1).  Under  section  1076,  R.  S.,  the  Secretary  of  War  (or 
other  head  of  a  department)  may  refuse  or  omit  to  comply  with  a  caU 
of  the  Court  of  Claims  for  information  or  papers  when  he  considers 
that  it  would  be  prejudicial  to  the  public  interests  to  furnish  them: 
The  statute  makes  him  the  sole  judge  on  the  subject.  So  advised  here 
that  a  certain  affidavit,  thus  called  for,  be,  on  account  of  the  pecuHar 
nature  of  its  contents  ( as  well  as  its  apparent  immateriality)  withheld. 
P.  26,  497,  Sept.,  1888. 

I  B  2  0  (2).  The  calls  upon  the  War  Department  by  subordinate 
officers  and  employees  of  other  executive  departments  for  extended 
copies  of  military  records  have  become  so  numerous  and  compliance 
with  them  has  become  so  burdensome  and  expensive  as  to  call  for 
serious  consideration  in  the  interests  of  economy  and  the  dispatch  of 
public  business.  As  a  rule,  these  records  are  desired  for  the  purpose 
of  ascertaining  some  fact  relating  to  military  status  or  services  which 
it  is  primarily  the  dut}^  of  the  War  Department  to  determine.  Held 
that  where  such  a  fact  is  to  be  determined  judicially  it  is  the  practice 
of  the  department  to  produce  either  the  original  records  or  duly 
authenticated  copies  in  court.     Held,  however,  that  when  such  a  fact 


74  AKMY  I  B  2  d  (l). 

is  to  be  ascertained  for  executive  purposes  it  can  only  lead  to  con- 
fusion, conflict,  and  waste  of  public  time  to  have  numerous  different 
members  of  the  executive  branch  examining  the  same  records  for  the 
purpose  of  determining  the  same  questions,  and  that  it  is  wholly  un- 
necessary. Held,  therefore,  that  when  such  a  fact  is  to  be  ascertained 
for  the  purpose  of  executive  action,  and  no  statute  requires  a  different 
course,  the  War  Department  wiU  answer  proper  inquiry  as  to  the  fact, 
ascertaining  it  from  the  examination  of  its  own  records,  but  advised 
that  the  department  will  not  hereafter  (Nov.  2,  1901)  furnish  copies 
of  records  or  statements  to  enable  officers  or  employees  of  other 
executive  departments  to  review  decisions  made  by  the  War  Depart- 
ment upon  purely  military^  questions  or  to  make  independent  decisions 
with  regard  to  such  questions.^     G.  10306,  July  8,  1910. 

I  B  2  d  (1).  The  Secretary  of  War  is  without  authority,  unaided 
by  legislation,  to  grant  franchises  in  navigable  waters  or  elsewhere. 
G.  9323,  Nov.  23,  1900. 

I  B  2  e  (1).  Held  that  in  view  of  the  general  language  of  the  law  ^ 
the  Secretary  ot  War  could  legally  delegate  to  the  Chief  of  Engineers 
his  authority  to  direct  a  temporary  transfer  of  property  purchased 
from  one  appropriation  for  a  particular  project  and  not  for  the  time 
required  therefor  for  use  in  another  improvement  upon  such  equitable 
adjustment  of  charges  and  credits  as  may  be  agreed  upon  by  the 
district  officers  under  direction  of  the  Chief  of  Engineers.  G.  16202, 
Apr.  20,  1904;  16899,  Sept.  16,  1904. 

I  B  2  f .  A  question  having  arisen  as  to  the  power  of  the  Secretary 
of  War  to  limit  the  number  of  aids  allowed  to  general  officers  in  the 
operation  of  sections  1097  and  1098  R.  S.,  held  that  such  restrictive 
action  would  be  unlawful,  as  the  power  of  general  officers  to  appoint 
the  number  of  aids  to  which  they  are  entitled  being  granted  by 
statute  can  not  be  abridged  by  an  executive  regulation.  G.  14819, 
June  17,  1903. 

I  B  2  g.  Section  4  of  the  act  of  May  22,  1908  (35  Stats.  244), 
requires  the  head  of  each  executive  department  and  other  Govern- 
ment establishment  at  Washington  to  submit  at  the  beginning  of 
each  regular  session  a  statement  to  Congress  showing  what  officers  or 
employees  have  traveled  on  official  business  from  Washington  to 
points  outside  of  the  District  of  Columbia.  Held  that  the  Secretary 
of  War  is  not  required,  under  this  law,  to  make  a  report  of  travel  by 
officers  of  the  Army  in  pursuance  of  competent  military  orders,  wliich 
travel  is  covered  by  Army  appropriations.     G.  23876,  Dec.  3,  1908. 

I  B  2  h  (1).  Advised  that,  under  the  prohibitory  provisions  of  the 
act  of  July  7,  1884  (23  Stat.  227),  a  work  entitled  the  '^  Manual  of 
Cahsthenics  "  can  not  legally  be  authorized  or  caused,  by  the  Secretary 
of  War,  to  be  printed  by  the  Public  Printer,  unless  the  same  be,  in  the 
words  of  the  act,  ''necessary  to  administer  the  public  business." 
The  term  ''necessary"  has  been  construed,  in  similar  connections,  as 
meaning — not  absolutely  necessary,  but  reasonably  necessary  or 
clearly  conducive,  to  the  object  expressed.  (See  the  Legal  Tend 
Gases,  12  Wallace,  457,  539.)  The  Secretary  of  War  should  be  as 
sured  that  the  proposed  pubhcation  would  clearly  and  materially  con 
duce  to  the  due  administration  of  the  public  business  before  causing 

^  See  War  Department  circular  of  Nov.  2,  1901. 
2  See  sec.  5,  act  of  June  13,  1902  (32  Stat.  373). 


ARMY  I  B   2  ll  (2).  76 

the  printino:  to  be  done  by  the  Public  Printer.  P.  60,  442,  Dec,  1891. 
Similarly  advised  in  regard  to  a  translation,  by  an  Artillery  officer, 
from  the  Russian,  of  lectures  on  the  subject  of  the  '  'Resistance  of  guns 
and  interior  ballistics, "  a  precedent  being  cited  of  a  work  bv  a  surgeon 
of  the  Army,  entitled  ** Notes  on  Military  Hygiene,"  held  by  the  Sec- 
retary of  War  (Apr.,  1890)  to  be  valuable  though  not  necessary  in 
the  sense  of  the  statute.  P.  60,  4U,  Dec,  1891;  C.  18679,  SepL 
13,  1906. 

IB2I1  (2).  Held  that  the  Secretary  of  War ''is  authorized  bylaw" 
(see  public  printing  and  binding  act  of  January  12,  1895)  to  have  the 
Commissar}^'s  Handbook,  or  any  other  similar  work  needed  in  the 
business  of  the  War  Department,  printed  at  the  Government  Print- 
ing Office  and  paid  for  irom  the  War  Department's  allotment  of  the 
ap})r()priation  for  ''public  printing  and  binding."  C.  1679,  Aug., 
1S95;  18679,  Sept.  13,  1906. 

I  B  3.  Held  that  during  the  illness  of  the  Secretary  of  War  or 
during  liis  temporary  absence  from  the  seat  of  government  the  As- 
sistant SecretaiT  of  War  must,  if  present,  serve  as  Acting  Secretary 
of  War,  unless  the  President  shall  direct  otherwise ;  but  that  by  direc- 
tion of  the  President  the  duties  of  the  Secretary  may,  whether  the 
Assistant  Secretaiy  be  present  or  absent,  be  devolved  upon  {a)  the 
head  of  any  other  executive  department ;  (6)  any  other  officer  in  any 
of  the  executive  departments  whose  appointment  is  vested  in  the 
President  by  and  wath  the  advice  and  consent  of  the  Senate ;  (c)  the 
commanding  general  of  the  Army,  if  there  be  one ;  or  {d)  the  chief  of 
any  military  bureau  of  the  War  Department;  and  that  the  officers 
coniprised  in  classes  (Jb)  and  id)  include,  among  others,  the  Chief  of 
Staff,  The  Adjutant  General,  the  Inspector  General,  the  Judge  Advo- 
cate General,  the  Quartermaster  General,  the  Commissary  General, 
the  Surgeon  General,  the  Paymaster  General,  the  Chief  of  Ordnance, 
the  Chief  of  Engineers,  the  Chief  Signal  Officer,  and  the  Chief  of  the 
Bureau  of  Insular  Affairs.     C.  18176,  Sept.  7,  1911. 

I  B  4  a.  The  War  Department  has  no  special  regulations  covering 
the  matter  of  the  qualifications  of  attorneys  appearing  before  it.  In 
practice  any  attorney  who  has  legal  authority  to  represent  a  client 
in  a  particular  matter  will  be  heard  by  the  department  in  that  matter. 
C.  2931,  Feb.,  1897,  to  Mar.,  1900. 

I  B  5  a.  By  the  act  of  June  22,  1870  (16  Stat.  162),  the  whole 
matter  of  the  employment  of  counsel  in  cases  of  a  public  nature, 
and  the  settlement  of  their  compensation,  has  been  taken  from 
the  chiefs  of  the  other  executive  departments  and  transferred  to  the 
Attorney  General.  Section  189,  R.  S.  (derived  from  sec.  17  of  said 
act),  provides  generally  that  "No  head  of  a  department  shall 
employ  attorneys  or  counsel  at  the  expense  of  the  United  States ; 
but  when  in  need  of  counsel  or  advice  shall  call  upon  the  Department 
of  Justice,  the  officers  of  which  shall  attend  to  the  same."  The 
subject  is  regulated  in  detail  by  sections  356  to  367,  R.S.;  and  when 
an  officer  or  soldier  gives  notice  of  a  suit  or  prosecution  commenced 
against  him  for  an  act  done  in  the  due  performance  of  a  militaiy 
duty  and  applies  to  be  defended  at  the  expense  of  the  United  States, 
the  Secretaiy  of  War,  if  he  deems  the  case  to  be  one  in  which  such 
action  will  be  just  and  expedient,  will  refer  the  papers  to  the  Attorney 
General  for  the  proper  action.    R.  37,  99,  June,  1876;  P.  60,363, 


76  ARMY  I  B  5  a. 

Nov.,  1891;  62,  32,  Oct,  1893;  C.  11458,  Nov.  8, 1901;  12208,  Mar.  15, 
1902;  14570,  Afr.  29, 1903;  21164,  Feb.  19  to  Sept.  3,  1907. 

In  the  following  instances  the  officer  sued  or  prosecuted  was  con- 
sidered to  have  acted  in  the  performance  of  his  military  duty,  and  the 
Attorney  General  was  requested  to  designate  the  proper  assistant 
United  States  attorney  to  appear  on  the  officer's  behalf :  Where  a 
constructing  quartermaster  was  sued  by  a  contractor  for  alleged 
arbitrary-  action  in  making  the  contractor  ''replace  certain  shutters 
on  the  windows  of  a  building  he  was  constructing"  {C.  12208,  Mar.  15, 
1902);  where  an  officer,  in  obedience  to  the  orders  of  his  commanding 
officer,  undertook  to  drive  off  the  military  reservation  a  number  of 
trespassing  horses,  and  it  was  alleged  that  he  had  exceeded  the 
necessities  of  the  case  and  used  undue  severity  in  removing  them, 
and  suit  had  been  brought  against  him  as  a  private  individual  to 
recover  damages  (0.  22007,  Aug.  30,  1902) ;  where  an  officer  on  duty 
at  Sea  Girt  was  sued  for  a  statutory  penalty  prescribed  by  State  laws 
for  not  stabling  the  horses  of  his  battery  (C.  27740,  Aug.  19,  1908); 
where  an  officer  traveling  on  duty  in  a  Government  conveyance  in 
which  he  was  merely  a  passenger  was  sued  for  damages  resulting 
from  an  injury  caused  by  the  alleged  negligence  of  the  driver  (C.  21739, 
July  1,  1907);  so  also  where  an  officer  was  traveling  on  duty  as  a 
passenger  in  a  Government  automobile  in  New  York  City  and  the 
machine  ran  over  a  pedestrian^  {C.  28517,  June  12,  1911);  where 
a  civilian  attempted  to  sell  fruit  on  a  reservation  in  violation  of  the 
orders  of  the  commanding  officer,  who  had  the  civilian  confined  in  the 
guardhouse  for  a  short  period  of  time  pending  an  investigation  by 
him,  and  the  civilian  sued  the  commanding  officer  as  a  private  in- 
dividual in  the  civil  courts  for  damages  for  the  alleged  illegal  con- 
finement, the  commanding  officer  urging  that  his  action  was  strictly 
in  the  line  of  duty  (0. 28517,  Oct.  7, 1911);  where  a  fireman  on  a  trans- 
port was  discharged  for  refusing  to  do  his  duty  and  thereupon  sued 
the  transport  quartermaster  in  the  civil  courts  as  a  private  individual 
{0.  28517,  Oct.  19,  1911) ;  where  a  post  exchange  officer  contemplated 
bringing  an  action  against  a  corporation  for  the  price  of  certain 
articles  sold  to  the  exchange  (C.  19268,  Mar.  1,  1906) ;  and  so  where 
a  so-called  company  exchange  was  carried  on  at  a  post  by  the  consent 
of  the  commanding  officer,  although  such  exchange  was  not  authorized 
by  law  or  regulations,  and  an  action  was  brought  against  the  indi- 
vidual officers  in  charge  of  the  exchange  for  the  debts  of  the  concern, 
held  that  owing  to  the  fact  that  the  exchange  had  existed  by  the 
authority  of  the  commanding  officer  and  owing  to  other  peculiar 
circumstances  of  the  case,  it  would  be  proper  for  the  officers  sued 
to  request  to  be  provided  by  the  Government  with  counsel  (C.  20279, 
Apr.  20,  1907) ;  where  a  former  officer  of  the  volunteers  was  sued  by 
a  former  soldier  of  his  regiment  for  alleged  false  imprisonment  grow- 
ing out  of  circumstances  connected  with  the  former  military  service 
of  all  parties  (0.  10150,  Apr.  4,  1901) ;  but  where  a  suit  was  brought 
by  the  parents  of  a  deceased  soldier  against  a  railroad  company  for 
damages  for  alleged  negligence  in  causing  the  death  of  the  soldier, 
held  that  as  the  United  States  was  not  a  party  to  the  suit  and  had  no 

^  In  this  instance  the  case  was  removed  to  the  United  States  circuit  court  for  trial, 
and  the  expense  of  the  removal  bond  was  paid  from  the  appropriation  for  contingencies 
of  the  Army. 


ARMY   I   B   5  b.  77 

lethal  interest  in  it  there  was  no  obligation  to  represent  the  parents 
in  their  litigation  {C.  16478,  June  16,  1904);  so  where  an  officer  was 
siuhI  for  damages  for  the  removal  of  trespassing  animals  from  a 
military  reservation  with  alleged  undue  and  unlawful  severity,  and 
under  instructions  of  the  trial  court  the  only  question  at  issue  was 
as  to  the  manner  in  which  the  officer  had  exercised  his  authority,  and 
a  judgment  had  been  rendered  against  the  officer  and  this  judgment 
had  been  affirmed  by  the  court  of  last  resort,  held  that  the  Govern- 
ment would  not  be  warranted  in  furnishing  counsel  or  taking  other 
ailirmative  action  to  resist  the  execution  of  the  judgment.^  C.  22007, 
Apr.  13,  1911. 

I  B  5  b.  Wliere  a  discharged  volunteer  soldier  made  out  fraudulent 
final  statements  and  presented  the  same  to  a  paymaster  for  payment, 
advised  that  the  matter  be  referred  to  the  Department  of  Justice, 
that  the  man  might  be  proceeded  against  under  section  5438,  R.  S. 
C.  7284,  Nov.,  1899. 

I  B  6  a.  In  a  case  in  which,  in  1873,  a  judgment  was  obtained  in  a 
Territorial  court  against  two  officers  for  an  act  performed  in  good 
faith  and  in  the  zealous  and  conscientious  discharge  of  what  was 
believed  to  be  a  pubhc  duty  devolved  upon  them  by  an  order  of  the 
department  commander,  and  this  judgment  was  subsequently  (in 
1877)  affirmed  by  the  Supreme  Court  of  the  United  States  ^ — the 
officers  having  been  defended  by  counsel  assigned  to  defend  them  by 
the  Department  of  Justice — advised  that,  notwithstanding  the  fact 
that  their  act  had  been  thus  determined  to  have  been  illegal,  an 
application  made  by  them  to  Congress  for  an  appropriation  to  defray 
the  amount  of  the  judgment,  would  properly  be  favored  by  the  Sec- 
retary of  War.3    R.  41,  433,  Oct.,  1878. 

I  B  6  b.  Held  that  a  proper  case  had  arisen  for  congressional  relief 

}  when,  due  to  no  fault  of  the  disbursing  officer,  his  consignment  of 
public  money  arrived  short  of  the  proper  amount,  and  recommended 

,  that  such  relief  be  requested.     C.  25606,  Feb.  4,  1910. 

1  B  7  a.  The  Army  appropriation  act  for  the  year  ending  June  30, 
1896,  made  the  usual  appropriation  ''for  cloth,  woolen  material,  and 
for  the  manufacture  of  clothing  for  the  Army;  for  issue  and  sale  at 

*  So  where  a  soldier  was  arrested  and  prosecuted  in  the  United  States  court  for  killing 
another  soldier  and  was  without  funds  and  unable  to  employ  counsel,  and  it  was  be- 
lieved that  he  would  not  obtain  justice  unless  properly  defended,  the  Department 
of  Justice  declined  to  undertake  the  defense,  holding  that  as  the  United  States  at- 
torney was  prosecuting,  it  would  not  be  proper  for  a  representative  of  the  Attorney 
General  also  to  defend  the  case,  but  suggested  that  the  Attorney  General  could  call 
'  for  a  report  and  direct  a  nolle  pros  if  there  was  not  sufficient  reason  for  a  trial.  See 
C.  5684,  J.  A.  G.  0. 
■^  Bates  V.  Clark,  5  Otto,  205. 

2  By  the  acts  of  Mar.  3,  1863,  c.  81,  s.  4;  May  11,  1866,  c.  80,  s.  1;  and  Mar.  2,  1867, 
c.  155,  the  order  or  authority  of  the  President  is  made  a  defense  in  any  court  of  the 
United  States  or  of  the  States,  to  any  prosecution  or  suit  instituted  against  an  officer 
or  soldier  of  the  Army,  for  an  arrest,  trespass,  or  other  act  made  or  done  by  such 
authority,  during  the  War  of  the  Rebellion.    Under  these  Statutes  it  would  appear 

^  that  an  officer  or  soldier  could  not  be  made  liable  to  punishment  or  damages  for  any 

i  legitimate  act  performed  during  the  war  in  the  line  of  his  duty  or  under  the  orders 

01  a  proper  superior;  otherwise,  however,  as  to  injuries  or  wrongs  done  in  the  absence 

of  legal  orders,  or  on  the  personal  responsibility  of  the  individual.    See,  as  illus- 

:  tratmg  this  subject  the  decision  of  the  Supreme  Court  in  Beard  v.  Burts,  5  Otto,  434. 

I      In  the  case  of  In  re  Murphy,  Woolworth,  141,  it  was  held  by  Justice  Miller  that  the 

!  act  of  1867  was  ex  post  facto  and  unconstitutional,  in  so  far  as  it  assumed  to  validate 

punishments  imposed  by  military  courts  which  would  otherwise  be  invalid. 


78  ARMY  IBS. 

cost  price  according  to  the  Army  Regulations."  Army  Regulations 
prescribe  that  commanding  oflicers  may  order  necessary  issues  of 
clothing  to  military  prisoners  who  have  no  clothing  allowance  from 
deserters'  or  other  damaged  clothing  or  from  clothing  specially  pro- 
vided for  the  purpose.  Damaged  clothing  and  clothing  specially 
provided  would  be  unissued  clothing  purchased  from  the  appropria- 
tion for  clothing,  camp  and  garrison  equipage.  This  paragraph  of 
the  regulations  should  be  accepted  as  an  authoritative  construction 
of  that  part  of  the  appropriation  act  relating  to  clothing,  etc.,  to  the 
effect  tnat  the  word  ''Army,''  as  used  therein,  includes  general 
prisoners.  Held,  therefore,  that  the  Secretary  of  War  could  legally 
authorize  issues  of  overcoats,  arctic  overshoes,  woolen  mittens,  and 
flannel  shirts  to  general  prisoners,*  as  a  charge  against  the  appropria- 
tion for  clothing  of  the  Army.     C.  2057,  Mar..,  1896. 

I  B  8.  There  is  no  law  exj)ressly  relating  to  the  subject,  but  the 
Secretary  of  War  in  the  exercise  of  his  general  power  over  the  move- 
ments of  members  of  the  Army,  may  order  a  hospital  attendant,  an 
enlisted  man,  to  accompany  an  invalid  discharged  soldier  to  the 
Soldiers'  Home.     G.  2592,  Sept.,  1896. 

I  B  9.  The  Secretary  of  War  has  authority  to  authorize  dredging 
operations,  in  so  far  as  the  interests  of  navigation  are  concerned,  but 
is  without  jurisdiction  to  give  permission  to  dredge  for  gold  in  the 
navigable  waters  of  the  United  States.^  G.  7^87,  Jan.  6, 1900;  7982, 
Apr.  9,  1900;  8072,  Apr.  23,  1900;  8408,  June  13,  July  9,  1900  and 
June  8,  1910;  12918,  June  26,  1902;  22845,  Mar.  5,  1908. 

I B  10.  Held,  that  the  Secretary  of  War  and  not  the  Secretary  of  the 
Navy  is  responsible  for  the  construction  of  fortifications  and  seacoast 
defenses.     G.  12389,  Apr.  9,  1902. 

I  B  11.  While  comity  enjoins  that  the  authorities  of  the  United 
States  should  in  general,  and  in  any  proper  manner,  facilitate  the  legal 
operations  of  State  officials,  yet  no  such  obligation  can  be  deemed  to 
exist  where  the  rendermg  of  the  desired  facilities  would  materially 
interfere  with,  or  embarrass,  the  due  prosecution  of  a  public  function 
under  an  act  of  Congress.  Held,  therefore,  that  the  Secretary  of  War 
may  decline  to  order  a  commanding  officer  to  furnish  a  list  of  names 
of  employees  under  his  charge  to  a  civil  official  for  tax  collection 
purposes.     G.  1300,  Apr.  27,  1895. 

I  C  1.  On  the  question  of  whether  a  soldier  on  furlough  might  be 
employed  as  a  servant  by  an  officer,  Jield,  that  under  the  wording  of 
section  1232,  R.  S.,  ''no  officer  shall  use  an  enlisted  man  as  a  servant 
in  any  case  whatever,"  there  would  be  no  authority  in  law  for  except- 
ing furloughed  soldiers  from  the  operation  of  the  statute.  G.  1867, 
Nov.  23,  1895. 

1  C  2.  An  officer  or  soldier  can  not  be  deprived  of  his  pay  by  means 
of  any  civil  process  of  attachment  or  levy  on  execution.  So  where  a 
wife,  in  an  action  of  divorce  against  her  husband,  a  captain  in  the 
United  States  service,  obtained  an  interlocutory  judgment  for  an 
allowance  pendente  lite,  held,  that  there  was  no  precedent  or  legal 
ground  for  requiring  him  to  satisfy  the  amount  of  such  judgment  out 
of  his  pay.  R.  8,  493,  May,  1864;  0.  13097,  Aug.  8,  1902;  13439, 
Oct.  14,  1902. 

^  See  Circular  5,  A.  G.  O.,  1896,  authorizing  such  issues  to  be  made  when  in  the  judg- 
ment of  the  department  commander  necessary  to  prevent  suffering, 

2  See  sec.  26,  act  of  June  26,  1900  (31  Stat.  321). 


I 


ARMY   I   C  3.  79 

■'^  I  C  3.  In  the  absence  of  express  authority  from  Congi*ess,  an  officer 
of  the  Army  can  not  accept  remuneration  from  a  foreign  power  in 
return  for  miUtaiy  or  other  pubhc  service  rendered,  without  a  viola- 
tion of  Art.  I,  sec.  9,  par.  8,  of  the  Constitution.  Nor  can  such  an 
officer  (m  the  absence  of  such  authority)  properly  be  granted  a  leave 
of  absence  for  the  purpose  of  rendering  foreign  service,  even  without 
compensation,  since  such  a  proceeding  would  oe  contrary  to  the  spirit 
and  intent  of  the  laws  relating  to  the  Army,  which  clearly  contemplate 
that  the  services  of  its  officers  shall  be  rendered  to  the  United  States.* 
R.  37,  4^,  Am-,,  1876;  C.  20396,  Apr,  15,  1910. 

I  C  4.  Held,  that  the  acceptance  by  an  officer  of  a  present  from 
enlisted  men  recently  under  his  cormnand  is  incompatiolo  with  the 
proper  relation  between  officers  and  enlisted  men.  C.  10102,  Mar. 
29,1901. 

I  D  1  a.  Under  the  law  the  power  of  appointing  cadets  is  in  the 
President,  and  with  the  exception  of  the  cadets  appomted  at  large,  the 
appointments  are  required  to  be  made  from  *' actual  residents  of  the 
congi-essional  or  Territorial  districts  or  of  the  District  of  Columbia, 
respectively,  from  which  they  purport  to  be  appointed."  The  privi- 
lege of  selecting  those  appointed  from  congressional  districts,  which 
has  been  accorded  to  Members  of  Congress,  is  one  which  rests  on  reg- 
ulation and  long  practice,  and  this  privilege  is  limited  to  the  nomina- 
tion of  such  persons  as  meet  the  requirements  of  law.  In  making  the 
appointments  it  is  the  duty  of  the  President  to  appoint  only  such  per- 
sons as  comply  with  the  provisions  of  the  statute,  and  the  decision  of 
the  Representative  in  the  matter  does  not  relieve  him  from  this  duty. 
R.  Ji2,  601,  Apr.,  1880;  C.  6615,  June,  1899;  16602,  July  19  and 
26,  1904;  23425,  June  13,  1908. 

ID  1  a  (1).  A  State  having  been  redistricted  by  an  act  of  its 
-.  legislature,  held,  (1)  That  the  cadets  now  at  the  Military  Academy 
t  appointed  from  concessional  districts  of  that  State  should,  where  the 
numbers  of  their  districts  had  been  changed,  be  credited  to  the  new 
districts,  so  as  to  appear  on  the  list  as  representing  the  districts  now 
actually  including  the  towns,  etc.,  which  were  their  places  of  resi- 
dence when  appointed;  (2)  That  existing  conditional  appointments 
made  under  section  1317,  R.  S.,  providing  that  such  appointments 
shall  be  made  one  year  in  advance  of  admission  to  the  academy,  and 
which  accordingly  had  been  made  prior  to  the  redistricting,  were  valid 
and  should  stand,  the  appointees  being  deemed  entitled  to  admission 
at  the  designated  time,  subiect  to  the  prescribed  conditions;  (3)  That 
future  appointments  should  be  made  according  to  the  districts  as 
newly  estabhshed  and  numbered;  any  increased  delay  that  might 
thus  be  caused  in  the  filling  of  vacancies  for  appointments  for  par- 
ticular districts  being  but  a  necessary  result  of  the  new  legislation. 
R.  39,  575,  June,  1878. 

ID  1  a  (2).  Section  1317,  R.  S.,  prescribes  that  cadets  shall  be 
appointed  one  year  in  advance  of  the  time  of  their  admission  to  the 
academy,  etc.  It  is  to  the  date  of  appointment  and  not  to  date  of 
admission  that  the  qualification  as  to  residence  (sec.  1315,  R.  S.) 

*  Note  in  this  connection  the  opinion  of  the  Attorney  General,  in  15  Op.,  187,  to 

;ne  effect  that  the  Centennial  Commissioners  appointed  by  the  President  under  the 

^'  |ict  of  Mar.  3,  1871,  were  officers  of  the  United  States,  holding  offices  of  trust  (though, 

,     ;^  the  absence  of  salary,  not  oiprofit),  and  that  therefore,  in  view  of  the  prohibition 

)f  Art.  I,  sec.  9,  par.  8,  of  the  Cfonstitution,  they  could  not,  without  the  authority  of 

congress,  legally  accept  presents  from  a  foreign  Government. 


80  ARMY  I  D  1  a  (2)  (a)  [1]. 

refers.  Thus  held,  that  a  change  of  residence  by  a  father  would  not 
affect  the  appointment  of  his  minor  son,  legally  made  prior  to  the 
change  of  residence.*     P.  45,  288  and  303,  Feb.,  1891. 

ID  1  a  (2)  (a)  [1].  Assuming  that  an  emancipated  minor  is  so  far 
sui  juris  that  he  can  acquire  and  change  domicil  like  a  person  of  full 
age,  the  same  rule  of  intention  applies  to  determine  the  question  of 
domicil  in  his  case  as  in  any  other — there  must  be  an  animus 
manendi.  So  where  an  alleged  emancipated  minor  took  up  a  so-called 
residence  in  a  congressional  district  other  than  that  of  his  father's 
habitation,  which  residence  was  intended  to  be  merely  temporary 
and  was  resorted  to  for  the  sole  purpose  of  securing  an  appointment 
as  cadet  from  that  district,  Tield,  that  such  supposed  emancipation 
and  pretended  change  of  domicil  could  have  no  legal  effect  in  quali- 
fying the  party  for  such  an  appointment  under  section  1315,  R.  S. 
B.  56,  473,  Aug.,  1888, 

I  D  1  a  (2)  (a)  [2]  [a].  An  unemancipated  minor  can  acquire  no 
residence  distinct  from  that  of  his  father  or  parent ;  ^  otherwise  in  the 
case  of  an  emancipated  minor.  C.  6615,  June,  1899.  So  Tield 
that  unemancipated  minors  whose  fathers  resided  in  certain  States 
and  congressional  districts  could  not,  by  removing  to  and  abiding  in 
other  States  or  districts,  acquire  such  an  '^actual  residence"  therein 
as  to  render  them  ehgible  for  appointment  as  cadets  under  section 
1315,  R.  S.,^  R.  29,  83,  July,  1869;  30,  528,  July  23,  1870;  31,  313, 
Apr.,  1871. 

I D  1  a  (2)  (a)  [2]  [a]  [A],  Held  that  the  mere  fact  that  an  officer  of 
the  Army  was  on  duty  under  mihtary  orders  in  a  certain  Territory 
did  not  make  his  minor  son  eligible  for  appointment  as  a  cadet  from 
such  Territory,  the  fact  of  the  father's  being  thus  on  duty  not  being 
sufficient  evidence  of  his  being  a  legal  resident  therein.  R.  30,  528, 
July,  1870.  So  where  an  Army  officer  was  temporarily  on  duty  as 
mihtary  instructor  at  a  college  in  a  congressional  district  which  was 
not  his  actual  residence,  held  that  his  unemancipated  minor  son  com- 
morant  there  was  not  eligible  for  appointment  as  a  cadet  from  such 
district.     C.  1220,  Apr.,  1895. 

I  D  1  a  (2)  (a)  [2]  [a]  [B].  Held  that  a  minor  whose  father  was  a 
foreigner  domiciled  in  Cuba,  and  who  was  himself  commorant  in  the 
United  States  only  for  the  purpose  of  being  educated,  was  not  eligible 
for  appointment  as  a  cadet  from  a  congressional  district.  R.  35, 
U6,  June,  1874. 

I  D  1  a  (2)  (h)  [1].  A  party  was  duly  nominated  and  appointed 
as  a  cadet  for  a  certain  congressional  district  one  year  in  advance 
agreeably  to  sections  1315  and  1317,  R.  S.  Later  another  party  was 
by  the  same  Member  of  Congress  nominated  for  a  provisional  appoint- 
ment— i.  e.,  an  appointment  in  the  event  of  the  regular  nominee 
bein^  found  disqualified  or  failing  to  pass  the  examination — and  was 
appointed  accordingly.  Subsequently,  the  regular  nominee  having 
resigned  his  appointment,  a  third  person  was  nominated  in  his  stead 
by  the  same  Member  and  (under  sec.  1317,  R.  S.)  appointed  to  fill 
the  vacancy.     Held,  that  this  appointment  was  a  valid  one,  and  that 

1  See  13  Op.  Atty.  Gen.,  130.  _ 

2  See  Crawford  v.  Wilson,  4  Barb.  505;  Brown  v.  Lynch,  2  Bradf.,  214;  Wheeler  v.,i 
Burrow,  18  Ind.,  14;  Hiestand •?;.  Kuns,  8 Blackf .,  345;  Allen ?;.  Thomasen,  11  Humph.,{ 
536;  Hardy  v.  De  Leon,  5  Texas,  211;  Story,  Conflict  of  Laws,  sec.  46. 

^  This  opinion  was  concurred  in  by  the  Attorney  General,  in  13  Op.,  130. 


ARMY   I  D   1   a    (2)     (c).  81 

the  provisional  appointee  had  no  legal  claim  to  have  received  the 
same.  The  statute  law  does  not  recognize  such  "provisional" 
appointments,  the  same  being  resorted  to  m  the  practice  of  the  War 
Department,  as  a  matter  of  convenience,  in  order  that  there  may  be 
a  person  at  hand  to  take  the  place  of  a  regular  nominee  who  may  fail 
at  the  last  moment,  and  the  embarrassment  of  a  vacancy  occurring 
;it  that  time  be  thus  as  far  as  possible  avoided.  The  provisional 
appointee,  or  ''alternate,"  was  not  entitled  to  be  substituted  for  the 
rco^ular  appointee  on  his  resignation,  and  not  having  been  so  sub- 
stituted, out  another  person  having  been  selected,  he  remained  with 
precisely  the  claim  wnich  he  had  originally,  viz,  to  present  himself 
for  examination  and  appointment  in  case  the  regular  nominee  was 
not  accepted,  the  only  difference  being  that  the  regular  nominee  had 
meanwhile  been  changed.     R.  4f  162,  Feb.,  1879. 

ID  1  a  (2)  (c).  As  Alaska  is  an  organized  Territory  within  the 
meaning  of  section  1315,  R.  S.,  as  amended  by  section  4  of  the  act  of 
June  6,  1900  (31  Stat.  656),  lield  that  a  cadet  may  lawfully  be 
appointed  to  the  Military  Academy  from  that  Territory.  C.  19179, 
Feb.  10,  1906. 

ID  1  b  (1).  Section  1318,  R.  S.,  prescribes  that  appointees  to  the 
Militaiy  Academy  shall  be  admitted  only  between  the  ages  of  17  and 
22  years.  The  academic  year  begins  on  September  1.  Therefore 
held  that  an  ai)pointee  who  would  not  be  17  until  the  preceding 
August  could,  without  a  violation  of  the  statute  cited,  be  permitted 
to  take  the  June  examination  and,  if  found  quahfied,  to  remain  at 
the  academy  at  his  own  expense  until  of  lawful  age  to  be  admitted. 
C.  3886,  Feb.,  1898.  A  cadet  over  22  years  of  age  who  has  been 
separated  from  the  ^lihtary  Academy  is  not  eligible  for  reappoint- 
ment or  reinstatement.     C.  3852,  Feb.  8,  1898. 

I  D  1  c  (1).  If  a  person  whose  nomination  as  cadet  is  proposed 
has  obtained  a  divorce  from  a  bond  of  matrimony^  (a  vinculo  matri- 
monii),  he  would  seem  to  be  an  unmarried  man  within  the  meaning 
of  paragraph  24,  Regulations  for  the  United  States  Military  Academy, 
and  as  sucli  would  be  prima  facie  eligible  for  appointment  as  a  cadet 
at  the  Mhtary  Academy  upon  the  presentation  of  a  duly  authenti- 
cated copy  of  the  decree  of  absolute  divorce  granted  by  the  State 
court  having  jurisdiction  of  the  case  and  of  the  parties.  C.  27225, 
Sept.  7,  1910. 

I  D  1  d  (1).  Where  a  regular  appointee  as  cadet,  having  resigned, 
was  again  nominated  to  fill  his  own  vacancy,  the  same  not  having 
meanwhile  been  filled  by  the  appointment  of  another,  lield  that  the 
President  was  empowered  under  section  1317,  R.  S.,  to  reappoint 
him.     R  37,  195,  Feb.,  1871. 

I  D  1  d  (2).  In  view  of  the  provisions  of  section  1325,  R.  S.,  held 
that  the  President  would  not  be  empowered  to  reappoint  a  cadet 
discharged  as  deficient  in  either  conduct  or  studies  except  upon  the 
recommendation  of  the  academic  board.  R.  43,  372,  July,  1880; 
C.  3796,  Jan.,  1898;  16602,  July  19,  1904. 

I  D  1  d  (3).  Section  1325,  R.  S.,  provides  that  no  cadet  shall  be 
reappointed  to  West  Point  found  to  be  deficient  in  conduct  and  dis- 
ijipline  under  the  rules  of  the  institution.  Held  that  this  prohibition 
applies  to  the  case  of  a  cadet  dismissed  by  sentence  of  general  court- 
martial.  C.  29329,  Dec.  26,  1911. 
31106°— 12 6 


82  ARMY  I  D  2  a. 

I  D  2  a.  A  cadet  found  deficient  and  recommended  for  discharge 
was  granted  a  furlough  without  pay  by  the  Secretary  of  War;  as  no 
service  was  rendered  by  the  cadet  during  the  period  of  his  furlough, 
held  to  be  a  legitimate  exercise  of  authority  by  the  Secretary  of  War. 
C.  15709,  Jan.  16,  190^ 

I  D  2  b.  Held  by  the  Secretary  of  War  in  July,  1884,  in  view  of  the 
requirements  of  section  1325,  R.  S.,  that  a  cadet  who  is  reported  as 
deficient  in  either  conduct  or  studies  and  recommended  to  be  dis- 
charged from  the  academy  shall  not,  unless  upon  recommendation  of 
the  academic  board,  be  reappointed  to  the  academy,  etc.,  and  that 
the  duty  of  the  Secretary  of  War  in  executing  the  findings  and  recom- 
mendation of  the  board  was  ministerial  in  character.  C.  3796,  July 
23,  1884. 

I  D  3  a.  Cadets  are  amenable  to  trial  by  court-martial  for  violations 
of  the  regulations  of  the  academy,  as  ''conduct  to  the  prejudice  of 
good  order  and  military  discipline."  ^  R.  36,  129,  Dec,  1874;  61,  P. 
370,  Sept.,  1893.  The  records  of  trials  of  cadets  by  general  courts- 
martial  appointed  by  the  superintendent  pass  dhectly  to  the  Secre- 
tary of  War  for  review  and  not  to  the  commanding  general, 
Department  of  the  East.     C.  15821,  Jan.  20,  1904. 

I  D  3  b  (1 ) .  The  superintendent  of  the  Military  Academy  can  have 
no  power,  by  virtue  of  a  regulation  of  the  academy,  to  try  and  punish 
a  cadet  for  a  military  offense  for  which,  under  the  Articles  of  War,  he 
is  amenable  to  trial  by  court-martial.  A  regulation  assuming  to  con- 
fer upon  him  such  power  would  be  in  contravention  of  law  and  inop- 
erative. Otherwise  of  a  regulation  which  merely  authorized  a  measure 
of  school  discipline.  So,  where  a  cadet,  on  arraignment  for  a  military 
offense,  pleaded  in  bar  that  he  had  already,  for  the  same  offense,  been 
punished  by  reduction  from  cadet  officer  to  cadet  private,  under  par. 
107,  Academy  Regulations,  Jield  that,  regarding  such  reduction  as  a 
form  of  school  discipline  only,  the  plea  was  properly  overruled  by  the 
court.  P.  61,373,  Sept.,  1893;  C.  9704,  Jan.  6,  1910;  19330,  Mar. 
10,  1906.  It  is  within  the  authority  of  the  President  to  suspend  a 
cadet  without  pay  in  the  operation  of  the  Military  Academy  Regu- 
lations.    C.  10513,  May  20, 1901;  15709,  Jan.  16, 1904. 

I  D  3  b  (2)  (a).  The  word  ''summarily,"  in  its  ordmary  sense, 
strongly  implies  that  the  established  course  of  legal  procedure,  namely, 
trial  by  court-martial,  is  to  be  disregarded.  Having  regard  to  this 
fact,  to  the  absence  of  statutory  provision  expressly  requiriug  resort 
to  courts-martial  as  in  case  of  naval  cadets,  to  the  existence  of  regu- 
lations at  the  time  of  the  enactment  authorizing  investigation  by 
boards  of  officers,  and  considering  also  the  opinions  expressed  in  the 
debate,  I  am  of  the  opinion  that  the  act  of  March  2, 1901  (31  Stat.  911), 
is  properly  construed  as  establishing  the  policy  of  administrative 
dismissal  by  the  Secretary  of  War  for  the  oitense  of  hazing  upon  the 
ascertainment  of  guilt  by  investigation  of  the  superintendent  of  the 
Military  Academy,  assisted  by  boards  of  officers  or  such  other  agencies 
as  may  be  authorized  by  regulation. 

^  In  this  connection  may  be  noted  the  opinion  of  the  Solicitor  General  ( 15  Op.  Atty. « 
Gen.,  634)  that,  except  for  the  offense  of  hazing,  specially  made  punishable  by  the  act  " 
of  June  23, 1874  (18  Stat.  203),  cadets  of  the  Naval  Academy  are  not  subject  to  trial  by 
court-martial.    That  cadets  of  the  Military  Academy  are  a  part  of  the  Army,  see  sec. 
1094,  R.S. 


ARMY   I  D  4.  88 

The  act  of  March  2,  1901  (31  Stat.  911),  does  not,  however,  operate 
to  bar  trial  by  court-martial  where  the  act  charged  involves  the  per- 
petrator in  the  commission  of  crime.  Where  the  criminal  aspect  of 
the  act  charged  predominates,  that  is,  where  something  more  than 
hazing  is  involved,  trial  by  court-martial  may  be  resorted  to  and  is 
the  ])referable  course  to  pursue. 

The  ])roccdure  in  respect  to  cadets  charged  with  hazing  is  nowregu- 
hited  by  the  act  of  April  19, 1910  (36  Stat.  312).  C.  9704,  Jan.  6, 1910; 
29329,  Dec.  27,  1911. 

I  D  4.  A  cadet  ap])lied  to  have  his  name  changed  on  the  Register  of 
the  Military  Academy.  Held  that  the  Secretary  of  War  would  not 
be  empowered  to  change  the  name  as  such,  thou^i  he  might  make  a 
new  contract  with  the  cadet  in  the  new  name.  JBut  advised,  as  the 
preferable  mode  of  proceeding,  that  the  cadet  first  procure  the  name 
to  be  changed  in  the  mode  prescribed  by  the  statutes  of  his  own  State, 
after  which  the  register  would  of  course  be  made  to  correspond.  P.  25, 
126,  June,  1888. 

I  D  5.  Wliere  two  cadets  were  ordered  from  West  Point  to  Wash- 
ington for  a  special  duty,  on  completion  of  which  tiiey  returned  to 
West  Point,  held,  that  not  being  commissioned  officers  they  were  not 
entitled  to  mileage.     C.  2^762,  Apr.  12,  1909. 

I  D  6.  The  act  of  December  20,  1886  (24  Stat.  351)  granting  leaves 
of  absence  to  graduates  from  the  Military  Academy,  from  date  of 
graduation,  and  after  graduation  ^'when  in  accordance  with  uniform 
practice,"  is  sufficiently  broad  to  warrant  leave  with  pay  from  date  of 
graduation,  June  12,  the  approximate  date  of  graduation,  to  Septem- 
ber 30  following,  but  the  regulation  should  be  amended  to  correspond 
to  existing  practice.  C.  13346,  Dec.  8,  1903.  Held  also,  that  said 
leaves  are  not  cumulative.  C.  13346,  Dec.  8,  1903.  Held  further, 
that  where  an  officer  is  ordered  back  to  duty  at  the  academy  during 
graduating  leave,  time  so  spent  should  be  deducted  from  said  leave 
and  may  be  taken  advantage  of  after  September  30.  C.  13346,  Apr. 
17,  1908. 

I  E  1  a.  The  warrant  or  certfficate  given  to  a  noncommissioned 
officer  is  as  much  the  personal  property  of  the  individual  as  is  the 
commission  given  to  a  commissioned  officer.  In  the  absence  of  any 
statute  or  regulation  requiring  that  a  sergeant  or  corporal  shall  sur- 
render his  warrant  on  being  reduced  to  the  ranks  (or  dishonorably 
discharged),  he  may  retain  it  with  the  same  right  as  that  by  whicn 
an  officer  retains  his  formal  commission  on  being  dismissed.  R.  4^, 
310,  July,  1878. 

I  E  1  b.  It  being  the  purpose  of  par.  271,  Army  Regulations,  1908 
(276  of  1910),  to  secure  tne  continuance  of  their  status  as  such  to  non- 
commissioned officers  who  are  absent  sick,  due  to  disability  or  wounds 
incurred  in  fine  of  duty;  lield,  that  a  first-class  private,  while  absent 
undergoing  treatment  at  Fort  Bayard,  N.  Mex.,  was  entitled  to  hold 
his  rating  as  first-class  private.  C.  25760,  Nov.  6,  1909.  Held  other- 
wise, however,  as  to  first  sergeants  and  company  quartermaster  and 
stable  sergeants.     C.  25760,  Oct.  4,  1910. 

Paragraph  271,  Army  Regulations,  1908  (276  of  1910),  forbids  the 
reduction  of  a  noncommissioned  officer  while  absent  on  account  of 
wounds  or  disabihty  incurred  in  the  line  of  duty;  par.  268,  Army 
Regulations,  1908  (273  of  1910),  vests  the  selection  of  first  sergeants 


84  AKMY  I  E  2  a. 

and  company  quartermaster  and  stable  sergeants  in  the  company 
commander;  Jietd,  that  these  regulations  should  be  read  together;  as 
the  sergeants  last  named  are  detailed  hj  the  company  commander, 
they  may  be  relieved  by  other  sergeants  with  the  same  authority ;  such 
relief  from  detail  not  constituting  '^reduction"  within  the  meaning  of 
par.  271  (276  of  1910) ;  a  process  which  involves  degradation  in  rank, 
which  is  not  the  case  where  noncommissioned  ofiicers  are  relieved 
from  duty  as  first  sergeants,  company  quartermaster,  and  stable  ser- 
geants by  other  noncommissionecf  officers  of  the  same  grade,  but  con- 
tinue to  hold  the  rank  of  sergeant  equally  after  as  before  their  relief. 
C.  25760,  Oct.  4,  1910. 

Held,  that  where  the  reduction  of  a  noncommissioned  officer  was 
primarily  based  upon  his  inefficiency  in,  or  incapacity  for,  performing 
the  duties  of  his  office,  his  reduction  to  the  ranks,  though  accom- 

Elished  while  he  was  absent  due  to  sickness,  was  not  within  the  pro- 
ibition  of  the  paragraph.     C.  25760,  Jan.  20,  1911. 

Held,  also,  that  the  detail  of  a  sergeant  as  first  sergeant  of  his  com- 
pany, by  the  company  commander,  the  first  sergeant  being  absent 
sick  due  to  causes  arismg  in  line  of  duty,  did  not  fall  within  the  pro- 
hibition of  the  paragraph.     C.  25760,  Oct.  4,  1910. 

I  E  2  a.  Section  1142,  R.  S.,  authorized  the  appointment  of  com- 
missary sergeants  from  ^'sergeants  of  the  line  of  the  Army  who  shall 
have  faithfully  served  therein  five  years,  three  years  of  which  in  the 
grade  of  noncommissioned  officers."  Where  an  applicant  for  appoint- 
ment had  served  five  years,  about  two  and  a  half  years  of  which  as 
noncommissioned  officer,  and  six  months  as  commissioned  oflicer  of 
United  States  Volunteers,  it  was  held,  independently  of  the  question 
whether  the  service  in  the  volunteers  could  be  counted  in  any  event, 
that  service  as  a  commissioned  officer  could  not  be  computed  as  service 
in  the  grade  of  noncommissioned  officer  expressly  required  by  the 
statute.     C.  6793,  Aug.,  1899. 

I  E  2  b.  The  act  of  July  5,  1884  (23  Stat.  109),  in  authorizmg  the 
Secretary  of  War  to  appoint  post  q^uartermaster  sergeants,  provides 
that  they  shall  be  selected  by  examination  from  the  most  competent 
enlisted  men  in  the  Army  who  have  served  at  least  four  years  and 
whose  character  and  education  shall  fit  them  to  take  charge  of  public 
property  and  to  act  as  clerks  and  assistants  to  post  and  other  quarter- 
masters. Held,  that  the  Secretary  of  War  may  under  this  statute 
appoint  as  post  quartermaster  sergeant  any  enlisted  man  of  the  Army 
who  may  be  found  to  possess  the  qualifications  specified.  P.  J^7 , 
169,  May,  1891. 

I  E  2  c.  The  requirement  of  Army  Regulations  that  enlisted  men 
of  the  several  staff  departments,  etc.,  shall  not  be  placed  on  extra 
duty  without  authority  of  the  War  Department  contemplates  that 
sucn  authority  shall  be  obtained  prior  to  placing  the  soldier  on  duty; 
this  to  give  the  Secretary  of  War  an  opportunity  to  pass  on  the  case 
before  the  detail  is  made  and  to  make  it  unnecessary  for  him  to  take 
nunc  'pro  tunc  action  therein,  with  a  view  to  avoid  imposing  hardship 
upon  the  soldier,  where  he  is  not  satisfied  that  the  public  interest 
requires  such  detail  to  be  made.     C.  17173,  Nov.  17,  1904. 

I  E  3  a  (1).  On  question  as  to  whether  an  enlisted  man  could  serve 
as  a  postmaster,  held,  that  the  law  does  not  forbid  it  since  section 
1222,  R.  S.,  does  not  in  terms  apply  to  enhsted  men.  C.  15297,  Nov, 
27, 1909. 


A 


ARMY  I  E  3  b.  85 

On  question  as  to  whether  an  enhsted  man  serving  as  mail  carrier 
from  a  post  office  to  a  mihtaiy  post  might  take  the  ''oath  of  post- 
office  employees,"  held,  that  there  was  no  legal  objection  to  his  so 
doing.     C.  15297,  Mar.  1,  1907. 

I  E  3  b.  Section  1222,  R.  S.,  does  not  apply  to  enlisted  men.  But 
except  perhaps  in  a  rare  case — as,  for  example,  the  case  of  an  ordnance 
sergeant,  or  other  member  of  the  noncommissioned  staff,  establislied 
at  a  permanent  station — it  must  in  general  be  quite  incompatible  with 
the  status  and  obligation  of  an  enlisted  man  to  hold  any  civil  office  or 
employment,  even  one  held  for  the  mere  purpose  of  qualifying  the 
party  to  administer  oaths,  as  that  of  a  notary  public.  R.  37,  616, 
June,  1877. 

lE3b(l).  Ina  case  where  the  permanent  detail  of  a  master 
signal  electrician  in  its  bureau  of  navigation  was  requested  by  the 
Philippine  government,  lield,  that  although  the  statute  (sec.  1222, 
R.  S.)  which  provides  that  an  officer  who  holds  civil  office  by  election 
or  appointment  vacates  liis  office  by  such  acceptance  and  exercise 
of  the  functions  of  civil  office,  is  not  in  terms  applicable  to  enlisted 
men,  the  analogy  prevails  and  should  equally  prevent  enlisted  men 
from  holding  or  exercising  the  functions  of  civil  office.  Furthermore, 
Congress  in  providing  a  force  of  electrician  sergeants  in  the  Signal 
Corps,  had  it  in  mind  that  they  should  be  exclusively  employed  in  the 
worK  of  that  branch  of  the  War  Department,  and  did  not  contemplate 
that  any  of  the  noncommissioned  staff  officers  so  maintained  should 
be  permanently  employed  by  the  Phihppine  government.  C.  26897, 
June  16,  1910. 

I  E  3  c  (1).  Where  enlisted  men  were  detailed  to  assist  an  ord- 
nance mechanic  in  altering  the  concrete  emplacements  for  guns  of 
the  seacoast  artillery,  held,  that  such  duty  was  that  which  a  soldier 
is  expected  to  perform  under  his  contract  of  enHstment.  C.  14591, 
May  4,  1905.  ..... 

I  E  4.  A  chief  musician  is  an  enlisted  man,  but  not  a  noncommis- 
sioned officer.  He  is  enhsted  not  to  perform  the  duties  of  a  soldier,  but 
expressly  as  an  instructor  of  music.  Held,  that  he  can  not  legally 
be  reduced  to  the  ranks  either  by  sentence  or  by  order.  R.  33,  33, 
May,  1872}  Held  also  that  he  may  be  tried  by  regimental  or  garrison 
court,  as  well  as  by  a  general  court.  R.  31,  212,  Mar.,  1871.  Held, 
that  after  the  term  he  may  engage  in  his  profession  in  civil  life.  G. 
24179,  Bee.  7,  1908. 

IE  5.  Wliere  an  enhsted  man  who  had  been  served  at  his  post 
(which  was  not  under  the  exclusive  jurisdiction  of  the  United  States) 
with  a  subpoena  requiring  his  attendance  as  a  witness  before  a  civil 
court  of  the  State,  neglected  to  comply,  held,  that  he  was  guilty  of 
contempt,  and,  if  fined  by  the  court,  had  no  remedy;  and  this  though 
the  service  was  personal  and  not  made  through  the  commanding  offi- 
cer.    P.  35,  284,  Sept.,  1889. 

I  G  1.  The  terms  ''Regular  Army"  and  ''Volunteer  Army"  are  not 
significant  of  the  methods  by  which  these  two  branches  of  the  Army 
are  brought  into  the  service.  The  term  ^'Regular  Army"  simply 
means  the  "Standing  Army" — the  military  organization  of  the 
Government,  which  it  is  the  intention  ordinarily  to  maintain  and 

1  See  act  of  Mar.  3,  1869  (15  Stat.,  318),  and  act  of  Mar.  2,  1899  (30  Stat.,  978),  and 
sees.  1099,  1102,  and  1106  R.  S. 


86  AKMY  I  G  2  a  (l). 

continue  in  existence  indefinitely  and  without  regard  to  whether 
the  country  is  at  peace  or  at  war;  and  this  Army  is  made  up  of  per- 
sons who  engage  voluntarily  and  directly  with  the  United  States  to 
serve.     C.  1301,  Mar.,  1895;  2U06,  Apr.  19,  1907. 

lG2a(l).  The  act  of  May  27,  1908  (35  Stat.  392),  provides 'That 
on  and  after  the  thirtieth  day  of  June,  nineteen  hundred  and  eight, 
the  Porto  Rico  Provisional  Regiment  of  Infantry  shall  be  designated 
the  Porto  Rico  Regiment  of  Infantry  of  the  United  States  Army." 
Held,  that  although  this  regiment  consists  of  two  battalions,  its  legal 
status  is  that  of  a  regiment  of  Infantry  in  the  line  of  the  Army,^  and, 
as  such,  it  would  seem  to  be  entitled  to  the  staff  officers  pertaining 
to  regiments  in  the  Infantry  arm.  It  is  true  that  regiments  of 
Cavalry  and  Infantry  have  three  squadrons  or  battalions,  but  in  the 
case  of  a  regiment  of  Field  Artillery,  as  in  that  of  the  Porto  Rico 
Regiment  of  Infantry,  the  regimental  organization  consists  of  but 
two  battalions,  and  it  is  to  the  organization  which  is  officially  desig- 
nated by  Congress  as  a  regiment  that  regimental  staff  officers  author- 
ized by  law  may  be  appointed.     C.  23668,  Feb.  8,  1909. 

I G  2  a  (1)  (a).  Section  4,  act  of  May  27, 1908  (35  Stat.  392),  which 
regulates  the  appointments  to  the  grade  of  second  lieutenant  in 
the  Porto  Rico  Regiment  of  Infantry,  and  which  reads  in  part  as 
follows:  ' 'Vacancies  in  the  grade  of  second  lieutenant  may  be  filled 
by  the  President  in  his  discretion  by  the  appointment  of  citizens  of 
Porto  Rico  whose  qualifications  for  commissions  shall  be  established 
by  examination,"  Tield,  not  to  restrict  such  appointments  to  citizens 
of  Porto  Rico  but  to  be  regarded  as  a  legislative  suggestion  to  the 
President  in  exercising  the  appointing  power  in  the  Porto  Rico 
Regiment  of  Infantry  to  give  especial  recognition  to  the  citizens  of 
Porto  Rico  whether  they  be  civilians  or  enlisted  men  of  the  Porto 
Rico  Regiment.     G.  23668,  Apr.  28,  1909. 

I G  2  a  (1)  (b).  Held,  also,  that  the  Porto  Rico  Regiment  of  Infantry 
in  entitled  to  a  chaplain,  and  that  as  citizenship  in  the  United  States 
is  not  required  by  statute  as  a  condition  precedent  to  the  appointment 
of  a  regimental  chaplain,  a  ''citizen  of  Porto  Rico"  can  lawfully  be 
appointed  chaplain  of  the  Porto  Rico  Regiment  of  Infantry.  C. 
23668,  Dec.  23,  1908. 

I  G  2  a  (2)  (a).  Held,  that  the  Philippine  Scouts  are  a  part  of  the 
Regular  Army  of  the  United  States.     0.  19272,  Mar.  I4,  1906. 

I  G  2  b  (1).  On  the  question  of  whether,  in  view  of  section  4,  act 
of  August  5,  1882  (22  Stat.,  255),  a  master  gunner  could  be  detailed 
for  duty  in  the  office  of  the  Chief  of  Artillery,  lield,  that  that  office 
was  not  a  bureau  of  the  War  Department  and  did  not  therefore  come 
within  the  inhibition  of  the  statute.     C.  22133,  Sept.  24,  1907. 

I  G  2  b  (2).  Section  6  of  the  act  of  February  2, 1901  (31  Stat.,  741), 
contains  the  requirement  that:  "The  captains  and  lieutenants  pro- 
vided for  in  this  section  not  required  for  duty  with  batteries  or  com- 
f)anies  shall  be  available  for  duty  as  staff  officers  of  the  various  Artil- 
ery  garrisons  and  such  other  details  as  m.Sij  be  authorized  by  law  and 
regulations."  Held,  that  the  clause  of  legislation  above  cited  refers 
not  to  captains  and  lieutenants  in  excess  of  the  complements  author- 
ized for  companies  and  batteries  of  Coast  and  Field  Artillery,  but  to 

^  The  3  battalions  and  band  of  the  Corps  of  Engineers  constitute  a  part  of  the  line  of 
the  Army.    See  sec.  22  of  the  act  of  Feb.  2,  1901  (31  Stat.,  754). 


ARMY   I   G  2  b  (3).  87 

officers  of  those  grades  *'not  required  for  duty  with  batteries  or  com- 
panies." The  quoted  portion  of  said  section  6  is  to  be  construed  as 
a  legislative  recognition  of  the  fact  that  in  the  Artillery  Corps,  as 
reorganized,  the  number  of  oihcers  of  the  grades  mentioned  required 
for  duty  with  their  organizations  was  considerably  reduced  by  the 
abolition  of  regimental  organization  and  instruction,  and  that  there 
would  be  greater  necessity  than  in  the  other  arms  for  detaching  such 
officers  for  staff  duty  and  other  details  in  connection  with  the  new 
administration  of  the  Artilleiy  Arm  necessary  to  be  established  under 
said  act ;  and  as  authorizing  the  War  Department  to  adopt  the  neces- 
sary and  appropriate  means  for  carrying  the  provision  into  effect; 
that  therefore  if  the  Secretary  of  War  is  convinced  that  the  end 
contemplated  can  be  best  accomplished  by  carrying  captains  and 
lieutenants  needed  for  such  staff  duty  and  other  details  upon  an  *'un- 
assigned  list"  such  means  are,  under  the  language  quoted,  legislatively 
sanctioned.     C.  19797,  May  26, 1906. 

I  G  2  b  (3).  Held,  that  targets  for  subcaliber  practice  can  be  towed 
over  areas  within  which  are  ''lobster  pots"  without  subjecting  the 
Government  to  a  claim  for  damages.     C.  22112,  Sept.  21  and  30, 1907. 

I  G  3.  The  staff  of  the  Army,  consisting  of  the  General  Staff  and 
the  chiefs  of  the  Staff  Corps  and  mferior  officers  of  the  same,  constitute 
the  staff  of  the  Commander  in  Chief  of  the  Army — the  President.* 
As  such,  these  officers  are  properly  under  the  immediate  direction  of 
the  Secretary  of  War,  who  acts  for  the  President  in  the  administration 
of  the  mihtary  department.     R.  38,  253,  Aug.,  1876;  Ifi,  17,  Apr.,  1877. 

I  G  3  a  (1)  (a).  A  vacancy  having  occurred  in  the  command  of  a 
territorial  department,  a  question  arose  as  to  the  succession  to  the 
command,  in  the  operation  of  par.  193,  Army  Regulations  1908  (195 
of  1910),  held,  that  a  colonel  or  the  General  Staff,  serving  as  chief  of 
staff  of  the  department,  was  inhibited  from  succeeding  to  such  com- 
mand in  the  operation  of  the  regulations,  as  the  order  of  the  President 
detaihng  an  officer  for  duty  in  the  General  Staff  places  in  temporary 
abeyance  the  office  held  by  such  officer  in  the  arm  of  service  or  depart- 
ment of  staff  in  which  he  holds  a  permanent  commission,  and  during 
the  period  of  his  incumbency  of  office  in  the  General  Staff  he  becomes 
I  as  fuUy  an  officer  of  the  staff  as  if  he  held  a  permanent  appointment 
therein.  During  such  incumbency  he  is  as  powerless  to  exercise 
command  in  the  line  or  in  the  Army  generally  as  would  be  the  case 
if  he  were  a  permanent  officer  of  the  Staff  Corps.  C.  23317,  May 
25,  1908. 

I  G  3  a  (2) .  It  is  an  essential  incident  of  departmental  administra- 
tion that  there  should  be  some  office  in  which  the  action  of  the  Sec- 
retary of  War,  in  respect  to  the  duty  to  which  officers  of  the  Army 
are  assigned,  shall  be  made  a  matter  of  official  record;  and  that  office 
should  also  be  charged  with  the  preparation  and  submission  to  the 
Secretary  of  War  of  orders  changing  the  station  of  officers  or  appoint- 
ing them  to  particular  duties.  The  Adjutant  General,  from  the  nature 
of  his  office,  constitutes  the  channel  of  communication  between  the 
heads  of  departments  and  the  Secretary  of  War  in  such  cases,  and  in 

^  Stocqueler,  Military  Dictionary,  title  "General  staff,"  defines  this  term:  ''The 
body  of  officers  entrusted  with  the  general  duties  of  the  Army  in  aid  of  a  commander 
in  chief."  See  G.  O.  11  and  28,  A.  G.  O.,  1869;  also  two  letters  of  Secretary  of  War 
to  Lieut.  Gen.  Sheridan  (5603,  A.  G.  O.  1885)  dated,  respectively,  Dec.  9,  1884, 
and  Jan.  17,  1885. 


88  ARMY  I  G  3  a  (3). 

his  office  the  record  of  the  action  of  the  Secretary  thereon  is  made  a 
matter  of  permanent  record. 

The  necessity  of  such  a  central  agency  as  that  above  described  is 
apparent  when  the  enormous  volume  of  administrative  work  wnth 
which  the  War  Department  is  charged  is  considered.  As  a  result  of 
such  an  orderly  disposition  of  the  business  of  the  department,  as  is 
contemplated  in  the  General  Regulations  of  the  Army,  it  is  possible 
for  the  Secretary  of  War  to  know  at  all  times  the  exact  stations  of  all 
officers  of  the  Army  and  the  nature  of  the  duty  upon  which  they  are 
employed.  He  is  also  able  to  call  for  the  entire  record  of  a  particular 
officer  from  the  date  of  his  original  appointment  to  the  Army,  and  in 
the  operation  of  the  existing  system  of  efficiency  reports,  which  are 
matters  of  record  in  The  Adjutant  General's  Office,  he  is  enabled  to 
call  for  the  record  showing  not  only  the  nature  of  the  duty  with  which 
a  particular  officer  is  charged,  but  the  manner  in  which  that  duty  has 
been  performed,  together  with  an  authoritative  estimate  of  the  capac- 
ity and  adaptability  of  the  officer  along  several  lines  of  professional 
activity. 

It  should  also  be  borne  in  mind  that  several  important  enactments 
of  Congress  require  that  the  methods  of  administration  above  indi- 
cated should  be  adhered  to  and  that  a  central  bureau  of  record  in 
respect  to  the  stations,  duties,  and  movements  of  commissioned  offi- 
cers of  the  Army  should  be  constantly  maintained.  Such  are  the  acts 
of  July  29,  1876  (19  Stat.  102),  and  March  2,  1901  (31  Stat.  902),  reg- 
ulating the  pay  status  of  officers  on  cumulative  leave ;  the  act  of  March 
2,  1901  (31  Stat.  903),  allowing  additional  pay  for  foreign  service; 
sections  1243  and  1244,  R.  S.,  and  the  acts  of  June  30,  1882  (22  Stat. 
117),  March  3,  1883  (22  Stat.  457),  February  16,  1891  (26  Stat.  763), 
etc.,  governing  compulsory  retirement,  retirement  for  age,  and  the 
retirement  of  officers  at  fixed  ages  or  after  specific  periods  of  service. 
C.  25730,  Oct.  SO,  1909. 

I  G  3  a  (3).  Held  that  the  reports  of  special  inspections  by  the 
Inspector  General's  Department  are  confidential  documents  and  that 
the  testimony  taken  is  taken  as  a  part  and  parcel  of  such  reports. 
There  is  no  law  or  regulation  which  requires  copies  of  the  evidence 
contained  in  these  confidential  reports  to  be  furnished  to  officers  whose 
conduct  has  been  under  investigation.     C.  23106,  Apr.  22,  1908. 

I  G  3  a  (4)  (a)  [1].  The  work  done  in  the  office  of  the  Judge 
Advocate  General'  and  for  which  the  Judge  Advocate  General 
is  responsible  consists  mainly  of  the  following  particulars :  Review- 

^  The  Judge  Advocate  General's  Department  now  consists  of  the  Judge  Advocate 
General  and  11  judge  advocates  (2  of  the  rank  of  colonel,  3  of  the  rank  of  lieutenant 
colonel,  and  6  of  the  rank  of  major),  and  of  as  many  acting  judge  advocates  (tempo- 
rarily detailed  with  the  rank  of  captain)  as  may  be  necessary  to  supplement  the  reg- 
ular officers  so  that  "each  geographical  department  or  tactical  division  of  troops" 
may  be  supplied  with  a  judge  advocate.  See  sec.  15  of  the  act  "to  increase  the  effi- 
ciency of  the  permanent  military  establishment,"  approved  Feb.  2,  1901,  published 
in  G.  O.  9,  A.  G.  O.,  1901. 

The  Secretary  of  War  (Stanton),  under  date  of  Nov.  13,  1862,  defined  the  duties  of 
a  judge  advocate  of  the  corps  of  judge  advocates  appointed  under  section  6  of  the  act 
of  July  17,  1862  (12  Stats.  598),  as  follows: 

"Your  duties  will  be — 

"1.  Those  pertaining  to  the  office  of  judge  advocate  under  the  general  military 
law  as  defined  in  the  standard  works  of  military  jurisprudence. 

"2.  To  advise  and  direct  all  provost  marshals  or  other  ministerial  officers,  civil  or 
military,  in  the  police  or  other  duties  that  may  be  directed  by  the  orders  of  the  War 


ARMY  I  G  3  a  (4)  (a)  [2].  89 

ing  and  making  reports  upon  the  proceedings  of  trials  by  court- 
martial  of  officers,  enlisted  men  ana  cadets,  and  the  proceedings  of 
courts  of  inquiry;  making  reports  upon  applications  for  pardon  or 
mitigation  01  sentence;  preparing  ana  revising  charges  and  specifica- 
tions prior  to  trial,  and  instructing  judge  advocates  in  regard  to  the 
conduct  of  prosecutions;  drafting  01  contracts,  bonds,  etc.,  as  also — 
for  execution  by  the  Secretary  of  War — of  deeds,  leases,  licenses 
grants  of  rights  of  way,  approvals  of  location  of  rights  of  way, 
approvals  of  plans  of  bridges  and  other  structures,  notices  to  alter 
bridges  as  obstructions  to  navigation,  etc.;  framing  of  bills,  forms 
of  procedure,  etc.;  preparing  of  opinions  upon  questions  relating  to 
the  appointment,  promotion,  rank,  pay,  allowances,  etc.,  of  ollicers, 
enlisted  men,  etc.,  and  to  their  amenability  to  military  jurisdiction  and 
disciphne;  upon  the  civil  rights,  liabilities  and  relations  of  military 
persons  and  the  exercise  of  the  civil  jurisdiction  over  them;  upon  the 
employment  of  the  Army  in  execution  of  the  laws;  upon  the  discharge 
of  minors,  deserters,  etc.,  on  habeas  corpus;  upon  the  administration 
of  military  commands,  the  care  and  government  of  military  reserva- 
tions, and  the  extent  of  the  United  States  and  State  jurisdictions  over 
such  reservations  or  other  lands  of  the  United  States;  upon  the  proper 
construction  of  appropriation  acts  and  other  statutes;  upon  the  inter- 
pretation and  effect  01  public  contracts  between  the  United  States  and 
individuals  or  corporations;  upon  the  validity  and  disposition  of  the 
varied  claims  against  the  United  States  presented  to  the  War  Depart- 
ment; upon  the  execution  of  public  works  under  appropriations  by 
Congress;  upon  obstructions  to  navigation  as  caused  by  bridges,  dams, 
locks,  piers,  etc. ;  upon  the  riparian  rights  of  the  United  States  and  of 
States  and  individuals  on  navigable  waters,  etc.;  and  the  furnishing 
to  other  departments  of  the  Government  of  statements  and  informa- 
tion apposite  to  claims  therein  pending,  and  to  individuals  of  copies 
of  the  records  of  their  trials  under  the  one  hundred  and  fourteenth 
article  of  war.     P.  37,  I4,  Nov.,  1889. 

I  G  3  a  (4)  (a)  [2].  The  reports  of  the  Judge  Advocate  General  to 
the  Secretary  of  War  have  always  been  regarded  as  confidential  com- 
munications and  it  has  not  been  the  practice  to  furnish  copies  of  them 
to  parties  outside  the  department  in  the  absence  of  special  authority 
from  the  Secretary  of  War.  P.  42,  452,  Sept.,  1890.  C.  663,  Dec, 
1894;  4013,  July, ^1898,  and  Mar.,  1899;  12660,  May  26,  1902. 

I  G  3  a  (4)  (a)  [3].  The  Judge  Advocate  General  has  no  adminis- 
trative jurisdiction  over  claims  of  parties  employed  to  report  the  pro- 
ceedings of  court-martials.     C.  6191,  Apr.,  1899. 

Department,  or  commanding  general,  or  by  the' Judge  Advocate  General  from  time 
to  time. 

"3.  Such  other  special  duties  in  regard  to  State  prisoners  and  measures  relating  to 
the  national  safety  as  may  be  assigned  you  by  the  department,  by  the  commanding 
officer,  or  by  the  Judge  Advocate  General. 

"4.  To  advise  the  War  Department,  through  the  Judge  Advocate  General,  upon 
all  matters  within  your  military  district  whenever  you  may  deem  the  action  of  the 
department  important  to  the  national  safety  and  the  enforcement  of  the  laws  and 
Constitution. 

"5,  To  apply  for  si)ecial  instructions  to  the  commanding  general  upon  such  mat- 
ters as  may  need  special  instruction  to  guide  your  action. 

"6,  To  report  to  the  commanding  general  all  disloyal  practices  in  your  district,  and 
when  prompt  action  is  required,  take  such  measures  [as  may  be  necessary]  through 
the  provost  marshal,  military  commandant,  or  other  authority  to  suppress  them." 


90  AKMY  I  G  3  a  (4)  (a)  [4]. 

I  G  3  a  (4)  (a)  [4].  It  is  contrary  to  the  practice  of  the  Judge  Advo- 
cate General's  Office  to  give,  upon  request  of  the  mihtary  officers  or 
the  officials  of  a  State,  opinions  on  questions  arising  in  the  military 
administration  of  the  State.  C.  685,  Nov.,  1894;  1^87,  Am.,  1895. 
Similarly  held  with  respect  to  requests  made  directly  to  the  Judge 
Advocate  General  for  opinions  upon  questions  relating  to  any  other 
internal  affairs  of  a  State.     C.  578,  Oct.,  1894.     {Also  see  militia.) 

I  G  3  b  (1).  A  line  officer  serving  by  detail  under  the  act  of  Feb- 
ruary 2,  1901,  in  a  supply  department,  the  officers  of  which  are 
required  to  be  bonded,  is  not  exempt  from  a  bond  simply  because 
his  office  in  such  department  vested  in  the  operation  of  a  detail. 
C.  22292,  Oct.  30,  1907;  10328,  Apr.  3,  1901;  10^79,  May  16,  1901, 
and  Oct.  30,  1907;  12318,  Mar.  27,  1902. 

I  G  3  b  (2)  (a)  [1].  The  cost  of  street-car  tickets  necessary  in  the 
delivery  of  commercial  messages  from  Alaska  telegraph  and  cable 
lines  should  be  paid,  in  the  case  of  commercial  messages,  out  of  the 
appropriation  for  the  operation  of  lines;  if  for  purely  military  mes- 
sages, tickets  should  be  furnished  by  the  Quartermaster's  Depart- 
ment.    G.  17047,  Oct.  22,  1904, 

I  G  3  b  (2)  (a)  [2]  [a].  Where  a  contract  was  made  for  the  trans- 
portation in  time  of  peace  of  troops  and  supplies  over  a  route,  a  part 
of  which  was  in  foreign  territory  held,  that  the  contractor  should 
obtain  written  consent  of  the  foreign  government  to  the  passage  of 
troops,  and  in  the  event  of  its  being  impossible  to  obtain  such  consent 
suggested  that  a  stipulation  be  inserted  requiring  the  contractor  in 
such  a  case  to  carry  the  troops  by  another  route  without  additional 
cost  to  the  United  States.     C.  14552,  Dec.  18,  1903. 

A  similar  stipulation  should  be  inserted  protecting  the  United 
States  against  customs  charges  on  goods  so  transported  through 
foreign  territory.     C.  14552,  Dec.  18,  1903,  and  Jan.  18,  1906. 

I  G  3  b  (2)  (a)  [2]  [6].  The  rule  of  international  law  applicable  to 
troops,  that  a  State  must  obtain  express  permission  before  its  troops 
can  pass  through  the  territory  of  another  State,  does  not  apply  in 
time  of  peace  to  the  transportation  of  Government  supplies  through 
foreign  territory  in  the  ordinary  course  of  foreign  commerce,  and 
duties  are  not,  as  a  rule,  levied  on  such  goods  while  in  course  of 
transportation.  C.  14552,  Dec,  1908,  and  Jan.,  1906.  Where  it  was 
proposed  to  ship  the  guns  and  horses  of  a  battery  of  Field  Artillery 
through  Canadian  territory,  the  guns  and  horses  being  in  charge  of 
the  necessary  number  of  soldiers  in  uniform,  but  otherwise  unarmed, 
held,  that  while  such  a  shipment  does  not  involve  the  passage  of  a 
fully  equipped  body  of  troops  through  the  territory  of  another 
nation,  it  sufficiently  approaches  it  to  render  it  of  doubtful  propriety 
to  attempt  such  shipment  in  advance  of  obtaining  the  consent  of  the 
foreign  nation  through  the  territory  of  which  the  shipment  is  to  be 
made.     C.  19990,  July,  1906. 

I G  3  b  (2)  {a)  [3]  [a].  Where  a  soldier  is  discharged  without  honor 
in  Alaska,  or  other  territorial  possession  of  the  United  States,  and  is 
not  entitled  to  travel  allowances,  held,  that  he  is  not  entitled  to  trans- 
portation in  kind  at  the  cost  of  the  United  States,  but  may  be  con- 
veyed to  the  United  States  on  a  Government  or  chartered  transport. 
C.  14937,  July  15,  1903. 

I  G  3  b  (2)  (a)  [3]  [I].  Held,  that  under  the  act  of  May  28,  1896 
(29  Stat.  189),  masters,  mates,  pilots,  and  engineers  on  vessels  that 


ARMY  I   G   3  b  (2)   (a)  [3]  [c],  91 

are  being  used  as  transports  by  contract,  if  killed  or  wounded  while 
performing  such  duties,  have  the  same  pensionable  status  as  soldiers 
and  sailoi-s  serving  in  the  Ai-my  and  Navy  of  the  United  States. 
C.  4331,  Jan.  11,  189S. 

I  G  3  b  (2)  (a)  [3]  [c].  On  the  question  whether  quartermasters  on 
board  United  States  transports  can  be  summoned  before  a  United 
States  coromissioner,  on  claims  for  pay  made  by  seamen,  remarJced, 
that  when  an  officer  of  the  Army  is  served  with  a  summons  from  a 
United  States  court  it  is  his  duty  to  respond  to  the  same;  that  this  is 
recognized  by  the  Army  Regulations  and  has  become  the  practice. 
Recormnended,  therefore,  that  this  course  be  pursued  in  all  cases 
instituted  in  the  United  States  courts  for  seaman's  wages,  but  the 
officer  whose  duty  it  becomes  to  make  response  to  the  summons 
should  forthwith  notify  the  proper  United  States  district  attorney 
of  the  institution  of  the  suit  and  request  him  to  defend  the  same,  and 
at  the  same  time  report  action  to  the  War  Department,  by  telegraph, 
if  necessary,  to  the  end  that  the  Attorney  General  may  be  requested 
to  give  the  district  attorney  any  required  instructions  in  the  matter. 
C.  6647,  Jan,,  1899. 

I  G  3  b  (2)  {a)  [3]  [d\.  An  officer  of  the  Army,  by  direction  of  the 
commanding  officer  of  a  transport,  raided  a  crap  game  that  was  being 
conducted  on  board  the  transport.  The  men  who  had  participated 
in  the  game  disappeared  and  he  was  not  able  to  identify  any  of  the 
participants.  He  found  $15.65  exposed.  He  took  possession  of  it, 
and  on  the  question  as  to  the  proj)er  disposition  of  the  money,  held 
that  tliis  officer  acquired  title  to  this  money  as  the  finder,  which  was 
valid  against  all  the  world  except  the  true  owner.  He  could  retain 
tlie  money  subject  to  claim  by  the  true  owner  or  he  could  turn  it  over 
to  the  transport  quartermaster.  The  latter,  upon  the  receipt  of  such 
money,  should  take  it  up  as  ''found  on  U.  S.  Army  transport,"  and 
turn  it  into  the  Treasury  as  miscellaneous  receipts.  C.  13965,  Jan. 
14,  1903. 

I  G  3  b  (2)  (a)  [3]  [e].  The  act  of  April  28,  1904  (33  Stat.  518), 
which  provides  for  the  transportation  "by  sea"  of  supphes  for  the 
Army  and  Navy  in  American  vessels  apphes  to  the  transportation  of 
military  suppfies  by  sea  in  the  Phifippine  Islands.     0.  16367,  Sept.  1, 

I  G  3  b  (2)  (a)  [3]  [f].  Held  under  the  act  of  June  12, 1906  (34  Stat. 
240) ,  which  provides  for  the  transportation  by  sea  of  the  f amihes  and 
employees  of  officers  and  men  of  the  Army,  Navy,  and  Marine  Corps, 
on  Army  transports,  that  a  person  who  has  not  yet  acquired  the  above 
status  is  not  entitled  to  transportation.     C.  20304,  Aug.  29,  1906. 

I  G  3  b  (2)  (a)  [3]  [g].  The  principle  of  exterritoriafity  is  one  which 
i.s  appfied  to  vessels  of  war  in  the  territorial  waters  of  a  foreign  power. 
It  is  by  no  means  well  established  that  public  vessels  as  distinguished 
from  public  armed  vessels  are  entitled  to  the  privilege,  and  the  rule 
itself  does  not  control  in  the  relations  between  a  consul  general  of  the 
United  States  (or  a  consul)  in  a  foreign  port  and  the  master  of  an 
Army  transport  in  the  employ  of  the  Quartermaster  General.  O. 
19051,  Jan.  12,  1905. 

I  G  3  b  (2)  (a)  [3]  [Ji].  Held  that  section  1765  R.  S.,  forbidding  any 
officer  in  the  public  service  or  any  other  person  whose  salary,  pay,  or 
emoluments  are  fixed  by  law  or  regulations,  to  receive  any  additional 
pay,  extra  allowances,  or  compensation  in  any  form  whatever  unless 


92  ARMY  I  G  3  b  (2)  (a)  [3]  [i], 

the  same  is  authorized  by  law,  has  no  appHcation  to  an  increase  in 
the  money  allowance  on  a  transport  due  to  the  excessive  cost  of  beef 
in  Alaska,  and  does  not  require  the  cost  of  subsistence  of  j)assengers 
on  a  transport  to  be  raised,  due  to  the  high  cost  of  supplies  in  Alaska. 
C.  17859,  Apr.  19,  1905. 

1  G  3  b  (2)  (a)  [3]  [%].  The  act  of  April  28,  1904,  provides  that 
''Vessels  of  the  United  States,  or  belonging  to  the  United  States,  and 
no  others,  shall  be  employed  in  the  transportation  by  sea  of  coal, 
provisions,  fodder,  or  supplies  of  any  description,  purchased  pursuant 
to  law,  for  the  use  of  the  Army  or  Navy  unless  the  President  shall  find 
that  the  rates  of  freight  charges  by  said  vessels  are  excessive  and 
unreasonable,  in  wliich  case  contracts  shall  be  made  under  the  law 
as  it  now  exists :  Provided,  That  no  greater  charges  be  made  by  such 
vessels  for  transportation  of  articles  for  the  use  of  the  said  Army  and 
Navy  than  are  made  by  such  vessels  for  transportation  of  like  goods 
for  private  parties  or  companies."  (33  Stat.  518.)  Held  that  this 
enactment  applies  to  a  case  where  there  are  ships  of  American  register 
which  are  engaged  in  carrying  trade.  If  there  are  none,  there  is 
notliing  to  which  the  provisions  of  the  statute  can  apply,  and  the  trans- 

Eortation  services  would  then  be  procured  in  the  method  prescribed 
y  existing  law.  Held  further  that  the  same  case  would  exist  at  a 
port  where  there  are  vessels  of  American  register,  but  their  owners 
decline  to  allow  them  to  engage  in  the  carr3ring  trade.  Where  there 
are  vessels  of  American  register,  therefore,  it  would  seem  to  be  neces- 
sary, in  order  to  give  operation  to  the  statute,  to  give  them  an  opj^or- 
tunity  to  engage  in  the  carrying  trade  by  advertisement  for  bids. 
If  bids  are  received,  it  can  easily  be  ascertained  whether  they  are 
'*  excessive  and  unreasonable  or  not,"  and  their  character  in  that 
regard  should  be  reported  to  the  department,  with  a  view  to  the  sub- 
mission of  the  case  to  the  President  for  an  exercise  of  the  discretion 
vested  in  him  by  the  act  of  April  28,  1904.  C.  20928,  Jan.  15,  1907. 
Held  further  that  if  no  bids  were  received  from  owners  of  American 
ships,  recourse  could  be  had  to  foreign  ships.  In  the  same  way  if  a 
ship  having  an  American  register  bids  for  one  trip  in  six  months,  and 
the  Government  is  obliged  to  ship  monthly,  or  more  frequently,  then 
the  American  bid,  if  reasonable,  would  be  accepted  as  to  the  one  trip, 
and  foreign  bids  would  be  received  as  to  the  other  shipments,  as  the 
bid  for  one  trip  amounts,  in  fact,  to  notice  that  no  vessels  of  American 
register  are  offered  for  the  balance  of  the  service.  C.  20928,  Jan.  19, 
1907,  Aug.  6,  1907. 

I  G  3  b  (2)  (a)  [4].  HeM  that  when  an  officer  in  the  Philippine 
Islands  is  ordered  to  travel  in  the  military  service,  and  the  only  trans- 
portation along  a  portion  of  the  journey  is  by  automobile,  a  trans- 
portation request  may  be  furnished  by  the  Quartermaster's  Depart- 
ment, good  on  the  automobile  line.^     C.  257^7,  Mar.  16,  1911. 

I  G  3  b  (2)  (b).  On  a  qi:estion  as  to  whether  a  quartermaster 
could  buy  a  horse  for  the  Government  from  an  officer  of  the  Army, 
held  that  unless  such  purchase  received  the  approval  of  the  Secretary 
of  War  it  would  not  be  valid.^     C.  15996,  Mar.  7,  1904. 

>  See  Mms.  Dec.  of  the  Comptroller  of  the  Treasury,  dated  Apr.  13,  1911,  approving 
this  opinion. 

2  See  G.  O.  No.  54,  1910,  War  Department,  p.  18. 


ARMY   I  G  3  b  (2)   (c),  93 

I  G  3  b  (2)  (c) .  The  sale  of  stores  to  officers  on  the  retired  fist  is  now 
aiitlioiized  by  Executive  regulation  in  some  cases — notably  that  of 
subsistence  stores.  As  such  stores,  with  the  exception  of  fuel,  are 
sold  at  the  cost  price,  and  as  such  sales  are  authoiized  to  be  made  to 
"officers  of  the  Army"  and  are  not  restricted,  by  statute,  to  officers 
on  the  active  list,  there  is  no  legal  objection  to  the  sale  of  forage  to 
retired  officers  at  cost  price,  under  such  restrictions,  as  to  amount 
and  conditions,  as  may  be  imposed  by  the  Secretary  of  War.  For 
that  reason  it  is  unnecessary  to  ask  le^slative  sanction  for  the  sale 
of  forage  to  retired  officers,  a  transaction  which  stands  on  precisely 
the  same  footing,  in  respect  to  legality,  as  the  sale  of  subsistence  to 
the  same  class  of  officers.*     C.  19126,  Apr.  12,  1906. 

I  G  3  b  (3)  (a)  [1].  Where  subsistence  stores  were  sold  by  a  post 
commissary  of  subsistence  to  a  mess  of  three  officers  of  the  post,  and 
charged  to  the  mess  as  such,  held,  that  such  mess  was  not  in  the  na- 
ture  of  a  commercial  partnersliip  in  which  each  member  was  bound 
lor  the  joint  indebtedness,  but  was  simply  an  association,  for  pur- 
j)()ses  of  convenience  and  economy,  of  three  individuals,  each  of 
whom  was  bound  to  the  United  States  only  for  his  proportion — one- 
third — of  the  account.  And  Jield  that  a  member  who  had  paid  his 
])roportion  to  one  of  the  other  membei-s  who  acted  as  caterer  but  who 
liad  deceased  without  pajdng  over  this  amount  to  the  commissary, 
remained  liable  for  sucn  proportion  to  the  United  States.  R.  41, 
ir)5.  Mar.,  1878. 

I  G  3  b  (3)  (a)  [2].  The  issue  of  stores  for  food  beyond  amounts 
lixed  in  established  rations,  held  not  lawful.     C.  6728,  July  21,  1899. 

I  G  3  b  (3)  {a)  [3].  Where  employees  of  the  Alaskan  telegraph  lines, 
receiving  over  $60  per  month,  were  issued  rations  because  no  other 
method  of  subsistence  was  practicable,  such  issue  being  incorporated 
in  their  contracts  of  employment,  held  to  be  a  waiver  of  the  require- 
ments of  par.  1219,  Army  Regulations,  1904  ed.  (1224  ed.  1910), 
which  it  was  lawful  for  the  Secretary  of  War  to  make.  C.  19366,  Mar. 
13,  1906  and  June  22, 1907. 

I  G  3  b  (3)  (a)  [4].  Where  other  subsistence  can  not  be  obtained  at 
})laces  in  Alaska,  held  that  female  nurses,  and  enlisted  patients  in 
hospital  may  be  issued  rations  in  kind.     C.  20184,  Aug.  6,  1906. 

I  G  3  b  (4)  (a).  Held  that  section  1167,  R.  S.,  does  not  direct  or 
authorize  the  Chief  of  Ordnance,  subject  to  the  approval  of  the  Sec- 
retary of  War,  to  draw  up  and  enforce  in  his  department  a  system  of 
rules  and  regulations  for  the  inspection  of  ordnance  property  with  a 
view  to  its  condemnation  and  sale  or  destruction.     U.  63,  July,  1894.. 

I  G  3  b  (4)  (6) .  A  line  officer,  detailed  for  service  in  the  Ordnance 
Department,  under  the  act  of  June  25,  1906  (34  Stat.  455),  is  re- 
quired to  take  the  examination  for  promotion  in  the  line  which  is 
])rovided  for  in  section  3  of  the  act  of  October  1,  1890  (26  Stat.  562). 
In  the  application  the  principle  of  equivalency,  as  embodied  in  Gen- 
eral Order  220,  War  Department,  of  October  31,  1907,  held  that  he 
may  lawfully  be  excused  from  examination  in  those  branches  in 
which  he  has  passed  a  successful  examination  for  detail  in  the  Ord- 
nance Department.     C.  22^32,  Dec.  2,  1907. 

I  G  3  b  (4)  (c).  The  verification  of  capacity  and  fitness  for  a  second 
detail  in  the  Ordnance  Department  is,  in  the  act  of  June  25,  1906/ 

1  See  G.  O.  141,  War  Department,  1906. 


94  AKMY  I  G   3  b  (4)   (d). 

made  to  depend  upon  the  recommendation  of  a  board  of  ordnance 
officers,  but  whatever  may  be  the  scope  and  character  of  that  inquiry, 
it  is  not  an  ''examination"  in  the  sense  in  which  that  term  is  used  in 
the  acts  regulating  the  advancement  of  officers  in  the  mihtary  estab- 
Hshment.  Held,  that  the  operation  of  General  Order  220,  War 
Department,  1907,  is  not  such  as  to  exempt  an  ordnance  officer  from 
the  operation  of  existing  orders  regulating  the  examination  for  pro- 
motion of  officers  in  his  branch  of  the  line  of  the  Army.  C.  22/^32, 
Dec.  2,  1907. 

I  G  3  b  (4)  {d).  Held  that  section  1765,  K.  S.,  does  not  prohibit  the 
payment  of  compensation  to  an  ordnance  sergeant  for  work  as  'Hime 
keeper"  under  the  United  States  Engineer  Department,  such  employ- 
ment having  no  affinity  or  connection  with  the  line  of  his  official  duty  * 
as  ordnance  sergeant  and  not  interfering  in  any  way  with  the  same. 
C.  2570,  Sept.,  1896. 

I  G  3  c  (1).  The  duties  of  the  Engineer  Department  in  respect  to 
the  construction,  maintenance,  and  operation  of  canals  and  works 
of  river  and  harbor  improvement,  together  with  their  work  in  con- 
nection with  fortifications  and  seacoast  defenses,  are  carried  on 
under  the  direction  of  the  Secretary  of  War  and  the  Chief  of  Engi- 
neers, whose  authority  in  respect  thereto  is  measured  by  the  enact- 
ments of  Congress  which  prescribe  their  duties  and  resj)onsibilities 
in  that  regard.  It  is  only  when  the  station  of  an  officer  is  changed, 
or  a  leave  of  absence  granted,  or  a  question  of  retirement  is  pre- 
sented, that  The  Adjutant  General  becomes  charged  with  the  per- 
formance of  certain  duties  respecting  the  record  sides  of  the  several 
acts  noted.2     G.  25730,  Oct.  30,  1909. 

I  G  3  d  (1).  Medical  practice  by  officers  of  the  Medical  Corps 
of  the  Army,  outside  of  military  posts,  should  conform  to  the  laws  of 
the  State,  but  this  is  subject  to  the  quafifi cation  that  medical  treat- 
ment of  members  of  the  Army  on  the  active  list,  being  an  instru- 
mentality of  the  United  States  Government,  can  not  be  controlled  by 
State  legislation,  and  may  be  furnished  wherever  the  soldier  may 
be  stationed.  Enlisted  men  on  the  retired  fist  are  allowed  medical 
attendance  at  the  stations  of  medical  officers  only.  Medical  officers 
on  duty  are  required  to  attend  officers  and  enlisted  men  and  when 
practicable  their  famifies.  Medical  officers  in  their  attendance  upon 
the  families  of  officers  and  enfisted  men,  outside  of  military  posts, 
would  have  to  comply  with  the  State  laws;  otherwise  such  attend- 
ance would  not  be  ''practicable."  So  in  the  treatment  of  civifians 
not  living  on  military  reservations,  the  laws  of  the  State  would  have 
to  be  compfied  with.     C.  3270,  June,  1899;  20395,  Sept.  18,  1906. 

I  G  3  d  (2)  {a).  Held,  in  respect  to  the  jurisdiction  vested  in  the 
board  of  review  by  the  act  of  April  23,  1908  (35  Stat.  66),  that 
as  the  law  expressly  provides  that  ''a  second  examination  shall  not 
be  allowed,"  it  would  seem  that  this  language  would  negative  the 
idea  that  a  board  of  review  could  conduct  an  independent  inquiry 
into  any  views  or  aspects  of  the  fitness  of  the  officer  for  advance- 
ment. Its  jurisdiction  would  seem  to  be  restricted  by  the  statute 
to  the  record  of  the  origiual  examining  board,  including  all  the 

1  See  Converse  v.  U.  S.,  21  Howard,  463;  U.  S.  v.  Brindle,  110  U.  S.,  688;  Meigs  v 
U.  S.,  19  Ct.  Cls.,  497. 

2  Under  the  act  of  Feb.  2,  1901  (31  Stat.  754),  the  enUsted  force  of  the  Corps  of 
Engineers,  and  the  Engineer  officers  on  duty  with  them  belong  to  the  line  of  the  Army. 


ARMY   I   G   3   d  (2)   (b).  95 

testimony,  documentary  and  otherwise,  wliich  was  submitted  to 
that  board  for  consideration  in  connection  with  the  fitness  of  the 
officer  for  advancement.  Any  taking  of  new  testimony  woukl,  in 
the  opuiion  of  the  office,  be  in  the  nature  of  a  second  examination 
and,  as  such,  would  be  proliibited  by  the  clause  of  legislation  above 
cited.     C.  23135  June  12,  1908. 

I  G  3  d  (2)  (6).  The  act  of  April  23,  1908  (35  Stat.  66),  makes 
specific  provision  for  the  review  of  the  proceedings  of  boards  charged 
with  the  original  examination  of  officers  of  the  Medical  Corps  for 
promotion.  The  Secretary  of  War  is  charged  with  the  duty  of 
appointing  the  board,  but  is  not  required,  either  expressly  or  bv 
necessary  implication,  to  approve  or  disapprove  its  findings,  which 
become  operative  from  the  date  of  pubfication. 

The  action  of  the  department  upon  the  findings  of  the  board  of 
review  is  ministerial  in  character,  and  consists  in  executing  the 
cfischarge  of  the  officer  and  in  the  advancement  of  such  oflicers  of 
inferior  rank  as  become  entitled  to  promotion  in  consequence  of 
the  fincUngs,  and  in  announcmg  the  result  of  the  action  to  the  Army 
in  the  usual  manner.     C,  23135,  June  24,  1908. 

I  G  3  d  (3)  (a) .  The  act  reorganizing  the  Medical  Corps  provides 
tliat  "In  emergencies  the  Secretary  of  War  may  order  oflicers  of 
the  Medical  Reserve  Corps  to  active  duty"  (Sec.  8,  act  of  Apr.  23, 
1908—35  Stat.,  68). 

Held,  that  the  term  "emergency"  is  nowhere  made  the  subject 
of  rigorous  and  exact  definition.  Webster  defines  the  term  as: 
''An  unforeseen  occasion  or  combination  of  circumstances  which 
caUs  for  immediate  action  or  remedy;  pressing  necessity;  exigency." 
The  term  is  defined  in  the  Century  Dictionary  as:  "A  sudden  or 
unexpected  happening;  an  unforeseen  occurrence  or  condition." 
In  some  acts  or  legislation  affecting  the  executive  departments  and 
the  mifitary  establishment  the  term  "extraordinary  emergency"  is 
used,  without  adding  to  the  force  of  the  term  or  extending  its  legal 
meaning.  Where  a  contract  surgeon  is  the  only  medical  officer  at 
a  post  or  station  and  a  vacancy  is  caused,  due  to  his  death,  resig- 
nation or  discharge  from  the  further  operation  of  his  contract  of 
employment,  it  would  seem  that  an  emergency  has  arisen,  within 
the  meaning  of  the  clause  above  cited,  of  such  a  character  as  to 
warrant  an  exercise  of  the  discretionary  judgment  which  is  provided 
for  in  the  statute;  and  this  would  be  equally  true  if  the  vacancy 
were  caused  by  the  discharge  of  the  contract  surgeon  serving  at  a 
place  where  the  vacancy  occurred,  and  where  it  is  proposed  to  order 
an  officer  of  the  Medical  Reserve  Corps  into  active  service.  Such 
a  view  would  also  be  properly  taken  as  to  the  operation  of  the  statute 
in  a  case  where  the  services  of  a  contract  surgeon  at  a  post  or  hos- 
pital are  necessary,  even  if  there  be  other  medical  officers  at  such 
post  or  hospital;  although  such  an  emergency  would  be  one  which 
should  be  distinguished  in  some  of  its  aspects  from  that  first  above 
described.  In  any^  event,  the  law  charges  the  Surgeon  General  with 
the  duty  of  determining  whether  an  emergency  exists,  and  his  conclu- 
sion in  that  regard,  when  approved  by  the  Secretary  of  War,  will 
be  decisive  in  the  operation  of  the  statute.^     C.  23135,  June  26,  1908. 

'  Sheean  v.  City  of  New  York  (75  N.  Y.  Supp.,  802-803);  People  v.  Lee  Wuli  (71 
Cal.,  80-89  Pac.  Rep.,  851). 


96  AEMY   I   G    3   d  (3)   (&). 

I  G  3  d  (3)  (b).  Held,  in  the  operation  of  section  7  of  the  act  of 
April  23,  1908  (35  Stat.,  66),  that  commissions  should  issue  to 
appointees  in  the  Medical  Reserve  Corps,  they  being  so  drawn  as 
to  evidence  an  exercise  of  the  appointing  power  and,  as  the  Medical 
Reserve  Corps  is  a  part  of  the  mihtary  estabUshment,  the  commission 
should,  as  far  as  possible,  be  similar  in  form  to  those  issued  to  officers 
of  the  Medical  Corps,  subject,  of  course,  to  such  changes  as  are 
required  to  give  effect  to  that  clause  of  the  statute  which  restricts 
the  operation  of  the  commission  to  the  period  during  which  the 
officer  may  be  employed  in  the  active  service  of  the  United  States. 
At  all  other  times  these  commissions  are  dormant  and  vest  no 
authority  in  and  impose  no  duties  upon  the  persons  who  hold  them. 
C.  23135,  May  8,  1908. 

I G  3  d  (3)  (c)  [1].  The  object  of  the  creation  of  the  Medical  Reserve 
Corps  is  stated  to  be  "  for  the  purpose  of  securing  a  reserve  corps  of  med- 
ical officers  available  for  military  service."  Under  this  statement  of 
the  intent  of  the  law  it  would  seem  clear  that  the  idea  is  to  secure  the 
cooperation  and  general  assistance,  moral  if  not  actual,  of  proper 
graduates  in  medicine.  It  would  seena  proper,  therefore,  to  take 
the  view  that  all  privileges,  not  involving  what  I  may  call  official 
rights,  should  be  extended  to  officers  of  the  Medical  Reserve  Corps 
if  the  Government  is  to  be  consistent  in  the  matter,  regardless  of 
whether  they  are  actually  in  active  service  or  not.  G.  23135, 
Aug.  1, 1908.  As  a  matter  of  law,  clearly  only  those  in  active  service 
are  entitled  to  the  privilege  of  officers  of  the  Army,  but  under  the 
general  principle  involved,  the  entire  Medical  Reserve  Corps  should 
receive  all  consideration  and  privileges  which  their  interest  in  the 
service  warrants,  so  long  as  those  privileges  are  not  in  conffict  with 
existing  law.     C.  23135,  Aug.  1,  1908. 

I  G  3  d  (3)  (c)  [2].  The  mere  acceptance  of  office  in  the  Medical 
Reserve  Corps,  not  coupled  with  an  assignment  to  duty,  creates  no 
rights  in  respect  to  pay  or  allowances  or  the  indulgence  of  leave  of 
absence.  Should  an  officer  be  assigned  to  duty  under  his  appoint- 
ment, he  would  be  placed  in  the  same  position  in  respect  to  leaves 
of  absence  as  other  commissioned  officers  of  the  Army,  and  the 
statutes  regulating  the  pay  status  of  officers  on  cumulative  leave 
would  apply  to  him  in  the  same  way  that  they  apply  to  other  com- 
missionecf  officers  of  the  Army.     C.  23135,  June  29,  1908. 

I  G  3  d  (3)  (c)  [3].  Held  that  the  President  can  relieve  an  officer  of 
the  Medical  Reserve  Corps  from  duty  under  an  assignment  when  his 
services  are  no  longer  necessary,  and  thus  render  nis  appointment 
dormant.  He  may  also  honorably  discharge  an  officer  of  the  Medical 
Reserve  Corps  when  his  services  are  no  longer  needed.  Officers  of 
this  corps  are  subject  to  the  Articles  of  War  and  the  laws,  regulations, 
and  orders  for  the  government  of  the  Regular  Army  during  the  period 
of  their  service;  and  when  an  officer  of  the  Medical  Reserve  Corps 
commits  a  criminal  offense  he  is  subject  to  the  same  disciplinary  con- 
trol that  is  appfied  to  other  officers  of  the  Army.  C.  23135,  Dec. 
19,  1908. 

I  G  3  d  (3)  (c)  [4].  Section  7  of  the  act  of  Aprd  23,  1908  (35  Stat. 
68),  provides  for  the  securing  of  a  reserve  corps  of  medical  officers  to 
be  known  as  the  Medical  Reserve  Corps,  the  members  of  which  shall 
be  commissioned,  and  when  called  into  active  duty,  shall  have  all 
the  authority,  rights,  and  privileges  of  commissioned  officers  of  like 


ABMY  I  G  3  d  (4)  (a).  97 

grade  in  the  Medical  Corps  of  the  United  States  Army,  except  pro- 
motion, during  the  period  of  such  active  service.  Held  that  officers 
of  the  Medical  Keserve  Corps  while  on  active  service  are  entitled  to 
transportation,  etc.,  of  private  horses  when  their  duty  req^uires  them 
to  be  mounted,  in  accordance  with  the  law  and  regulations  which 
govern  the  furnishing  of  transportation  under  such  circumstances  to 
officers  of  the  permanent  establishment.     C.  23135,  Dec.  16,  1911. 

I  G  3  d  (4)  (a).  The  clause  of  section  18  of  the  act  of  February  2, 
1901  (31  Stat.  753),  which  authorizes  the  employment  of  contract 
surgeons,  is  not  repealed,  either  expressly  or  by  necessary  implica- 
tion, in  the  act  of  April  23,  1908  (35  Stat.  67),  which,  save  that  it 
confers  eligibility  for  their  appointment  to  the  Medical  Reserve 
Corps,  is  suent  in  respect  to  the  status  or  employment  of  contract 
surgeons.  They  formed  no  part  of  the  Medical  Department  in  the 
act  of  February  2,  1901,  ana  they  form  no  part  of  tne  same  depart- 
ment as  reconstituted  in  the  act  of  April  23,  1908.  C.  23135,  May 
21,  1908;  10566,  Nov.  5,  1909. 

I  G  3  d  (4)  (6).  As  the  services  of  acting  assistant  or  contract 
surgeons  are  obtained  by  contract  and  not  in  the  operation  of  the 
appointing  power,  field,  that  in  view  of  the  contractual  character  of 
their  employment,  an  oath  of  office  is  not  required  as  a  condition  pre- 
cedent to  the  receipt  of  compensation  under  their  contractual  under- 
taking with  the  United  States.     C.  23135,  Dec.  17,  1908. 

1  G  3  d  (4)  (c).  A  ''contract"  or  ''acting  assistant"  surgeon  is  not 
a  mihtary  officer  and  has  no  military  rank.^  G.  10566,  Nov.  5,  1909. 
He  is  amenable  to  the  military  jurisdiction  when  employed  with  the 
Army  in  the  field  in  time  of  war  under  the  sixty-third  article  of  war, 
but  is  in  fact  no  part  of  the  military  establishment,  being  merely  a  civil- 
ian under  employment  by  the  United  States  by  contract  for  his  personal 
services  as  a  medical  attendant  to  the  troops.  R.  9, 678,  Oct.,  1 864;  ^^, 
18,  Sept.,  1867;  28,  239,  Nov.,  1868;  34, 207,  Apr.,  1873; 49,  246,  July, 
1885;  52,  304,  June,  1887;  P.  52,  404,  Mar.,  1892;  53, 167,  Apr.  1892; 
65,  226,  June,  1894;  C.  11128,  Mar.,  1895.  Held  that  he  should  take 
the  oath  prescribed  in  section  1757  R.  S.  O.  23135,  Dec.  17,  1908. 
Held  that  he  has  the  privilege  of  buying  fuel  and  forage  from  the 
quartermaster's  department,  as  provided  by  the  Army  Regulations, 
as  this  privilege  is  not  an  allowance  or  an  emolument.  C.  4^88, 
Sept.  18, 1898;  12965,  June  2,  1902.  Held  that  he  may  purchase  nec- 
essary articles  of  equipment  for  field  service.  C.  20861 ,  Jan.  3,  1907. 
Held  that  he  may  sign  surgeons'  certificates  of  disability  (C.  15308, 
Sept.  26,  1903)  and  may  prepare  and  sign  final  statements  {C.  11720, 
Dec.  17,  1901).  A  contract  surgeon  may  act  as  post  treasurer.  C. 
8974,  Sept.  19,  1900.  Held  that  a  contract  surgeon  has  the  power  to 
effectually  supervise  his  subordinates  in  a  field  hospital,  as  well  as 
in  a  post  hospital.^  C.  16600,  July  13,  1904-  Held  that  he  is  not 
entitled  to  admission  to  the  Government  Hospital  for  the  Insane. 
C.  17217,  Sept.  19,  1906.  Held  that  he  is  not  eligible  for  retirement.^ 
C.  16672,  June  28, 1909.     Held  that  a  contract  surgeon  can  not  legally 

^26  Ct.  Cls.  302,  306;  Dig.  Dec.  Comp.,  vol.  Ill,  Sees.  929,  932;  IV.  idem.  629,  631; 
27  Op.  Atty.  Gen.  468. 

2  27  0p.  Atty.  Gen.  468. 

31106°— 12 7 


98  ARMY  I   G  3   d  (4)   (d), 

be  compelled  to  remain  in  the  service  against  his  consent  after  the 
expiration  of  the  term  of  his  contract.     C.  8618,  July,  1900. 

I  G  3  d  (4)  {d).  Section  18  of  the  general  reorganization  act  of 
February  2,  1901  (31  Stat.  753),  authorizes  the  employment  of  con- 
tract dental  surgeons.  Held  that  they  are  not  commissioned  officers 
and  are  not  a  part  of  the  Army.  They  are  civilians  and  their  services 
are  obtained  in  the  operation  of  contracts  of  employment.  C.  10566 , 
Nov.  5,  1909. 

I  G  3  d  (5)  {a).  The  strength  of  the  Hospital  Corps  was  not 
increased  in  the  operation  of  the  act  of  May  11,  1908  (35  Stat.  Ill), 
and  its  strength  can  only  be  increased  by  an  act  of  affirmative  dis- 
cretion on  the  part  of  the  Secretary  of  War  under  the  authority  to 
that  end  which  is  vested  in  him  by  the  act  of  March  1,  1887  (24  Stat. 
435).     G.  2S288,  Apr.  15,  1909. 

I  G  3  d  (5)  (b) .  Sergeants  of  the  first  class  of  the  Hospital  Corps  can 
only  be  detailed  as  mess  sergeants  under  the  special  authority  of  the 
Surgeon  General.     C.  23695,  Oct.  12,  1909. 

I G  3  d  (6)  (a)  [1].  Held,  that  the  Nurse  Corps  (female)  is  an  integral 
part  of  the  United  States  Army,  notwithstanding  the  fact  that  the 
members  thereof  are  neither  commissioned  as  officers  nor  enlisted  for 
a  term  of  years.  Held,  therefore,  for  the  purposes  of  civil-service 
administration  that  the  Army  Nurse  Corps  is  in  the  military  service, 
as  distinguished  from  the  executive  civil  service,  and  consequently 
is  not  subject  to  the  civil-service  acts  and  rules  or  required  to  be  classi- 
fied thereunder.     C.  10566,  Oct.  18,  1909. 

I  G  3  d  (6)  (a)  [2].  The  30  days'  leave  of  absence  to  female  nurses, 
provided  for  in  section  19,  act  of  February  2,  1901  (31  Stat.  751), 
field,  to  be  not  cumulative.     C.  10160,  May  29,  1902. 

I  G  3  d  (7)  (a)  [1].  Under  the  present  regulations  for  the  govern- 
ment of  the  Army  and  Navy  General  Hospital  at  Hot  Springs,  Ark., 
civil  employees  of  the  Government  are  not  eligible  to  admission. 
P.  58,  452,  Mar.,  1893. 

I  G  3  d  (7)  (a)  [2].  Held,  that  under  the  regulations  for  the  govern- 
ment of  the  General  Hospital  at  Hot  Springs,  Ark.,  (G.  O.  60,  A.  G.  O., 
1892,  as  amended  by  G.  O.  40,  A.  G.  O.,  1893),  discharged  enlisted 
men  of  the  Navy  are  not  entitled  during  the  three  months  within 
which  they  may  reenlist  under  the  act  of  February  8,  1889  (25  Stat. 
657),  to  admission  to  the  hospital.     C.  2069,  Feb.,  1896. 

I  G  3  d  (8)  {a).  Held  that  officers'  servants,  being  a  part  of  the  offi- 
cer's household,  were  entitled  equitably  to  admission  to  post  hospitals, 
and  should  not  be  regarded  as  a  class  subject  to  par.  1630  Army  Regu- 
lations of  1889,  relating  to  the  admission  to  such  hospitals  of  ^^ civilians 
not  in  public  service."  They  should  be  treated  with  the  same  liber- 
ality in  this  respect  as  is  shown  in  the  furnishing  of  subsistence  sup- 
Elies,  which  an  officer  is  entitled  to  purchase  not  only  for  his  own  use 
ut  for  that  of  his  household.^     P.  37,  A60,  Jan.,  1890. 

I G  3  d  (8)  (6).  In  the  case  of  the  death  of  a  soldier  at  a  post  hospital 
who  leaves  an  estate  without  heirs  and  makes  no  disposition  of  the 
estate  by  wiU,  lield  that  the  estate  escheats  to  the  United  States. 
Held  further  that  the  post  surgeon  should  proceed  as  indicated  in  the 
Army  Regulations  and  deposit  the  money  (as  that  was  the  estate  in 

^  A  stricter  view  is  expressed  in  Circ.  No.  1,  A.  G.  0.,  1890. 


ARMY  I  G  3  d  (8)  (c)  [l].  99 

this  case)  with  the  paymaster  to  the  credit  of  the  United  States,  taking 
receipts  in  diiphcate,  etc.     C.  20272,  Aug.  24,  1906. 

I  G  3  d  (S)  (c)  [1].  The  act  of  March  2,  1901  (31  Stat.  895,  905), 
appropriated  money  for  a  special  diet  for  enlisted  patients  in  Army 
hospitals  who  were  too  sick  to  be  subsisted  on  the  Army  rations.  Held 
that  a  reasoimble  interpretation  of  this  act  would  permit  the  purchase 
for  the  use  of  the  sick  as  articles  of  special  diet,  ginger  ale  and  a  charged 
water  (Tansan).     C.  12094,  Feb.  27,  1902. 

I  G  3  d  (8)  (d).  The  act  of  June  12,  1906  (34  Stat.  256),  provides 
that  '^hereafter  aU  moneys  arising  from  dispositions  of  serviceable 
medical  and  hospital  supplies  authorized  by  law  and  regulation  shall 
constitute  one  fund  on  the  books  of  the  Treasury  Department,  which 
shall  be  avaihible  to  replace  medical  and  hospital  supplies  throughout 
the  fiscal  year  in  which  the  dispositions  were  effected  and  throughout 
the  following  fiscal  year."  Held  that  funds  paid  to  the  Medical  De- 
}>artment  to  reimburse  it  for  the  cost  of  a  safe  are  available  to  replace 
medical  and  hospital  supplies  in  the  manner  described  in  the  above 
cited  act.     C.  20993,  Jan.  26,  1907. 

II  A.  Under  Article  IV,  section  4,  of  the  Constitution,  the  Army 
may  be  employed  to  protect  a  State  from  'invasion"  or  '^domestic 
violence,"  only  by  the  order  of  the  President,  made  "on  application 
of  the  legislature,  or  of  the  executive  when  the  legislature  can  not  be 
convened."  ^  A  militaiy  commander,  of  whatever  rank  or  command, 
can  have  no  authority,  except  by  the  order  thus  made  of  the  President 
to  furnish  troops  to  a  governor  or  other  functionary  of  a  State,  to  aid 
him  in  making  arrests  or  establishing  law  and  order.  R.  30, 125,  Mar., 
1870;  41,  206,  Apr.,  1878;  C.  2063,  Feb.  11, 1896;  3119  {Alaska)  Apr. 
21,  May  18,  1909,  Aug.  19  and  Sept.  7,  1910;  8200,  May  10,  1900; 
8570,  Sept.  10,  1902;  17164,  Nov.  15,  1904;  1^341,  Mar.  10,  1906; 
20104,  July  20,  1906;  22360,  Nov.  14,  1907. 

II  A  1.  The  proviso  of  the  Constitution — 'Vhen  the  legislature 
can  not  be  convened,"  may  be  said  to  mean  when  it  is  not  in  session, 
or  can  not,  by  the  State  law,  be  assembled  forthwith  or  in  time  to 
provide  for  the  emergency.  R.  30,  172,  Mar.,  1870;  C.  5557,  Bee.  20, 
1898;  8383,  May  26,  1900;  22474,  Dec.  10,  1907, 

II  B.  Under  act  of  May  17,  1884  (23  Stat.  24),  a  civil  government, 
consisting  of  an  executive  and  a  judicial  branch,  was  established  for 
Alaska,  and  the  general  laws  of  Oregon  were  made  the  laws  of  the 
Territoiy.  On  the  question  whether  the  Army  could  be  used  to  en- 
force the  law  in  that  Territory,  held,  that  if  the  United  States  marshal 
should  ask  for  military  assistance  to  enable  him  to  execute  a  process 
which  he  is  unlawfully  prevented  from  executing,  it  could  legally  be 
given  him  by  the  President.  The  act  of  June  18,  1878  (20  Stat.  152), 
does  not  preclude  such  action,  because,  as  held  by  the  United  States 
Supreme  Court,  the  President  has  by  virtue  oi  his  constitutional 
powers  to  take  care  that  the  laws  are  faithfully  executed  and  as 
commander  in  chief  of  the  Army  the  power  to  use  force  when  neces- 
sary in  the  execution  of  the  laws  of  the  United  States.^  C.  3119,  Apr., 
1897.     The  use  of  troops  in  Alaska  continues  to  be  lawful  in  the  sup- 

^For  a  full  discussion  of  this  subject  and  citation  of  authorities,  see  "The  Use  of  the 
Army  in  Aid  of  the  Civil  Power,"  by  G.  N.  Lieber,  Judge  Advocate  General,  U.  S. 
Army,  War  Dept.  Doc.  No.  63. 

'^See  In  re  Neagle,  135  U.  S.,  1,  and  authorities  cited. 


100  ARMY   II   C. 

port  of  civil  order,  as  the  Territory  is  expressly  exempted  from  the 
operation  of  the  act  of  June  18,  1878  (20  Stat.  152),  by  a  requirement 
of  the  act  of  March  3,  1899  (30  Stat.  1324).  C.  3388,  July  26,  1897; 
3119,  Apr.  21,  May  18, 1909,  Aug.  19  and  Sept.  10,  1910. 

II  C.  There  is  not  in  the  treaties  with  the  Indians  of  the  Indian 
Territory,  or  sections  2147,  2150,  2152,  R.  S.,  any  expr-ess  authority 
vested  in  the  President  to  use  the  Army  in  sucn  Territory  for  the 
apprehension  of  local  robbers  or  thieves,  etc.,  or  for  the  protection  of 
corporations  or  individuals  from  such  robbers  or  other  outlaws,  except 
in  so  far  as  such  offenders  may  be  persons  who  are  in,  or  are  attempting 
to  en4}er  the  Indian  country  ' 'contrary  to  law,"  or  are  Indians  charged 
with  crime.  (Sec.  2152,  R.  S.)  In  these  cases  they  could  be  appre- 
hended by  the  military  forces,  but  only  by  virtue  of  and  conformably 
to  the  statutes  cited,  and  not  (unless  they  be  Indians)  because  they 
are  train  robbers  or  other  offenders  against  the  local  peace  or  laws. 
C.  542,  Oct.,  1894;  5354,  Nov.,  1898. 

Held,  that  in  the  execution  of  process  of  arrest  under  the  act  of 
March  3,  1885  (23  Stat.  362),  (rendering  Indians  amenable  to  the 
criminal  laws  of  the  Territories) ,  the  military  may,  by  direction  of  the 
President,  legally  be  employed  to  aid  the  civil  officials  in  such  arrests, 
such  employment  being  expressly  authorized  by  section  2152,  R.  S. 
R.  53,  272,  Apr.,  1887. 

Notwithstanding  the  legislation  of  June  18,  1878  (20  Stat.  152),  the 
President  was  authorized  to  employ  the  military  to  arrest  and  prevent 
persons  engaging  in  introducing  liquor  into  the  Indian  country  con- 
trary to  law,  as  also  to  arrest  persons  being  otherwise  in  the  Indian 
country  in  violation  of  law,^  or  to  make  the  arrest  therein  of  Indians 
charged  with  the  commission  of  crime;  such  employment  being  ex- 
pressly authorized  by  sections  2150  and  2152,  R.  S.  R.  53,  112,  Bee, 
1879. 

That  the  President  was  authorized  by  section  2150,  R.  S.,  to  remove 
by  military  force,  after  a  reasonable  notice  to  quit,  certain  persons 
commorant  upon  an  Indian  reservation  contrary  to  the  terms  of  a  treaty 
between  the  IJnited  States  and  the  tribe  occupying  the  reservation, 
and  who  therefore  were  there  '4n  violation  of  law"  in  the  sense  of  that 
section.2    R.  37,  266,  Jan.,  1876. 

II  C  1.  Held  to  be  at  least  doubtful  whether  the  authority  of  the 
President  as  Commander  in  Chief  could  legally  be  extended  to  the 
ordering  of  an  officer  of  the  Army  upon  the  purely  civil  duty  of 
instructing  Indian  youth,  unless  indeed  such  instruction  was  to  be 
given  by  him  as  a  professor  of  a  college,  &c.,  under  section  1225,  R 
8.  Special  duties  of  an  exclusively  civil  character,  where  intended 
to  be  anything  more  than  merely  temporary,  have  in  general  been 
devolved  upon  military  officers  only  by  the  authority  of  express  legis- 
lation— as,  for  example,  in  the  cases  provided  for  by  sections  1225, 

^  But  note  that,  in  view  of  the  provisions  of  section  2151,  R.  S.,  an  officer  of  the  Army 
who  detains  a  person  arrested  under  section  2150  longer  than  five  days  before  "convey- 
ing him  to  the  civil  authority,"  or  subjects  him  when  in  arrest  to  unreasonably  harsh 
treatment,  renders  himself  liable  to  an  action  in  damages  for  false  imprisonment.  In 
re  Carr,  3  Sawyer,  316;  Waters  v.  Campbell,  5  id.,  17. 

^See  14  Op.  Atty.  Gen.,  451;  20  id.,  245;  and  note  the  proclamation  of  the  President 
published  in  G.  O.  16,  Headquarters  of  Army,  1880,  relating  to  the  intrusion  of  un- 
authorized persons  upon  the  Indian  Territory"  and  declaring  that  the  Army  would 
be  employed  to  effectuate  their  removal  if  necessary. 


ABMY  II  D.  101 

2062,  2190,  and  4687,  R.  S.,  in  which  authority  has  Wen  given  by 
Congress  for  the  employment  of  officers  of  the  Army  as  professors, 
&c.,  of  colleges,  Indian  agents,  and  assistants  in  taking  the  census^ 
and  on  the  coast  survey.  So,  advised,  that,  if  thought  expedient  to 
devolve  upon  military  officers  the  function  of  the  instruction  of  Indian 
vouth,  specific  authority  be  obtained  from  Congress  for  the  purpose.^ 
R.  41,  S45,  April,  1879;  a  16134,  Apr.  11, 1904;  20251,  Apr,  21, 1906. 

The  Industrial  Training  School  for  the  Chilocco  Indians  not  being 
established  ''at  a  vacant  military  post  or  barracks  set  aside  for  its 
use  by  the  Secretary  of  War,"  held  tYini  the  Secretary  would  not  be 
authorized  to  detail  an  officer  of  the  Army  for  duty  there  ''in  connec- 
tion with  Indian  education,"  under  the  act  of  July  31,  1882  (22  Stat. 
181).     R.  49,  320,  Sept.,  1885.  v       ^ 

II  D.  In  all  cases  of  civil  disorders  or  domestic  violence  it  is  the 
duty  of  the  Army  to  preserve  an  attitude  of  inaction  till  ordered  to 
act  by  the  President,  by  the  authority  of  the  Constitution  or  of  sec- 
tion 2150,  5297,  or  5298,  R.  S.,  or  other  public  statute.  An  officer 
or  soldier  may  indeed  interfere  to  arrest  a  person  in  the  act  of  com- 
mitting a  crime  or  to  prevent  a  breach  of  the  peace  in  his  presence, 
but  this  he  does  as  a  citizen  and  not  in  his  military  capacity.  (See 
twenty-fourth  article  of  war . )  Any  combined  effort  by  tne  military,  as 
such,  to  make  arrests  or  otherwise  prevent  breaches  of  the  peace  or 
violations  of  law  in  civil  cases,  except  by  the  order  of  the  President, 
must  necessarily  be  illegal.  In  a  case  of  civil  disturbance  in  violation 
I  of  the  laws  of  a  State,  a  military  commander  can  not  volunteer  to 
intervene  with  his  command  without  incurring  a  personal  responsibil- 
ity for  his  acts.  In  the  absence  of  the  requisite  orders  he  may  not 
even  march  or  array  his  command  for  the  purpose  of  exerting  a  moral 
effect  or  an  effect  in  terrorem;  such  a  aemonstration  indeed  could 
1  only  compromise  the  authority  of  the  United  States,  while  insulting 
the  sovereignty  of  the  State.  R.  30,  125,  Mar.,  1870;  32,  241,  Jan., 
1872;  36,  450,  May,  1875;  41,  206,  Apr.,  1878. 

II  E.  A  military  force  employed  according  to  Article  IV,  section  4, 
of  the  Constitution,  is  to  remain  under  the  direction  and  orders  of 
the  President  as  Commander  in  Cliief  and  his  military  subordinates: 
It  can  not  be  placed  under  the  direct  orders  or  exclusive  disposition 
of  the  governor  of  the  State.  R.  30, 172,  March  1870;  C.  5354,  Nov. 
19,  1898;  8383,  May,  1900;  20570,  Oct.  19,  1906. 

II  F.  Though  dicta  are  to  be  met  with  in  the  authorities  looking 
to  such  a  service  as  legal,  it  is  clear  that  the  military  forces  of  the 
United  States  can  not  as  such  be  permitted  in  any  event  to  serve  upon 
the  posse  comitatus  of  a  sheriff,  or  other  executive  official  whose  func- 
tion it  is  to  execute  the  locallaws  of  a  State  or  Territory.  R.  36,  450, 
May,  1875;  39,  458,  577,  Mar.  and  June,  1878;  C.  11928,  Jan.  21, 
1902;  16165,  Apr.  8,  1904;  17508,  Feb.  15,  1905;  20104,  July  20, 
1906;  20570,  Oct.  30, 1906;  22360,  Nov.  14,  1907. 

II  F  1.  It  is  provided  in  section  15  of  the  act  of  June  18,  1878 
(20  Stat.  152),   that — "from  and  after  the  passage  of  this   act  it 


^  See  G.  O.  39,  Headquarters  of  Army,  1880. 

2  Congress  was  accordingly  resorted  to  for  authority  in  this  instance,  and  by  the  act 
of  June  23, 1879  (21  Stat.  35),  the  Secretary  of  War  was  specially  empowered  "  to  detail 
an  officer  of  the  Army  not  above  the  rank  of  captain  for  special  duty  with  reference  to 
Indian  education."  A  detail  was  made  accordingly — by  S.  O.  194,  Headquarters  of 
Army,  Aug.  23,  1879. 


1,0^  .,,  .      .  ARMY  II  G  1  a. 

shall  not  be  lawful  to  employ  any  part  of  the  Army  of  the  United  States 
as  a  'posse  comitatus,  or  otherwise,  for  the  purpose  of  executing  the 
laws,  except  in  such  cases  and  under  such  circumstances  as  such 
employment  of  said  force  may  be  expressly  authorized  by  the  Consti- 
tution or  by  act  of  Congress."  ^  In  view  of  this  legislation,  held  as 
follows : 

That  whenever  a  marshal  or  deputy  marshal  was  prevented  from 
making  due  service  of  judicial  process,  for  the  arrest  of  persons  or 
otherwise,  by  the  forcible  resistance  or  opposition  of  an  unlawful  com- 
bination or  assemblage  or  persons,  the  President  was  expressly  author- 
ized by  section  5298,  R.  S.,^  to  employ  such  part  of  the  Army  as  he 
might  deem  necessary  to  secure  the  due  service  of  such  process  and 
execute  the  laws.  R.  89,  665,  Sept.,  1878;  43,  80,  Nov.,  1879  and 
324,  May,  1880. 

II  G  1  a.  The  Philippine  Scouts  are  a  part  of  the  Military  Estab- 
lishment.    (Sec.  36,  act  of  Feb.  2,  1901 ;  31  Stat.  751.) 

Prior  to  the  legislation  in  aid  of  the  constabulary  laws,  the  Philip- 
pine Scouts  were  on  precisely  the  same  footing,  in  respect  to  absti- 
nence from  interference  in  civil  affairs,  as  other  organizations  of  the 
Regular  Army  which  were  stationed  in  the  Phihppine  Islands.  If  a 
situation  arose  indicating  a  necessity  for  the  employment  of  military 
force  in  the  suppression  of  disorder  a  request  to  that  end  was  made 
by  the  civil  governor  upon  the  military  commander,  under  the  Presi- 
dent's instructions  to  the  Phihppine  Commission  of  April  7,  1900, 
which  were  ratified  and  confirmed  by  the  act  of  July  1,  1902  (32 
Stat.  691),  and  the  troops  were  employed,  under  the  direction  of 
their  military  superiors,  in  the  restoration  of  order.  The  extent  of 
such  use  being  determined  as  a  result  of  conference  between  the  chief 
civil  and  military  authorities  in  the  islands. 

The  operation  ot  the  act  of  January  30,  1903,  has  been  to  vest  in 
certain  officers  of  the  Philippine  Constabulary  the  same  power  of 
mihtary  command  over  companies  of  the  Philippine  Scouts,  which 

^  As  to  what  provisions  of  the  Constitution  and  acts  of  Congress  are  excepted,  see 
paragraphs  486-491,  A.  R.  of  1895  (493-498  of  1910). 

As  United  States  marshals  are  not  expressly  authorized  by  any  act  of  Congress  to 
summon  the  iniHtary  to  serve  on  a  posse  comitatus  (this  being  authorized  only  indirectly 
and  impliedly  by  the  provision  of  the  act  of  Sept.  24,  1789,  incorporated  i  n  sec.  787  of 
the  Revised  Statutes,  6  Op.  Atty.  Gen.,  466,  471;  letter  of  Atty.  Gen.  Evarts  to  the 
U.  S.  marshal  for  the  northern  district  of  Florida,  Atty.  Gen.'s  office,  Aug.  20,  1868; 
general  instructions  to  U.  S.  marshals  from  Atty.  Gen.  Taft,  published  in  G.  O. 
96,  Headquarters  of  Army,  1876),  the  Army  can  not,  under  the  existing  law,  legally 
act  on  the  posse  comitatus  of  a  marshal  or  deputy  marshal  of  the  United  States.  See 
16  Op.  Atty.  Gen.,  162  (Oct.  10,  1878);  17  id.,  242,  333;  19  id.,  293;  21  id.,  72. 

While  the  object  of  the  serving  of  United  States  troops  on  the  posse  of  a  United  States 
marshal  (where  legally  authorized  so  to  serve)  is  simply  to  assist  and  cooperate  with 
him  in  the  enforcement  of  the  process  committed  to  him  for  execution,  and  the  com- 
mander of  the  detachment  is  to  consider  himself  as  acting  in  subordination  to  the  civil 
officer  (see  Atty.  Gen.  Evarts's  letter  of  instructions  cited,  supra),  the  troops  employed 
are  to  be  regarded  as  under  the  command  of  their  military  superiors,  and  directly 
responsible  to  the  latter  as  on  other  occasions  of  the  performance  of  military  duty  and 
service.    See  G.  O.  96,  A.  G.  O.,  1876;  also  par.  490,  A.  R.  of  1895  (497  of  1910). 

2  See  sec.  5300,  R.  S.,  as  to  proclamations  by  the  President  whenever  in  his  judg- 
ment it  becomes  necessary  to  use  the  military  forces  under  sees.  5297,  5298,  and  5299 
or  other  sections  of  Title  LXIX,  R.  S,  As  instances  of  such  proclamations  see  procla- 
mation of  Oct.  7,  1878,  20  Stat.,  806;  do.  of  July  8  and  9,  1894,  28  Stat.,  1249,  1250. 
See  also  the  President's  (Cleveland)  reply  to  Gov,  Altgeld,  July  5,  1894 — pu])lished 
in  "The  Use  of  the  Army  in  Aid  of  the  Civil  Power"  (Lieber),  War  Dept.  Doc.  No.  63. 


ARMY   II   G  2   a.  108 

are  ordered  to  assist  the  constabulary  in  the  maintenance  of  order, 
as  is  habitually  exercised  by  the  ofRcers  of  the  line  of  the  Army  over 
the  commantls  to  which  they  have  been  assigned  by  the  President,  or 
by  military  superiors  deriving  their  authority  from  the  President. 
The  control  of  the  chief  of  the  Phihppine  Constabulary  over  his 
subordinates  in  the  service  is  derived  from  the  legislation  of  the 
Philippine  Commission  and  from  the  orders  of  the  civil  governor, 
conveyed  to  such  chief  either  directly  or  through  the  secretary  of 
commerce  and  police;  and  his  authority  over  such  companies  of 
Phihppine  Scouts  as  are  employed,  in  support  of  the  constabulary,  in 
the  maintenance  of  order,  is  a  strictly  military  command,  and  is 
derivetl  from  the  act  of  Januaiy  30,  1903,  which  obviously  has  appli- 
cation to  cases  in  which  the  disturbance  is  so  limited  and  localized 
that  order  can  be  restored  by  the  employment  of  the  civil  agencies 
provided  for  that  purpose  with  the  assistance  of  a  detachment  of 
Pliilippine  Scouts;  m  other  words,  the  extent  and  amount  of  the  dis- 
order IS  known  to  the  civil  governor,  who  has  ground  for  the  belief 
that  the  constabulary  force,  w^ith  the  assistance  of  one  or  more  com- 
panies of  scouts,  can  restore  order  or  secure  the  execution  of  the  laws 
m  the  tlisturbed  locality  without  formally  calUng  upon  the  military 
commander  for  the  employment  of  troops  in  the  method  prescribed 
in  the  President's  proclamation  of  July  3,  1902.     C,  17508,  Feb.  15, 

II  G  2  a.  The  officers  and  men  of  the  Regular  Army  have,  under 
ordinaiy  circumstances,  no  responsibihties  in  connection  with  the 
maintenance  of  civil  order  in  tne  Phihppine  Islands,  or  elsewhere, 
and  no  duties  in  respect  to  the  general  execution  of  the  laws,  and  they 
become  charged  mth  such  responsibihty  only  when  insurrection 
exists  against  the  authority  of  the  United  States  or  when  resistance 
is  encountered  in  the  execution  of  its  laws;  in  which  case  the  law 
vests  in  the  President  the  powder  to  use  mihtary  force  in  the  repression 
of  such  insurrection  or  in  the  execution  of  certain  statutes,  in  which 
event  they  act,  not  on  their  own  motion  but  in  pursuance  of  instruc- 
i  tions  from  the  President  as  the  Commander  in  Chief  of  the  military 
forces  of  the  United  States.     C.  17508,  Feb.  15,  1905. 

II  G  2  a  (1).  The  duty  of  the  President  to  maintain  order  in  the 
Philippine  Islands  is  precisely  the  same  in  respect  to  its  source,  char- 
acter, and  extent  as  his  duty  to  maintain  order  in  the  District  of 
Columbia  or  in  the  Territory  of  New  Mexico.     It  is  exercised  in  the 
Phihppine  Islands  by  the  civil  governor,  who  acts  in  behalf  of  the 
•  ^  President,  and  who  is  provided  with  adequate  civil  agencies  to  assist 
\\  him  ill  the  performance  of  his  duties  in  that  regard.     In  the  par- 
;i  ticular  case  of  disorder  which  is  contemplated  in  the  act  of  January 
; ;  30,  1903,  a  portion  of  the  mihtary  forces  of  the  United  States  is  placed 
i  i  at  his  disposal,  which  is  to  be  employed  under  his  general  direction  in 
! !  the  restoration  of  order,  but  is  to  act  under  ofRcers  of  the  Army  who 
are  clothed  mth  mihtary  rank  and,  having  such  rank,  are  not  only 
competent  to  exercise  mihtary  command  but  are  designated  in  the 
statute  by  title  of  office  and  are  therein  expressly  vested  with  the 
power  to  exercise  the  particular  command  wnich  is  described  in  the 
statute.     If  the  theater  of  a  particular  disturbance  should  extend 
over  and  include  a  considerable  territorial  area  and  should  it  be  par- 
;  ticipated  in  by  a  large  number  of  the  native  inhabitants  of  the  island, 
becoming  so  formidable  that  the  constabulary  with  th3  assistance  of 


104  ARMY  II  H. 

the  Philippine  Scouts  could  not  deal  with  it,  a  case  would  arise  for 
the  general  employment  of  mihtary  force,  and  the  operations  would 
be  conducted  by  the  proper  mihtary  commander  under  the  general 
direction  of  the  President.     C.  17608,  Feb.  15,  1906. 

II  H.  The  Chief  Forester  of  the  United  States  requested  that 
Federal  troops  be  placed  on  duty  within  certain  forest  reserves  of  the 
United  States,  witn  instructions  to  kill  wild  horses  or  other  noxious 
animals  on  such  reserves.  Held,  That  even  though  everyone  in  the 
neighborhood  of  the  wild-horse  range  appeared  to  be  willing  to  take 
the  risk  of  damage  to  private  property,  troops  should  not  be  placed 
upon  that  duty,  and  that  if  so  placed  it  would  entail  endless  compli- 
cations on  the  part  of  stockmen,  who  might  allege  that  their  stock 
were  damaged.     G.  23846,  Sept.  16,  1908. 

II  I  1 .  In  a  State  of  the  Union  the  common  law,  or  the  law  of  the 
State,  requires  the  principal  peace  officer,  the  sheriff  in  the  county, 
before  usmg  his  posse  to  read  the  riot  act.  In  analogy  to  this  pro- 
cedure, section  5300,  R.  S.,  charges  the  President  with  the  perform- 
ance of  a  corresponding  duty  by  the  issue  of  a  proclamation.  Until 
such  proclamation  is  issued  troops  of  the  United  States  will  not  be 
used  with  a  view  to  preserve  order  in  any  one  of  the  States  of  the 
Union.     C.  22474,  Dec.  10,  1907. 

II  I  2.  When  a  State  has  exhausted  her  own  coercive  resources  to 
maintain  order  within  her  borders  and  has  requested  the  Federal 
Government,  under  constitutional  authority,  to  protect  her  from  the 
violence  of  her  own  members,  Jield,  that  the  Federal  Government 
must  direct  its  own  forces,  as  it  can  not  transfer  its  own  functions 
to  a  State.  This  is  true  whether  the  President  commands  the  troops 
in  person,  as  did  President  Washington  during  the  Pennsylvania 
Rebellion  of  1794,  or  devolves  this  duty  on  a  subordinate.  The 
Federal  authorities  will  direct  the  operations.     C.  8383,  May  26, 1900. 

II I  3  a.  When  the  President  is  required,  in  the  execution  of  his 
duty,  to  send  troops  within  one  of  the  States  of  the  Union  to  protect 
it  from  the  violence  of  its  own  members,  or  to  guarantee  the  execution 
of  Federal  statutes,  he  wiU  be  the  judge  of  the  size  of  the  force  to  send, 
which  may  be  possibty  a  few  hundred  men  or  many  thousand  troops. 
C.  8383,  May  26,  1900. 

II I  3  b.  When  Federal  troops  are  required  within  the  limits  of  one 
of  the  States  of  the  Union,  to  protect  it  from  the  violence  of  its  own 
members,  or  to  guarantee  the  execution  of  Federal  statutes,  lield  that 
the  district  occupied  may  vary  from  one  or  two  points  to  extensive 
portions  of  the  State's  territory.  The  measures  of  administration 
and  control  necessary  to  adopt  in  every  instance  will  depend  upon  its 
own  circumstances.  The  President  or  officer  to  whom  he  confides 
the  direction  of  affairs  wiU  decide  upon  this,  and  if  martial  law  be  a 
necessary  and  proper  measure  he  will  institute  it,  as  both  the  duty 
and  the  responsibility  are  his.     C.  8383,  May  26, 1900. 

II  I  4.  When,  in  compliance  with  a  request  from  one  of  the  States 
for  assistance,  or  when,  in  execution  of  his  duty  as  President  of  the 
United  States,  the  Commander  in  Chief  sends  Federal  troops  within 
a  State  to  protect  the  State  from  the  violence  of  its  own  members,  or 
to  guarantee  the  execution  of  Federal  statutes,  a  limitation  is  placed 
upon  the  operations  of  the  Federal  troops,  namely,  that  they  must 
do  nothing  which  wiU  nuUify  Jhe  guarantee  in  the  Federal  Constitu- 


ARMY  II  I  5.  105 

tion  of  a  republican  form  of  government  to  the  State.  C.  8883, 
May  26,  1900. 

it  I  5.  Held  that  troops  may  be  used  to  assist  in  ejecting  tres- 
passer from  Indian  lands,     C.  5Ji£,  Sept.  11,  1907. 

II I  6.  A  railroad  company  requested  a  department  commander  to 

fuard  a  high  bridge  which  the  company  believed  was  in  danger  of 
eing  destroyed  during  war  just  across  tne  boundary.  Held  that  his 
action  in  furnishing  the  guard  was  proper  under  section  5298-5299 
R.  S.  in  securing  to  the  Government  the  use  of  that  ''post  route,  and 
military  road."  Held,  further,  that  it  was  within  the  constitutional 
power  of  the  President  to  guard  the  bridge  against  the  invasion  of 
United  States  territory  by  lawless  bands  from  across  the  boundary. 
C.  27995,  Mar.  21,  1911, 

UK  1.  While  it  is  true  that  the  status  of  neutrality  is  one  that  only 
comes  into  existence  at  times  of  public  war,  held  that  the  neutrality 
laws  of  the  United  States  are  happily  drawn  so  as  not  to  depend  upon 
the  existence  of  a  state  of  war  for  their  enforcement,  as  the  several  acts 
which  are  therein  made  criminal  and  punishable  acquire  the  character 
of  crimes  and  misdemeanors  when  committed  against  a  foreign  State 
with  which  the  United  States  is  at  peace.     0.  22132,  July  6, 1908. 

II  K  1  a.  The  question  was  raised  under  the  neutrality  laws  of  the 
United  States,  as  found  in  the  Revised  Statutes  (sec.  5281  to  5291), 
and  the  act  of  March  4,  1909  (35  Stat.  1090),  as  to  what  constitutes  a 
military  expedition  or  enterprise  within  the  meaning  of  sections  13 
and  14  of  the  act  of  March  4,  1909.  Held  that  any  combination  of 
men  organized  and  provided  with  means  within  the  territory  or  juris- 
diction of  the  United  States  to  go  to  a  foreign  country,  with  the  Gov- 
ernment of  which  the  United  States  is  at  peace,  for  the  purpose  of 
making  war  on  that  Government,  is  a  military  expedition  or  enter- 
prise within  the  meaning  of  the  statute.  The  number  of  men  in  the 
combination  is  not  necessarily  decisive.  Three  or  four  would  be 
sufficient,  other  necessary  conditions  being  present.  The  organiza- 
tion need  not  be  efficient  or  complete.  It  is  sufficient  that  there  is 
submission  by  common  consent  to  the  will  and  direction  of  one  or 
more  leaders.  The  means  of  making  war,  with  which  the  combina- 
tion is  provided,  need  not  be  adequate  or  in  the  personal  possession  of 
the  men,  as  it  is  sufiicient  if  such  means  are  adapted  to  the  purpose  of 
making  war  and  have  been  provided  for  the  use  of  the  men  when 
occasion  may  require.^     C.  22132,  Apr.  22,  1911. 

II  K  1  b.  On  a  question  as  to  how  much  force  can  be  used  by  the 
commanding  general  of  American  troops  in  the  enforcement  of  the 
neutrality  of  the  United  States,  held  that  in  carrjdng  out  the  provi- 
sions of  section  14  of  the  act  of  March  4,  1909  (35  Stat.  1152),  a  mili- 
tary detachment  may  resort  to  all  the  force  that  under  the  circum- 
stances of  the  case  appear  to  be  necessary,  even  though  in  doing  so  it 
be  necessary  to  use  deadly  weapons,  with  which  the  detachment  may 
be  armed.  The  actual  use  of  saber,  bayonet,  or  firearm  will  generally 
be  preceded  by  due  warning  to  the  parties  sought  to  be  arrested,  and 
will  be  resorted  to  after  such  warning  only  when  no  lesser  measure  of 
force  may  reasonably  be  expected  to  accomplish  the  lawful  end  in 
view,     d  22132,  Apr.  22,  1911. 

^  See  U.  S.  v.  Yebanez,  53  Fed.  Rep.  538;  U.  S.  v.  Hart,  74  Fed.  Rep.  727;  U.  S.  v. 
Hart,  78  Fed.  Rep.  874;  U.  S.  v.  Murphy,  84  Fed.  Rep.  613. 


106  ARMY  II   K  1  C. 

II  K  1  c.  Held  that  when  information  is  in  the  possession  of  the 
commanding  general  of  a  department  which  is  adjacent  to  the  boun- 
dary hne  of  the  United  States  and  a  friendly  country,  that  bands  of 
armed  men  are  planning  to  cross  the  border  and  make  war  upon  such 
friendly  country,  he  should  furnish  such  information  at  once  to  the 
nearest  United  States  marshal  or  United  States  attorney  with  a  view 
to  his  taking  the  proper  steps  to  bring  the  offending  parties  to  justice.^ 
C.  22182,  Sept.  26,  1907. 

II  K  1  d.  Wlien  the  armed  forces  of  the  United  States  are  used  to 
enforce  the  neutrality  laws  of  the  United  States,  held  that  there  is  no 
authority  for  such  forces  to  cross  the  boundary  line  into  the  territor}-  of 
a  friendly  country  even  to  pursue  armed  forces  that  have  crossed  from 
the  territory  of  the  United  States  into  such  territory  or  friendh^  country 
with  a  view  to  making  war  on  that  friendly  country.  C.  23132,  July 
6,  1908. 

II  K  1  e  (1).  Held  that  when  arms,  ammunition,  animals,  or  other 
contraband  are  seized  by  American  troops  near  the  border  between 
the  United  States  and  a  friendly  foreign  State  which  is  being  sub- 
jected to  the  experience  of  civil  war  or  insurrection,  the  commanding 
general  of  the  American  troops  should  as  soon  as  possible  turn  such 
seized  property  over  to  the  Federal  civil  authorities.  C.  22132,  Nov. 
21,  1911. 

II  K  1  e  (2).  In  a  case  when  a  neighboring  State  was  passing 
through  the  experience  of  civil  w^ar  and  instructions  had  been  sent 
to  the  commanding  general  of  United  States  troops  nearest  to  the 
border  line  between  the  United  States  and  the  neighboring  State 
to  preserve  the  neutrality  of  the  United  States,  and  pursuant  to  his 
instructions  arms  and  ammunition  had  been  captured  by  American 
troops  from  a  band  which  fled  at  the  approach  of  the  American  troops, 
Jield  that  the  commanding  officer  of  the  troops  should  retain  captured 
property  in  his  possession,  and  that  if  a  writ  of  replevin  should  issue 
out  of  a  State  court  he  should  resist  it  and  give  notice  to  the  State 
court  that  the  property  w^as  held  by  him  under  the  authority  of  the 
United  States,  at  the  same  time  advising  the  United  States  attorney 
of  his  action.  Held  further  that  if  a  writ  of  replevin  should  issue  out 
of  a  Federal  court  he  will,  under  advice  of  said  attornev,  make  proper 
return   thereto.     G.  22132,  Apr.  25,  1911. 

II  K  1  f  (1).  During  the  progress  of  an  engagement  between 
opposing  forces  in  a  time  of  civil  war  in  a  neighboring  State,  fire  was 
directed  across  the  border  line  and  into  the  territory  of  the  United 
States.  Held  that  the  employment  by  the  commanding  general  of 
the  American  troops  in  that  vicinity  of  a  civilian  to  carry  a  message 
to  the  commanding  officers  of  the  two  opposing  forces,  in  which  mes- 
sage he  notified  them  of  the  fact  that  shots  were  being  fired  across  the 
border  line  into  the  United  States  and  requested  them  to  desist,  was 
a  proper  action,  and  that  such  messenger  could  be  paid  for  his  services 
from  the  appropriation  "Contingencies  of  the  Army."^  Q.  22132,  May 
8,  1911. 

*  See  section  5287,  R.  S.,  which  authorizes  the  President,  or  such  person  as  he  shall 
empower  for  the  purpose,  to  prevent  the  carrying  out  of  any  such  expedition  or  enter- 
prise. 

2  See  XVI  Comp.  Dec,  132. 


I 


ARMY  II   K  1   f  (2).  107 

II  K  1  f  (2).  On  a  question  as  to  what  could  be  done  by  the  com- 
niandm*];  jjjeneral  of  Ajnerican  troops  on  duty  near  the  border  Unc 
between  the  United  States  and  a  friendly  foreign  State  in  a  contin- 
gency when  insurgents  witliin  that  foreign  State  disguised  as  regular 
troops  should  doliberately  and  wantonl}',  and  ^vithout  being  provoked, 
fire  across  the  border  line  upon  American  troops,  held  that  the  com- 
manding general  of  the  American  troops  may  m  such  a  contingency 
defend  against  such  an  attack  and  aggressively  to  the  extent  necessarv 
to  protect  his  troops.     C.  22132,  May  4,  1911. 

II  K  1  g  (1).  Held  that  when  the  neutrality  laws  of  the  United 
States  are  bemg  violated  or  its  territory  is  menaced  with  invasion, 
the  cost  of  executing  such  neutrality  laws  woidd  constitute  primarily 
a  charge  against  the  United  States  rather  than  against  the  State,  and 
that,  when  in  an  unusual  emergency  the  peace  or  one  of  the  States  of 
the  Union  equally  with  that  of  the  United  States  is  disturbed  or 
threatened,  or  its  territorial  integrity  is  menaced  with  invasion,  the 
commanding  general  of  United  States  troops  in  that  vicintiy  should 
maintain  the  most  cordial  relations  with  the  State  authorities,  but 
that  he  should  constantly  bear  in  mind  that  under  ordinary  circum- 
stances cooperation  of  the  State  authorities  which  involves  unusual 
time  or  considerable  demands  upon  the  State  treasury  should  be 
sedulously  avoided.     C.  22132,  Aug.  27,  1908. 

II  K  1  g  (2).  Held  that  the  commanding  general  of  Federal  troops 
along  the  border  of  the  United  States  and  a  friendly  foreign  State, 
which  is  being  subjected  to  the  experience  of  civil  war,  is  not  author- 
ized to  support  the  authorities  of  one  of  the  States  of  the  Union  in 
the  execution  of  the  State  laws.     C.  22132,  Nov.  21,  1911.  ^ 

II  K  1  h  (1).  The  practice  is  fast  becoming  general  for  civil  authori- 
ties to  take  finger  prints  of  persons  held  by  them  charged  with  crime. 
Held,  however,  that  when  troops  cross  the  boundary  from  a  friendly 
country  which  is  being  subjected  to  the  experience  of  civil  war,  and 
are  interned  within  the  United  States,  there  is  no  occasion  under 
which  the  finger  prints  of  such  persons  should  be  taken.  C.  22132, 
June  26,  1911. 

V  A.  Under  Article  IX  of  the  peace  protocol  signed  September  7, 
1901,  between  China  and  the  Powers,  the  Chinese  Government  con- 
ceded the  right  to  the  Powers  in  the  protocol  annexed  to  the  letter 
of  the  16th  of  January,  1901,  to  occupy  certain  points,  to  be  deter- 
mined by  an  agreement  between  them,  for  the  maintenance  of  open 
communication  between  the  capital  and  the  sea.  Held  that  the 
object  of  the  military"  occupation  of  certain  points'  between  Peking 
and  the  sea  is  to  enable  the  foreign  legations  at  the  capital  to  have 
free  passage  to  the  sea,  to  make  it  possible  for  the  Powers  to  send 
troops  to  the  capital,  in  case  the  disturbed  condition  of  China  makes 
it  necessary  for  the  Powers  to  act,  and  to  protect  foreign  officials 
and  merchants.  Held  therefore  that  United  States  forces  when 
charged  with  the  protection  of  a  certain  portion  of  this  line  from 
Peking  to  the  sea  are  not  only  authorized  under  the  protocol,  but 
are  bound  by  their  implied  obligations  to  the  other  signatory  Powers 
to  prevent,  by  force  if  necessary,  any  act  committed  by  the  Imperial 
Government  or  by  any  revolutionary  party  which  would  result  in 
the  interruption  of  this  communication.  This  maintenance  of  free 
communication  should  be  the  sole  criterion  by  which  the  command- 


108  ARMY  BANDS   I  A  1. 

ing  officer  of  the  American  forces  detailed  for  duty  on  this  hne,  by 
which  he  is  to  be  guided  in  arriving  at  a  decision  as  to  the  legahty 
or  advisability  of  any  measure  he  may  propose  to  take  in  the  section 
assigned  to  the  American  troops.  Held  further  that  any  act  com- 
mitted that  tends  to  interfere  with  free  communication  along  the 
section  assigned  us  is  a  violation  of  our  treaty  rights  and  shomd  be 
prevented.     C.  29383,  Jan.  15,  1912. 

ARMY   BANDS.i 

I.  COMPETITION  WITH  CIVIL  BANDS. 

A.  What  Constitutes. 

1.  The  same  form  of  music  must  be  furnished  and 

2.  There  may  be  competition  when  there  is  but  one  band  in  the  locality, 

3.  Quality  of  local  music  not  a  factor. 

4.  Price  charged  for  musical  services  not  a  factor Page  109 

5.  Union  affiliations  of  civil  musicians  not  a  factor. 

6.  Inhibition  of  statute  applies  to  both  bands  and  the  individual  mem- 

bers thereof. 

B.  Who  Shall  Determine  if  Competition  Exists. 

1.  Post  commander,  but 

Post  commander  not  allowed  discretion  as  to  merits  of  civilian  band, 

and  it  is 
Duty  of  those  desiring  band  to  show  lack  of  competition. 

C.  Competition  Does  Not  Exist. 

1.  Where  music  by  military  band  is  furnished  free. 

2.  Where  Army  band  plays  for  civilians  under  competent  orders. 

3.  Where  member  of  Army  band  serves  as  instructor  to  civil  band. 

4.  In  the  case  of  Army  bandsmen  on  the  retired  list. 

D.  Volunteer  Bands. 

1.  Public  money  can  not  be  used  to  buy  music Page  110 

2.  Instruments,  how  secured. 

3.  Competition  with  civil  bands. 

I  A  1 .  While  the  terms  of  the  prohibition  in  respect  to  Army 
bands  competing  with  local  musicians  are  quite  sweeping,  there 
must  be  competition  in  respect  to  the  particular  form  of  musicial 
service  which  is  called  for  by  the  employer.  Where,  therefore,  a 
brass  band  was  desired  and  there  was  no  civil  brass  band  in  the 
locality,  held,  that  it  would  be  lawful  for  an  Army  band  to  render 
the  service  desired.     C.  14639,  May  14,  1910. 

I  A  2.  There  may  be  competition  in  a  locality  where  there  is  a 
single  organized  civil  band  which  is  capable  of  rendering  service 
similar  to  that  furnished  by  an  Army  band.  The  service  so  rendered 
may  be  less  acceptable  than  that  which  the  Army  band  is  capable 
of  rendering;  indeed  it  may  be  entirely  unacceptable,  but  as  long  as 
there  is  a  single  band  of  local  musicians  which  desires  to  compete 
the  Army  band  is  incapacitated  and  can  not  accept  a  proffered  engage- 
ment.    O.  14639,  June  10  and  Oct.  14,  1908. 

I  A  3.  The  quality  of  the  local  music  is  not  a  factor  in  determining 
the  question  of  competition ;  if  there  are  civilian  musicians  who  desire 
to  furnish  music,  the  military  band  can  not  receive  compensation  for 

^  Prepared  by  Lieut.  Col.  John  Biddle  Porter,  judge  advocate,  assistant  to  Judge 
Advocate  General. 


ARMY  BA-NDS   I   A  4.  109 

plavmg.  C.  H639,  Feb.  19,  Mar.  5,  Mar.  24  and  Aug.  18,  1909 
and  May  6,  1911.      • 

I  A  4.  The  determination  of  whether  there  is  or  is  not  competi- 
tion between  a  military  and  a  civil  band  does  not  depend  on  the 
price  charged  by  either  for  services.  C.  1^639,  Feb.  19,  Mar.  24, 
and  Aug.  18,  1909  and  Feb.  28,  1911. 

I  A  5.  Held,  that  the  competition  which  is  prohibited  to  Army 
bands  is  that  in  connection  with  local  musicians,  independently  of 
their  union  affiliations.     C.  14639,  June  8,  Sept.  25,  and  Oct.  14, 1908. 

I A  6.  The  act  of  May  11, 1908  (35  Stat.  110),  is  equally  applicable 
to  bands  and  to  individual  members  thereof.     C.  14639,  Sept.  25, 1908. 

I  B  1 .  The  duty  of  determining  whether  the  acceptance  of  an  engage- 
ment by  an  Ai-my  band  will  come  within  the  operation  of  the  act  of 
May  11,  1908  (35  Stat.  110),  is  one  with  which  the  post  commander 
is  charged,  and  in  the  performance  of  which  he  is  to  determine 
whether  the  acceptance  of  a  particular  engagement  wiU  place  an 
Army  band  in  competition  with  a  similar  local  organization.  The 
law  vests  no  discretion  in  the  post  commander  to  pass  upon- the  rela- 
tive merits  of  civilian  bands  or  to  say  that  a  particular  oand  is  or  is 
not  of  sufficient  musical  standing  to  compete.  Those  who  desire 
the  services  of  the  Army  band  should  be  able  to  make  such  represen- 
tations to  the  commanding  officer  as  will  establish  to  his  satisfaction 
the  fact  that  there  are  no  similar  civil  organizations  which  desire  to 
compete,  in  order  to  permit  the  employment  of  the  Army  band. 
C.  14639,  June  10,  Aug.  22,  Sept.  17,  Oct.  14,  1908,  and  Feb.  19,  1909. 

I  C  1 .  In  a  case  where  an  Army  band  furnished  music  outside  the 
limits  of  a  military  post,  but  without  remuneration,  held,  that  there 
had  been  no  violation  of  the  act  of  May  11,  1908  (35  Stat.  110), 
which  forbids  the  furnishing  of  music  for  remuneration  by  military 
bands  outside  the  limits  of  a  military  post  in  competition  with  local 
civil  musicians.  C.  14639,  Sept.  17,  1908,  Mar.  12,  1909,  and  Nov. 
11,  1911.  So  for  a  military  band  to  give  free  concerts  in  a  city  in 
which,  or  near  which,  it  is  stationed  is  not  a  contravention  of  the 
law.  C.  14639,  Oct.  31,  1911.  The  law  does  not  forbid  the  playing 
of  musicians  outside  the  limits  of  a  military  post,  but  forbids  their 
receiving  compensation  for  playing  when  in  competition  with  local 
civil  musicians.  C.  14639,  July  7,  Oct.  14,  1908,  and  May  6  and  25, 
1911. 

The  act  of  May  11,  1908  (35  Stat.  110),  does  not  contemplate  that 
military  bands  ma}^  not  voluntarily  play  for  civilians,  if  by  volun- 
tarily is  meant  without  remuneration.     C.  1A639,  Sept.  17,  1908. 

I  C  2  Where  an  Army  band  was  placed  by  tne  Secretary  of  War  at 
the  disposal  of  the  executive  committee  of  an  irrigation  congress, 
held,  that  the  placing  of  the  band  on  this  duty  was  m  the  operation 
of  lawful  orders  from  competent  military  authority  and  that  there 
was  no  infraction  of  the  act  of  May  11,  1908  (35  Stat.  110).  C.  14639, 
July  30,  1909. 

I  C  3.  Where  a  musician  of  a  military  band  was  employed  as 
instructor  in  music  by  a  local  civilian  band,  held,  that  he  was  not 
engaged  in  furnishing  musical  services  within  the  prohibition  of  the 
act  of  May  11,  1908  (35  Stat.  110).     C.  14639,  Sept.  10,  1909. 

I  C  4.  The  inhibition  contained  in  the  act  of  May  11, 1908  (35  Stat. 
110),  is  against  Army  bands  or  members  thereof  receiving  remunera- 
tion for  furnishing  music  outside  the  limits  of  mihtary  posts  in  com- 


110  ARMY  BANDS — AREEST. 

petition  with  local  civilian  musicians,  Tield,  therefore,  that  a  musician 
on  the  retired  list  of  the  Army,  not  being  a  band  or  a  member  thereof, 
did  not  come  within  the  inhibition.     C.  24179,  Dec.  9,  1908. 

I  D  1 .  Where  it  was  proposed  to  expend  public  money  in  furnishing 
music  to  bands  which  are  not  authorized  by  law  as  a  part  of  the  mili- 
tary establishment,  held,  that  such  an  expenditure  would  not  be 
authorized  by  law,  as  the  Executive  is  without  authority,  unaided  by 
legislation,  to  estabhsh  bands  in  the  military  service.  C.  23870,  Dec. 
11,  1908. 

I  D  2.  Volunteer  bands  at  mihtary  posts  are  not  organizations 
estabUshed  by  law  as  a  part  of  the  Army;  held,  therefore,  that  in  so 
far  as  the  purchase  of  new  instruments  and  material  are  concerned 
the  Secretary  of  War  is  restricted  in  the  procurement  of  such  articles 
to  the  reasonable  needs  of  the  bands  whicn  are  authorized  by  existing 
law;  where,  however,  a  stock  of  instruments  has  accumulated  in 
excess  of  the  legitimate  demand,  it  is  equally  within  the  authority  of 
the  Secretary  of  War  to  permit  their  use  in  a  case  where  the  welfare, 
comfort,  and  contentment  of  the  enhsted  men  of  the  Army  would  be 
promoted  by  such  use.     C.  23870,  Sept.  21,  1908. 

I  D  3.  Semhle,  that  volunteer  bands  composed  of  enlisted  men, 
maintained  at  mihtary  posts,  are  bands  withm  the  inhibition  of  the 
act  of  May  11,  1908  (35  Stat.  110),  forbidding  mihtary  bands  com- 
peting with  civihan  local  musicians  for  remuneration.  U.  14639,  May 
21,  1908;  Sept.  16,  1910;  Aug.  22,  1911. 

CROSS    REFERENCE. 

Refusal  to  play See  Articles  or  War  XXI  C  2  c. 

Retirement  of  member  of. See  Retirement  II  E  2  a. 

Money  paid  to  fund See  Public  Money  I  A. 

ARMY  OF  CUBAN  PACIFICATIOIT. 

Army See  Articles  of  War  LXXII  F  1. 

Discharge  without  honor  from See  Discharge  III  B  1. 

ARMY  REGULATIONS. 

See  Laws  II  A  to  B. 

ARRAIGNMENT, 

Of  accused See  Discipline  IX  E  1  to  5  b. 

Record  of See  Discipline  XIII  D. 

ARREST. 

Absentee See  Articles  of  War  LIX  I  2. 

Affrayer  by  bystander See  Articles  of  War  XXIV  A. 

Attaches  jurisdiction See  Discipline  VIII  D  ]  to  4. 

Breach  of See  Articles  of  War  LXII  C  17;  18;  LXV 

A  to  C. 

By  Judge  Advocate See  Discipline  IV  B  5. 

Civilian  by  military See  Command  VA3c;  VA3c(1);  VA3d 

(1). 
See  Claims  XII  E. 

Civilians  in  Indian  country See  Army  II  C. 

Deserters See  Desertion  III  A  to  H. 

Dismissed  officer  or  discharged  soldier See  Command  V  A  6  b  (1)  (b). 


ARTICLES   OF   WAR:   SYNOPSIS.  Ill 

Evidence  of  protracted See  Discipline  XI  A  14  a;    XIV  E  9  d 

(1)  (a). 

Flag  of  truce See  War  I  C  10. 

Force  that  may  be  used See  Command  V  A  3  c. 

Illegal  of  civilian See  Army  II  D. 

Jurisdiction  docs  not  depend  on See  Discipline  VIII  G  1  a;  b. 

Member  of  general  court-martial See  Discipline  VI  E. 

Military See  Discipline  I  A  to  E  3;  II  C. 

Military  by  civil See  Articles  op  War  LIX  A. 

National  cemetery See  Public  Property  IV  A  3  b. 

Payment  during See  Pay  and  Allowances  I  Alb;  c. 

Photographing  fortifications See  War  I  C  6  g  (1). 

Release  from See  Articles  op  War  LXXI  C  ;  D. 

Violation  of  navigation  laws See  Navigable  Waters  IX  B. 

Witness See  Discipline  X  L  1. 

ARTICLES  OF  WAR.^ 

Article. 

in.  A.  "Infamous  Criminal  Offense "  Defined Page  120 

Vm.  A.  Does  Not  Refer  to  Funds. 
ZVn.  A.  "His  Clothing"  Defined.    (See  Clothing  Allowance.) 

B.  Other  Wrongful  Dispositions,  How  Charged. 

C.  Pecuniary  Responsibility,  How  Settled. 
ZIX.  A.  Adverse  Criticism  Not  Offense. 

ZXI.  A.  "  Superior  Officer  "  Defined Page  121 

B.  "W^iLLPUL  Refusal  or  Neglect." 

1.  To  pay  debt  to  company  tailor. 
a.  To  act  as  cook. 

C.  Acts  that  are  Not  Violations  of  this  Article. 

1.  Officers. 

a.  Refuses  to  sign  certificate. 

2.  Enlisted  men. 

a.  Refuses  to  act  as  officer's  servant Page  122 

b.  Refuses  to  contract  marriage. 

c.  Refuses  to  play  as  musician  in  town. 

d.  Refuses  prophylactic  treatment  because  of  religious  belief. 

D.  Rule:  Obey  Order  First,  Question  Legality  Afterwards. 

E.  Homicide  of  Superior  Officer. 

1.  Soldier  may  be  tried  by  court-martial. 

2.  May  be  punished  capitally. 

XXn.  A.  Mutiny  Defined Page  123 

B.  Refusal  in  Combination  t©  Obey  Unlawful  Order  Not  Mutiny. 
XXIV.  A.  Any  Bystander  Should  Arrest  an  Affrayer. 

XXV.  A.  Confers  no  Jurisdiction Page  124 

XXVI.  A.  Deliberate  Invitation  Necessary. 

XXIX.  A.  Limited  to  Regimental  Commander Page  125 

B.  Statements  in  Efficiency  Reports. 

1  As  shown  by  the  synopsis  above,  tin  opinion  has  not  been  written  on  each  of 
the  Articles  of  War.     The  128  articles,  briefly  stated,  are  as  follows: 


Article. 

1 .  Officers  shall  subscribe  these  articles. 

2.  Articles  to  be  read  to  recruits. 

3.  Officers     making     unlawful     enlist- 

ments. 

4.  Discharges. 

5.  Mustering  persons  not  soldiers. 

6.  Taking  money  on  mustering. 


Article. 

7.  Returns  of  regiments,  etc. 

8.  False  returns. 

9.  Captured   stores   secured   for  public 

service. 

10.  Accountability  for  arms,  etc. 

11.  Furloughs. 

12.  Musters. 


112 


ARTICLES   OF  WAR:   SYNOPSIS. 


Article. 

XXX.  A.  Does  Not  Authorize  Trial  of  Officers. 

B.  One  Hundred  and  Third  Article  of  War  Does  Not  Apply. 

C.  Only  Regimental  Commanders  Can  Summon  Court. 

D.  Limitations  on  Province  op  Court. 

E.  Right  to  Complain Page  126 

ZXXn.  A.  Means  A'bsence  from  Post. 

B.  Absence  to  Evade  Duty. 

C.  Absence  that  Includes  Failure  "to  Repair" Page  127 

XXXVni.  A.  Drunkenness  by  Liquor  or  Drug. 

B.  Officers. 

1.  Post  commander  always  on  duty. 

2.  Medical  officer  always  on  duty. 

3.  Officer  drunk  when  reporting  for  duty. 

a.  Not  permitted  to  enter  upon  duty. 

C.  Soldiers. 

1.  Drunk  before  entrance  on  duty. 

D.  Right  Can  Not  be  Prejudiced  by  Regulations. 

XXXIX.  A.  "On  Post"  Defined Page  128 

XL.  A.  Unauthorized  Absence  from  Place  of  Guard. 
XLU.  A.  Misbehavior. 

B.  "On  Duty"  Defined. 
XLV.  A.  "Whosoever"  Defined. 

B.  "Enemy"  Defined Page  129 

C.  Relieving  May  be  Done  by  Exchange. 

1.  Exchange  of  money  for  commodities  distinguished  from  trading. 
XLVI.  A.  Mailing  of  Letter. 

B.  Material  Information  Communicated. 
XLVm.  A.  Restored  to  Duty  Without  Trial — Time  to  be  Made  Good. 

B.  United    States  May  Waive  its    Exercise  op  Soldier's    Lia- 

bility    Page  130 

C.  Convicted. 

1.  Sentence  does  not  include  discharge — time  to  be  good. 

2.  Need  not  be  mentioned  in  sentence. 

3.  Liability  remains  after  expiration  of  term  of  enlistment. 

4.  Conviction  disapproved. 

D.  Acquitted. 

E.  Time  Made  Good  Must  be  Military  Service. 

F.  Liability  Continues  After  One  Hundred  and  Third  Article 

OP  War  Has  Run. 

L.  A.  Does  Not  Create  Special  Offense Page  131 

lA.  A.  "Advising"  and  "Persuading"  Defined. 
Ln.  A.  Attendance  at  Church  Not  Military  Formation. 
B.  Attendance  at  Church  is  a  Duty. 


Article. 

13.  False  certificates. 

14.  False  muster. 

15.  Allowing  military  stores  to  be  dam- 


16.  Wasting  ammunition. 

17.  Losing  or  spoiling  horses,   accouter- 

ments,  etc. 

18.  Commanders  not  to  be  interested  in 

sale  of  victuals,  etc. 


Article. 

19.  Disrespectful  words  against  the  Presi- 

dent, etc. 

20.  Disrespect  toward  commanding  offi- 

cer. 

21.  Striking  a  superior  officer. 

22.  Mutiny. 

23.  Failing  to  resist  mutiny. 

24.  Quarrels  and  frays. 

25.  Reproachful  or  provoking  speeches. 


ABTICLES  OF   WAR:   SYNOPSIS. 


ii; 


Article. 
LIV.  A.  Includes  Damage  to  Person  or  Property. 

B.  Action  is  Mandatory Page  132 

C.  Assessment  op  Whole  Command. 

1.  Those  not  present  excepted. 

D.  In  Addition  to  Punishment. 

1.  By  civil  authorities. 

2.  By  military  authorities. 

E.  General  Court-Martl^l  Can  Not  be  Used  Instead  of  Board. 

F.  Procedure. 

1.  Men  in  the  Regular  Army. 

2.  Men  in  the  militia Page  133 

G.  Enforceable  in  Cuba  and  the  Philippine  Islands. 
H.  Can  Not  be  Enforced. 

1.  In  favor  of  military  persons. 

2.  In  case  of  embezzlement. 

LVm.  A.  Jurisdiction  of  Military  Court  Concurrent  with  Civil. 

B.  Sentence  to  be  Equal  to  or  Greater  than  Provided  by  State 

Law. 

C.  Local  Laws  of  Foreign  Country  Do  Not  Apply Page  134 

D.  Situation  in  Philippines  During  Military  Occupation. 
UX.  A.  Recognizes  Subordination  of  Military  to  Civil. 

B.  Requirement  "as  to  Application. 

C.  "  Laws  of  Land  "  Defined Page  135 

D.  Jurisdiction  Which  First  Attaches  Should  Try  Case. 

E.  Soldier  Should  Await  Formal  Application. Page  136 

F.  "Any  of  the  United  States"  Defined. 

G.  State  May  Make  Demand. 

1.  Then  undertakes  expense  of  man's  transportation. 

a.  To  place  of  trial. 

b.  And  return  to  station. 

(1)  Commanding  officer  should  impose  second  condition 

when  possible Page  137 

H.  Limited  to  Officers  and  Soldiers. 
I.  Does  Not  Apply. 

1.  To  time  of  war. 

2.  To  absent  officer  or  soldier. 

3.  To  offense  of  perjury. 

K.  Soldier  Returned  After  Surrender  Under  Fifty-Ninth  Article 

OF  War  Before  Conclusion  of  Case. 
L.  Homicide  by  Soldier. 

1,  At  post  in  United  States. 

2.  At  post  in  Philippines Page  138 


Article. 

26.  Challenges  to  fight  duels. 

27.  Allowing  persons  to  go  out  and  fight; 

seconds  and  promoters. 

28.  Upbraiding  another  for  refusing  chal- 

lenge. 

29.  Wrongs  to  officers,  redress  of. 

30.  Wrongs  to  soldiers,  redress  of, 

31.  Lying  out  of  quarters. 

31106°— 12 8 


Article. 

32.  Soldiers  absent  without  leave. 

33.  Absent  from  parade  without  leave. 

34.  One  mile  from  camp  without  leave. 

35.  Failing  to  retire  at  retreat. 

36.  Hiring  duty. 

37.  Conniving  at  hiring  duty. 

38.  Drunk  on  duty. 

39.  Sentiiiel  sleeping  on  post. 


114 


ARTICLES  OF  WAR:  SYNOPSIS. 


Article. 

LX.  A.  Offenses  by  Officers. 

1.  Duplication  of  pay  accounts. 

2.  Collusion  with  contractor. 

3.  Using  Government  property  for  private  purposes. 

a.  Even  temporary  use  of  Government  horses. 

4.  Failure  to  turn  over  public  money. 

5.  Inducing  civilian  to  make  fraudulent  lease Page  139 

B.  Offenses  by  Soldiers. 

1.  Forging  a  final  statement. 

2.  Falsifying  entry  in  clothing  book. 

C.  "Stealing"  Defined. 

D.  Misappropriation  Need  Not  Be  For  Private  Profit. 

E.  Liability  to  Trial  After  Separation  from  Service. 

1.  If  under  military  jurisdiction. 

2.  Of  Volunteers  or  militiamen  in  service  of  United  States. 

3.  Provision  not  yet  held  unconstitutional Page  140 

4.  Does  not  put  man  on  pay  basis. 

F.  Article  Not  Affected  by  Act  of  March  3,  1875. 

LXI.  A.  Conduct  Must  be  Manifestly  Unbefitting  Officer  and  Gentle- 
man. 

1.  Sufficient  if  morally  wrong. 
B.  Instances  of  Conduct  Unbecoming. 

1.  False  official  statement. 

2.  Preferring  false  accusation Page  141 

3.  Corruptly  influencing  vote  of  officer. 

4.  Appropriating  Government  property  to  personal  use. 

5.  Violation  of  pledge  by  officer. 

6.  Officer  drunk  in  public. 

7.  Disorderly  fighting  in  public. 

8.  Gambling  in  public  with  enlisted  men  by  officer. 

9.  Continued  dishonorable  nonpayment  of  debt. 

a.  After  assurance  of  payment. 

b.  Which  brings  discredit  upon  the  service Page  142 

c.  Money  borrowed  from  soldier. 

10.  Check  against  no  funds  in  bank. 

11.  Officer  charging  interest  on  loan  to  soldier. 

12.  Committing  bigamy. 

13.  Abusing  wife Page  143 

14.  Manufacture  of  false  testimony. 

15.  Duplication  of  pay  accounts. 


Article. 

40.  Quitting  guard,  etc.,  without  leave. 

11,  False  alarms. 

42.  Misbehavior  before  the  enemy,  cow 

ardice,  etc. 

43.  Compelling  a  surrender. 

44.  Disclosing  watchword. 

45.  Relieving  the  enemy. 

46.  Corresponding  with  the  enemy. 

47.  Desertion. 

48.  Deserter  shall  serve  full  term. 

49.  Desertion  by  resignation. 


Article. 

50.  Enlisting  in  other  regiment  without 

discharge. 

51.  Advising  to  desert. 

52.  Misconduct  at  divine  service. 

53.  Profane  oaths. 

54.  Officers  to  keep  good  order  in  their 

commands. 

55.  Waste   or   spoil   and    destruction   of 

property  without  orders. 

56.  Violence  to  persons  bringing  provi- 

sions. 


ARTICLES   OF   WAR:   SYNOPSIS. 


ii5 


Article. 
LXII.  A.  "Crimes"  Defined. 

B.  "To  THE  Prejudice"  Qualifies  Crime. 

C.  Offenses  Under  Sixty-second  Article  of  War. 

1.  Improper  publication  of  criticism  of  officer Page  144 

2.  Unauthorized  withdrawal  of  public  funds. 

3.  Failure  to  account  for  public  money  received Page  146 

4.  Unauthorized  payment  of  public  money. 

5.  Offenses  against  civilians. 

a.  If  on  duty — in  uniform,  etc. 

6.  Offenses  against  nature Page  147 

7.  Burglary. 

8.  Larceny.    (See  Larceny.) 

9.  False  swearing. 

10.  Improper  disposition  of  property. 

11.  Disrespectful  language  in  regard  to  officer  by  soldier. .  Page  148 

12.  Disobedience  of  noncommissioned  officer's  order. 

13.  Drunkenness  at  hour  for  duty. 

14.  Drunkenness  while  absent  without  leave. 

15.  Loaning  money  at  usurious  rates. 

16.  Disturbance  upon  private  premises. 

17.  Delays  return  when  permitted  to  leave  confinement, 

18.  Failure  to  obey  order. 

D.  Instances  of  Disorders  or  Neglect Page  149 

E.  Acts  Which  are  Not  Offenses  Under  Sixty-second  Article  of 

War Page  150 

F.  Manslaughter Page  151 

LXTTT.  A.  Punishment  of  Retainers  to  the  Camp. 

1.  Officers'  servants,  etc.,  punished  by  discharge. 

B.  Jurisdiction  Does  Not  Extend  to  Time  of  Peace. 

1.  Even  if  offense  committed  in  war. 

C.  Trials  Restricted  to  Imperative  Necessities. 

D.  Violation  of  Sixty-third  Article  of  War  Subjects  to  Trial  by 

General  Court-Martial Page  152 

E.  Forfeiture  Reverts  to  Proper  Appropriation. 
LXV.  A.  The  Leaving  Should  be  Deliberately  Insubordinate. 

B.  Regimental  Commander  is  Commanding  Officer. 

C.  Accused  Not  Entitled  to  Release  Until  Case  Acted  on. 
LXVI.  A.  Crimes  Defined. 

LXXI.  A.  "Ten  Days"  Means  After  Arrest. 

B.  List  of  Witnesses  May  be  Omitted. 

C.  "Except  at  Remote  Stations"  Explained, 

D.  Officer  Can  Not  Release  Himself Page  153 


Article. 
57. 
58. 
59. 


60. 


Gl. 


62, 


Forcing  a  safeguard. 

Certain  crimes  during  rebellion. 

Offenders  to  be  delivered  up  to  civil 

magistrates. 
Certain  kinds  of  frauds  against  the 

United  States. 
Conduct  unbecoming  an  officer  and 

gentleman. 
Crimes  and  disorders  to  prejudice  of 

military  discipline. 


Article. 

63.  Retainers  of  camp. 

61.  All  troops  subject  to  Articles  of  War. 

Arrest  of  officers  accused  of  crimes. 

Soldiers  accused  of  crimes. 

Receiving  prisoners. 

Report  of  prisoners. 

Releasing    prisoner    without  author- 
ity; escapes. 

Duration  of  confinement. 


65. 
66. 
67. 
68. 
69, 


70 


71.  Copy  of  charges  and  time  of  trial. 


116 


AKTICLES   OF  WAR:   SYNOPSIS. 


Article. 
LXXn.  A.  Authority  to  Order  Court-Martial  is  Attribute  of  Command. 

B.  Convening  Authority's  Decision  is   Final. 

C.  Division  Commander. 

1.  When  acting  as  department  commander. 

D.  Corps  Commander. 

1.  When  corps  is  a  separate  Army. 

E.  Staff  Officer. 

1.  Can  not  add  or  relieve  members .  Page  154 

F.  Army. 

1.  Of  Cuban  passification. 

G.  Officers  Not  Qualified  to  Order  Court. 

1.  Lieutenant  colonel. 

2.  Or  to  add  or  relieve  members. 
H.  Troops  Temporarily  in  Department. 

I.  Accuser. 

1.  Determined  mainly  by  "animus." 

a.  Inspector  reports  against  trial Page  155 

2.  When  denials  may  be  proved. 

3.  Does  not  become  accuser. 

a.  By  preparing  charges  by  order Page  156 

(1)  And  orders  department  judge  advocate  to  do  so. 
LXXm.  A.  Separate  Brigade  Defined. 

1.  Should  be  designated. 

2.  Provost  marshal's  command,  Manila,  P.I Page  157 

B.  No  Authority  to  Convene  Court. 

1.  When  separate  brigade  reduced  to  one  regiment. 

2.  Military  governor  of  a  district. 

3.  Force  on  transport  merely Page  158 

LXXV.  A.  Convening  Authority. 

1.  Decides  on  number  of  members. 
B.  Less  than  Five. 

1.  Can  not  organize  court. 

2.  Or  proceed  if  already  organized. 

3.  Can  not  dissolve  itself. 
LXXVn.  A.  Regular  Officer. 

1.  May  be  member  to  try  Philippine  scout. 

2.  May  be  judge  advocate  to  try  volunteers. 

3.  May  not  be  member  to  try  volunteers. 

LXXVin.  A.  Marine  Officer  Accused,  Some  Members  of  Court  Should  be 
Marines Page  159 


Article. 

72.  Who    may  appoint    general    courts- 

martial. 

73.  Commanders  of  divisions  and  sepa- 

rate brigades  may  appoint  in  time 
of  war. 

74.  Judge  advocate. 

75.  Members  of  general  courts-martial. 

76.  When  requisite  number  not  at  a  post. 

77.  Regular  officers,  on  what  courts  may 

sit. 


Article. 

78.  Marine    and    Regular   Army  officers 

associated  on  courts. 

79.  Officers    triable    by   general    courts- 

martial. 

80.  Field  officers'  courts. 

81.  Regimental  courts. 

82.  Garrison  courts. 

83.  Jurisdiction  of  inferior  courts. 

84.  Oath  of  members  of  courts-martial. 

85.  Oath  of  judge  advocate. 


ARTICLES   OF   WAR:   SYNOPSIS. 


117 


Article. 
LXXXn.  A.  Officer  Commanding. 

1 .  Not  limited  as  to  rank Page  159 

2.  Can  not  detail  himself. 

B.  "Other  Place"  Defined. 

C.  "Different  Corps." 

1.  One  man  does  not  make  corps. 

2.  Commanding  Officer,  Army  and  Navy  General  Hospital,  Hot 

Springs,  Ark. 
LXXXm.  A.  Graver  Offenses  Not  Tried  by  Inferior  Court Page  160 

B.  Capital  Offenses. 

1.  Charge  under  twenty-first  article  of  war  can  not  be  tried. 

C.  Limitations  Refer  to  Single  Sentence. 

1.  Forfeitures. 

a.  Limited  to  one  month's  pay. 

2.  Reduction  to  ranks. 

LXXXrV.  A.  Oath,  How  Administered Page  161 

B.  "The  Matter  Before  Them"  Defined. 

C.  "Not  Divulge  the  Sentence." 

1.  Object  of  this  provision. 

2.  Not  even  in  the  record. 

3.  Reopening  of  court  for  previous  convictions Page  162 

4.  Not  even  to  the  clerk, 

LXXXVI.  A.  Court  Exercises  Authority  Over  Acts  in  Its  Presence  Only. 
1.  May  exclude  a  spectator. 
B.  Contempt. 

1.  May  be  punished  under  this  article. 

a.  Procedure. 

b.  A  civilian's  refusal  to  testify  is  not  contempt Page  163 

LXXXVm.  A.  Grounds  for  Challenge. 

B.  Insufficient  Grounds  for  Challenge. 

C.  Challenge  Should  be  Made  at  Proper  Stage  of  Procedure. 

D.  Court  as  a  Whole  Not  Subject  to  Challenge. 
XCI.  A.  Evidence  of  High  Public  Officers. 

1.  Should  be  taken  by  deposition. 

B.  Deposition  Must  be  Submitted  as  a  Whole Page  164 

C.  If  Not  Tendered,  Other  Party  May  Use  It. 

D.  Depositions  Taken  Abroad. 

E.  Court  Can  Not  Exclude  Deposition. 

F.  Reasons  for  Not  Receiving  Deposition. 

G.  Authority  of  Court  Over  Deposition. 

H.  Not  a  Violation  of  Sixth  Amendment  fo  Constitution. 

I.  Can  Not  be  Read  in  Capital  Cases, Page  165 

K.  Witness  Resides  Within  the  State. 


Article. 

86.  Contempts  of  court. 

87.  Behavior  of  members. 

88.  Challenges  by  prisoner. 

89.  Prisoner  standing  mute. 

90.  Judge    advocate,     prosecutor, 

counsel  for  prisoner. 

91.  Depositions. 

92.  Oath  of  witness. 

93.  Continuances. 


and 


Article. 

94.  Hours  of  sitting. 

95.  Order  of  voting. 

96.  Sentence  of  death. 

97.  Penitentiaries. 

98.  Flogging. 

99.  Discharge  and  dismissal  of  officers. 

100.  Publication  of  officers  cashiered  for 

cowardice  or  fraud. 

101.  Suspension  of  officers'  pay. 


118 


ARTICLES   OF   WAR:    SYNOPSIS. 


C. 


Article. 
XCm.  A.  Good  Grounds  for  Continuance. 

1.  To  procure  counsel. 

2.  Copy  of  charges  differs  materially  from  original. 

XCVI.  A.  Sentence  of  Death  is  Supported  by  Finding  on  One  Capital 
Charge. 
B.  Court  Can  Not  Designate  Time  or  Place. 
XCVn.  A.  Prohibits  Confinement  in  Penitentiary  for  Military  Offenses. 

Authorizes  Penitentiary  Sentence Page  166 

"Penitentiary"  Defined. 

In  Fixing  Sentence  Court  Should  Consult  Statute. 

Case  of  Conviction  of  Several  Offenses. 

** Cowardice "  and  "Fraud "  Defined. 

B.  What  Constitutes  Publication Page  167 

cn.  A.  "Jeopardy"  Means  Conviction  or  Acquittal. 

1.  Without  regard  to  action  of  reviewing  authority. 

B.  Cases  of  "No  Second  Trial." 

C.  One  Act,  but  Two  Offenses Page  168 

1.  Murder  and  a  military  offense. 

a.  Case  of  officer Page  169 

b.  Case  of  soldier. 

2.  Manslaughter  and  mutiny. 

D.  Same  Offense  Charged  under  New  Article. 

E.  Fraudulent  Enlistment. 
1,  Can  not  try  separately  for  two  misrepresentations. 

F.  Reconsideration  not  a  Second  Trial Page  170 

G.  Trial  by  Court  of  Inquiry  not  a  Former  Trial. 
Sentinel  Commits  Homicide. 

1.  On  escaping  prisoner. 

2.  On  innocent  bystander Page  171 

Soldier  Assaults  a  Civilian. 
"Order  for  Trial"  Defined. 
Impediment. 

1.  Mere  concealment  is  not. 

2.  Allegation  of. 

Limits  Forty-eighth  and  Sixtieth  Articles  of  War Page  172 

Limitation  is  Matter  of  Defense. 

"Absence"  Defined  as  "Fleeing  from  Justice." 


cm. 


H. 


c. 

D. 
E. 
F.  Desertion. 


1.  Begins  to  run  at  end  of  term. 

2.  Does  not  run  in  time  of  war Page  US 

a.  Desertion  in  Boxer  uprising  was  in  time  of  war. 

3.  Second  desertion  before  expiration  of  term  of  enlistment  add  two 

years  to  unexpired  portion  of  term. 


Article. 

102.  No  person  tried  twice  for  same  of- 

fence. 

103.  limitation  of  time  of  prosecution. 

104.  Approval  of  sentence  by  officer  or- 

dering court. 

105.  Confirmation  of  death  sentence. 

106.  Confirmation  of  dismissals  in  time 

of  peace. 


Article. 

107.  Dismissal    by    division    or    brigade 

courts. 

108.  General  officers,  sentences  respect- 

ing. 

109.  Confirmation     by    officer    ordering 

court. 

110.  Confirmation  of  field  officers'   sen- 

tences. 


ARTICLES   OF   WAR:   SYNOPSIS. 


119 


Article. 

Cin.  F.  Desertion — Continued. 

4.  Second  desertion  after  expiration  of  term  of  enlistment  add 

two  years  to  portion  of  term  yet  unserved  under  the  forty- 
eighth  article  of  war. 

5.  In  time  of  peace  even  if  there  is  an  enemy,  statute  runs  unless  the 

desertion  is  in  face  of  the  enemy. 

6.  A  deserter  working  on  a  transport  in  the  Philippine  Islands  was 

not  absent  from  the  United  States. 

G.  Article  Applies  to  Escape Page  174 

H.  In  Fraudulent  Enlistment  Except  Without  Discharge  Limita- 
tion Runs  from  Date  op  Last  Receipt  of  Pay  or  Allowances. 
CIV.  A.  Approval. 

1.  Should  be  recorded  even  though  President's  action  is  necessary. 

2.  Should  be  formal  in  character. 

B.  Accused  Transferred  Out  of  Department;  Former  Department 

Commander  Acts  on  Case. 

C.  Officer  Commanding  for  the  Time  Being. 

1.  Successor  to  the  command. 

a.  Should  so  indicate  on  record Page  175 

b.  Not  limited  to  rank. 

2.  Corps  commander  when  division  is  discontinued. 

3.  Division  commander  when  separate  brigade  is  merged  with  divi- 

sion. 

4.  Department  commander  when  post  discontinued. 

5.  Senior  line  officer  present  and  for  duty. 

a.  When  department  commander  is  ill. 
CVI.  A.  Department  Commander  in  Time  op  War  May  Confirm. 

CXI.  A.  Procedure Page  176 

CXn.  A.  Authority  to  Pardon. 

1.  Can  not  be  delegated. 

a.  Does  not  include  authority  to  commute. 

(1)  Even  in  time  of  war. 

b.  Or  to  substitute. 

c.  Continues  after  approval Page  177 

(1)  Except  as  to  dishonorably  discharged  soldiers  sentenced 
to  confinement  in  military  prison  or  penitentiary. 

B.  "Mitigation"  Defined. 

C.  Illegal  Sentence  can  not  be  Mitigated. 

D.  Dishonorable  Discharge  can  not  be  Mitigated. 

E.  Power  of  Mitigation  of  Sentence  of  Inferior  Court  is  in  Actual 

Commanding  Officer. 
CXrv.  A.  Copy,  How  Obtained Page  178 


Article. 

111.  Suspension  of  sentence  of  death  or 

dismissal. 

112.  Pardon  and  mitigation  of  sentences. 

113.  Proceedings    forwarded    to    Judge 

Advocate  General. 

114.  Party  entitled  to  a  copy. 

115.  Courts  of  inquiry,  how  ordered. 

116.  Members  of  court  of  inquiry. 


Article. 

117.  Oaths  of  members  and  recorder  of 

court  of  inquiry. 

118.  Witnesses  before  courts  of  inquiry.  - 

119.  Opinion,  when  given  by. 
Authentication    of    proceedings    of 

court  of  inquiry. 
Proceedings  of  court  of  inquiry  used 
as  evidence. 


120. 


121. 


120 


ARTICLES   OF   WAR  III  A. 


Article. 
CXV.  A.  Court  of  inquiry  is  not  a  Demandable  Right. 
B.  Court  op  Inquiry  is  a  Board  and  not  a  Court, 
CXIX.  A.  Opinion  Confined  to  Special  Question. 

B.  Minority  Report  Permitted Page  179 

CXXI.  A.  Proceedings  May  be  Used  to  Impeach  Witness. 
CXXn.  A.  Marine  Corps  Officers  Require  President's  Order  to  Assume 
Command  in  the  Army. 
B.  At  Joint  Maneuvers  Militia  Officers  can  not  Assume  Command 
of  Regular  Officers. 
CXXVI.  A.  Company  Commander  May  Convert  Effects  of  Deceased  Soldier 

into  Cash Page  180 

CXXVn.  A.  Upon  Accounting  to  Representative,  Responsibility  Ends. 
B.  Legal  Representative  Defined. 


Ill  A.  Held,  that  the  words ' 'infamous  criminal  offense "  used  in  the 
third  article  of  war  mean  an  offense  punishable  by  imprisonment  in  a 
penitentiary  or  by  death.     C.  9490,  Dec.  9,  1911. 

VIII  A.  This  article  does  not  refer  to  funds.^  R.  30,  598,  Aug., 
1870;  82,  675,  May,  1872;  S3,  188,  July,  1872;  38,  526,  Mar.,  1877. 

XVII  A.  The  description,  ^^liis  clothing,"  refers  to  articles  thereof 
which  are  regularly  issued  to  the  soldier  for  his  use  in  the  service  and 
with  the  safe-keepmg  of  which  he  is  charged.  His  property  in  them  is 
qualified  by  the  trust  that  he  can  not  dispose  of  them  while  he  is  in  the 
military  service,  and  can  only  use  them  for  military  purposes.^  P. 
59,  196,  Apr.,  1893;  0.  16107,  Apr.  2,  190^.^ 

XVII  B.  Only  three  offences  are  made  punishable  by  this  article — 
selling,  through  neglect  losing,  and  through  neglect  spoiling,  the 
property  named  therein.  Any  other  form  of  wrongful  disposition 
should  be  made  the  subject  of  a  charge  under  article  60  or  article  62. 
P.  26,  238,  Aug.,  1888;  C.  17U2,  Jan.  23,  1905. 

XVII  C.  This  article  is  quite  independent  of  the  Army  Regula- 
tions, relating  to  surveys  of  property.  The  surveying  officer  passes 
upon  questions  of  pecuniary  responsibility  for  the  loss,  &c.,  of  public 
property.  The  court-martial,  under  this  article,  simply  imposes 
punislimenV     R.  37,  352,  Feb.  28,  1876;  P.  59,  196,  Apr.  28,  1893. 

XIX  A.  When  a  trial  of  an  officer  or  soldier  has  been  resorted  to 
under  this  article,  it  has  usually  been  on  account  of  the  use  of  ''con- 


Article. 

122.  Command  when  different  corps  hap- 
pen to  join. 
Regular  and  volunteer  officers  on 

same  footing  as  to  rank,  etc. 
Rank   of   militia   officers   on    duty 
■with  officer  of  regular  or  volun- 
teer forces. 


123. 


124. 


Article. 

125.  Deceased  officers'  effects. 
Deceased  soldiers'  effects. 
Effects  of  deceased  officers  and  sol- 
diers to  be  accounted  for. 
Articles  of  War  to  be  published  once 
in  six  months  to  every  regiment, 
etc. 


126 
127 


128. 


^  See,  as  sustaining  the  text,  G.  C.  M.  O.  12,  19,  War  Department,  1872,  and  36,  of 
1877. 

2  See  ruling  of  reviewing  officer  in  G.  O.  35,  Dept.  of  the  East,  1869;  and  see  also  do. 
31,  Dept.  of  the  South,  1877;  G.  C.  M.  O.  15,  Dept.  of  Texas,  1880;  all  sustain  the  text. 
Clothing  issued  in  kind  does  not  become  private  property.  (See  Clothing  allowance 
under  Pay  and  allowances.) 

3  Where  a  trial  is  had,  the  proceedings  of  a  board  of  survey,  already  ordered  in  the 
same  case,  will  not  be  competent  evidence  to  prove  the  fact  of  the  loss,  &c.,  charged. 
G.  C.  M.  O.  45,  Dept.  of  the  Missouri,  1877;  do.  15,  Dept.  of  Texas,  1877. 


AKTIOLES  OF  WAR  XXI  A.  121 

tempt uous  or  disrespectful  words  against  the  President,"  or  the 
Government  mainly  as  represented  by  the  President.  The  delib- 
erate employment  of  denunciatory  or  contumelious  language  in 
regard  to  the  President,  whether  spoken  in  public,  or  published,  or 
conveyed  in  a  communication  designed  to  be  made  public,  has,  in 
repeated  cases,  been  made  the  subject  of  charges  and  trial  under 
this  article;^  and,  where  taking  the  form  of  a  hostile  arraignment, 
by  an  officer,  of  the  President  or  his  administration,  for  the  measures 
adopted  in  carrying  on  the  Civil  War — a  juncture  when  a  peculiar 
obedience  and  Reference  were  due,  on  the  part  of  the  subordinate, 
to  the  President  as  executive  and  commander  in  chief — was  in 
general  punished  by  a  sentence  of  dismissal.  R.  5,  4^1,  Dec,  1863; 
20,  516,  Apr.,  1866.  On  the  other  hand,  it  was  held  that  adverse 
criticisms  of  the  acts  of  the  President,  occurring  in  political  discus- 
sions, and  which,  though  characterized  by  intemperate  language, 
were  not  apparently  intended  to  be  disrespectful  to  the  President 
personally  or  to  liis  office,  or  to  excite  animosity  against  him,  were 
not  in  general  to  be  regarded  as  properly  exposing  officers  or  soldiers 
to  trial  under  this  article.  To  seek  indeed  for  ground  of  offence  in 
such  discussions  would  ordinarily  be  inquisitorial  and  beneath  the 
dignity  of  the  Government.     R.  5,  491,  Dec,  1863. 

XXI  A.  The  ''superior  officer"  in  the  sense  of  this  article,  need  not 
necessarily  have  been  the  commanding  officer  of  the  accused  at  the 
time  of  the  offence.  The  article  is  thus  broader  than  article  20, 
which  relates  only  to  an  offence  against  a  '' commanding  officer." 
R.  19,  248,  Dec,  1865. 

XXI  B.  The  offence  of  disobedience  of  orders  contemplated  by 
this  article,  consists  in  a  willful  refusal  or  neglect  to  comply  with  a 
specific  order  to  do  or  not  to  do  a  particular  thing.  A  mere  failure 
to  perform  a  routine  duty  is  properly  charged  under  article  62. ^ 
R.  33,  280,  Aug.,  1872.  Where  an  officer  neglected  fully  to  perform 
his  duty  under  general  instructions  ^iven  him  in  regard  to  the  con- 
duct of  an  expedition  against  Indians;  held  that  his  offence  was 
properly  chargeable  not  under  the  twenty-first  but  under  the  sixty- 
second  article.  R.  38,  454,  Feb.,  1877;  C.  16150,  Apr.  6,  1904; 
20968,  Jan.  18,  1907;  2885,  Nov.  11,  1909. 

XXI  B  1.  Held  that  the  refusal  by  a  soldier  to  pay  a  debt  legally 
contracted  with  the  company  tailor,  soldier,  or  civilian  is  a  violation 
of  the  twenty-first  article  of  war.^    P.  33,  22,  June  10,  1889. 

XXI  B  2.  Held,  that  the  refusal  of  a  soldier,  when  properly  de- 
tailed for  that  duty,  to  cook  for  a  mess  of  civiHan  teamsters  who  were 
regular  employees  of  the  miUtary  estabfishment  and  a  constituent 
part  of  the  command,  was  a  violation  of  the  twenty-first  article  of 
war.     P.  28,  342,  Dec  3,  1888. 

XXI  C  1  a.  Held,  that  the  refusal  of  a  commissioned  officer  to  sign 
a  certfficate,  as  the  facts  set  forth  in  such  certificate  were  not  within 

1  See  cases  in  G.  C.  M.  0.  43,  War  Dept.,  1863;  G.  0.  171,  Army  of  the  Potomac, 
1862;  do.  23,  id.,  1863;  do.  52,  Middle  Dept.,  1863;  do.  119,  Dept.  of  the  Ohio,  1863; 
do.  33,  Dept.  of  the  Gulf,  1863;  do.  68,  Dept.  of  Washington,  1864;  do.  86,  Northern 
Dept.,  1864;  do.  1,  id.,  1865;  do.  29,  Dept.  of  N.  C,  1865. 

2  See  G.  C.  M.  0.  26,  War  Dept.,  1872;  do.  7,  Dept.  of  Texas,  1874;  G.  O.  24,  35, 
Fifth  Mil.  Dist.,  1868. 

3  See  sec.  1220,  R.  S.,  and  act  of  Mar.  2,  1889  (25  Stat.,  831).  See  also  Circular 
8,  A.  G.  O.,  1896,  which  by  construction  extends  the  regulation  to  include  civilian 
tailors. 


122  ARTICLES   OF   WAR   XXI   C   2   a. 

his  knowledge,  was  not  a  violation  of  the  twenty-first  article  of  war. 
B.  49,  22/^,  July  18,  1885. 

XXI  C  2  a.  Held,  that  the  refusal  of  a  soldier  to  comply  with  an 
order  to  act  as  an  officer's  servant  is  not  a  violation  of  the  twenty- 
first  article  of  war.^     R.  U,  SO,  July  21 ,  1880;  _  C.  22^04,  Nov.  25, 1907. 

XXI  C  2  b.  Held,  that  the  refusal  of  a  soldier  to  contract  marriage 
when  ordered  to  do  so  was  not  a  violation  of  the  twenty-first  article 
of  war.     B.  38,  47,  Apr.  18,  1876. 

XXI  C  2  c.  Held,  that  the  refusal  by  a  member  of  a  post  band  to 
obey  an  order  of  a  post  commander  to  play  in  a  neighboring  town  for 
the  pleasure  of  the  mhabitants  was  not  a  violation  of  the  twenty-first 
article  of  war.     B.  27,  520,  Feb.  6,  1869.^ 

XXI  C  2  d.  A  soldier  refused  to  submit  to  the  prophylactic  treat- 
ment required  by  War  Department  orders  ^  as  a  preventative  against 
typhoid  fever,  declaring  that  he  is  in  a  healthy  condition  physically 
and  that  it  is  his  religious  behef  that  the  body  under  such  conditions 
should  not  be  tampered  with.  Held,  that  cases  of  this  character  are 
peculiar  in  that  they  affect  the  person  of  the  soldier  and  are  somewhat 
out  of  the  line  of  regular  military  service  in  which  unquestioning 
obedience  is  essential,  and  the  infliction  of  punishment  in  such  cases 
would  be  regarded  differently  than  if  it  were  infhcted  for  a  violation 
of  orders  directly  pertaining  to  the  mihtary  service.  Suggested  that 
the  soldier's  request  to  be  permitted  to  purchase  his  discharge  rather 
than  submit  to  the  prophylactic  treatment  be  approved.  C.  11753, 
Jan.  26,  1912.  In  the  meantime  the  soldier  had  been  tried,  con- 
victed, and  sentenced  to  dishonorable  discharge,  forfeiture,  and  con- 
finement for  six  months.  The  soldier  upon  being  informed  that  his 
application  for  purchase  of  discharge  would  be  approved  declined  to 
make  such  application.  Under  the  new  conditions  presented  it  was 
recommended  that  the  soldier  be  discharged  without  honor.  C.  11753, 
Feb.  9,  1912. 

XXI  D.  When  a  soldier  receives  an  order  of  doubtful  legality,  it 
is  his  duty  to  obey  it  and  seek  redress  afterwards.  Held,  that  if  he 
elects  in  such  a  case  to  disobey  the  order  in  the  first  instance  his 
action  is  an  offense  under  the  sixty-second  article  of  war.  Thus,  in 
a  particular  case  where  an  illiterate  soldier  who  was  unable  to  sign 
his  name  was  furnished  with  a  written  exhibit  of  his  name  and 
ordered  to  continue  to  copy  the  same  until  he  could  reproduce  it, 
and  he  refused,  his  refusal  was  an  offense  under  the  sixty-second 
article  of  war.     P.  27,  484,  Nov.,  1888;  C.  9709,  June  26,  1901. 

XXI  E  1.  Where  a  soldier  kills  his  superior  officer  on  a  military 
reservation  over  which  jurisdiction  has  been  ceded  to  the  United 
States,  held  that  he  may  be  tried  for  murder  in  the  proper  Federal 
criminal  court,  or  for  manslaughter  under  the  sixty-second  article  of 
war,  and  for  shooting  his  superior  officer  in  violation  of  the  twenty- 
first  article  of  war.     C.  25267,  July  13,  1909. 

XXI  E  2.  Held  that  the  fact  that  capital  sentences  have  been 
imposed  and  executed  in  time  of  war  for  a  violation  of  the  twenty- 

^  See  section  1232,  R.  S.,  which  forbids  officers  to  use  an  enlisted  man  as  a  servant 
in  any  case  whatever.  See  G.  C.  M.  O.  130,  Department  of  Dakota,  1879,  which  pub- 
lishes the  proceedings  of  a  trial  in  which  a  soldier  was  convicted  of  disobedience  of 
orders  in  refusing  to  assist  in  building  a  private  stable  for  an  officer,  and  the  finding 
was  disapproved  on  the  ground  that  such  an  order  was  not  lawful. 

2  See  G.  O.  No.  134,  War  Department,  1911. 


ARTICLES  OF   WAR  XXII   A.  123 

first  article  does  not  operate  to  deprive  a  court-martial  of  power  to 
impose  an  adequate  punishment  in  a  case  in  which  an  offense  com- 
mitted in  violation  of  the  article  in  time  of  peace  is  sufficiently  aggra- 
vated in  character  to  warrant  the  imposition  of  a  capital  sentence, 
and  that  in  the  case  in  reference  (the  willful  killing  of  a  superior  officer 
by  a  noncommissioned  officer)  the  circumstances  attending  the  offense 
were  such  as  to  warrant  the  imposition  of  a  capital  sentence  and  the 
recommendation  that  the  sentence  imposed  be  confirmed  and  carried 
into  execution.!     C.  21568,  May  1,  1907. 

XXII  A.  Mutiny  at  military  law  may  be  defined  to  be  an  unlawful 
opposing  or  resisting  of  lawful  military  authority,  with  intent  to  sub- 
vert the  same,  or  to  nullify  or  neutrahze  it  for  the  time.^  It  is  tliis 
intent  which  distinguishes  mutiny  from  other  offenses,  and  especially 
from  those,  with  which,  to  the  embarrassment  of  the  student,  it  has 
frequently  been  confused,  viz,  those  punishable  by  the  twenty-first 
article,  as  also  those  which,  under  the  name  of  ''mutinous  conduct," 
are  merely  forms  of  violation  of  article  62.  The  offenses  made  pun- 
ishable by  article  22  are  not  necessarily  '' aggregate  "  or  joint  offenses.^ 
P.  26,  284,  Sept.,  1887.  Among  them  is  the  beginning  or  causing  of  a 
mutiny — which  may  be  committed  by  a  single  person.  In  general, 
however,  the  offense  here  charged  will  be  a  concerted  proceeding;  the 
concert  itself  going  far  to  establish  the  intent  necessary  to  the  legal 
crime.  To  charge  as  a  capital  offense  under  this  article  a  mere  act 
of  insubordination  or  disorderly  conduct  on  the  part  of  an  individual 
soldier  or  officer,  unaccompanied  by  the  intent  above  indicated,  is 
irregular  and  improper.*  Such  an  act  should  in  general  be  charged 
under  articles  20,  21,  or  62.  R.  29,  671,  Jan.,  1870;  38,  199,  July, 
1876. 

XXII  B.  Soldiers  can  not  properly  be  charged  with  the  offense  of 
joining  in  a  mutiny  under  this  article,  where  their  act  consists  in 
refusing,  in  combination,  to  comply  with  an  unlawful  order.  Thus 
where  a  detachment  of  volunteer  soldiers,  who,  undfer  and  by  virtue 
of  acts  of  Congress  specially  authorizing  the  enlistment  of  volunteers 
for  the  purpose  of  the  suppression  of  the  rebellion,  and  with  the  full 
understanding  on  their  part,  and  that  of  the  officers  by  whom  they 
were  mustered  into  the  service,  that  they  were  to  be  employed  solely 
for  this  purpose,  entered  into  enlistments  expressed  in  terms  to  be 
for  the  war,  and  after  doing  faithful  service  during  the  war,  and  just 
before  the  legal  end  of  the  war,  but  when  it  was  practically  termi- 
nated, and  when  the  volunteer  organizations  were  being  mustered 
out  as  no  longer  required  for  the  prosecution  of  the  war,  were  ordered 
to  march  to  the  plains  and  to  a  region  far  distant  from  the  theater 
of  the  late  war  and  engage  in  fighting  Indians,  whoUy  unconnected 

1  The  soldier  was  executed  July  27,  1907. 

2  Compare  the  definition  and  description  of  mutiny  or  revolt  at  maritime  law,  in 
the  United  States  v.  Smith,  1  Mason,  147;  United  States  v.  Haines,  5  id.,  272,  276; 
United  States  v.  Kelly,  4  Wash.,  528;  United  States  v.  Thompson,  1  Sumner,  168,  171; 
United  States  v.  Borden,  1  Sprague,  374,  376. 

3  Samuel,  254,  257;  G.  O.  77,  War  Dept.,  1837;  do.  10,  Dept.  of  the  Missouri,  1863. 
*  See  G.  O.  7,  War  Dept.,  1848;  do.  115,  Dept.  of  Washington,  1865;  G.  C.  M.  O.  73, 

Dept.  of  the  Missouri,  1873.  And  compare  United  States  v.  Smith,  1  Mason,  147; 
United  States  v.  Kelly,  4  Wash.,  528;  United  States  v.  Thompson,  1  Sumner,  168,  171. 


124  ARTICLES   OF   WAR  XXIV  A. 

as  allies  or  otherwise  with  the  recent  enemy,  and  thereupon  refused, 
together,  to  comply  with  such  orders,  held  that  they  were  not  charge- 
able with  mutiny.  While  by  the  strict  letter  of  their  contracts  they 
were  subject  to  be  employed  upon  any  military  service  up  to  the  last 
day  of  their  terms  of  enlistment,  the  public  acts  and  historjr  of  the 
time  made  it  perfectly  clear  that  this  enlistment  was  entered  into  for 
the  particular  purpose  and  in  contemplation  of  the  particular  service 
above  indicated,  and  to  treat  the  parties  as  bound  to  another  and 
distinct  service,  and  liable  to  capital  punishment  if  they  refused  to 
perform  it,  was  technical,  unjust,  and  in  substance  illegal.  R.  4^, 
624,  Mar.,  1880. 

XXIV  A.  See  footnote.^ 

XXV  A.  Article  25  confers  no  jurisdiction  or  power  to  punish  on 
courts-martial,  but  merely  authorizes  the  taking  of  certain  measures 
of  'prevention  and  restraint  by  commanding  officers;  i.  e.,  measures 

f)reventive  of  serious  disorders  such  as  are  indicated  in  the  two  fol- 
owing  articles  relating  to  duels.     R.  28,  650,  June,  1869. 

XXVI  A.  To  establish  that  a  challenge  was  sent,  there  must  appear 
to  have  been  communicated  by  one  party  to  the  other  a  deliberate 
invitation  in  terms  or  in  substance  to  engage  in  a  personal  combat 
with  deadly  weapons,  with  a  view  of  obtaining  satisfaction  for 
wounded  honor.^  The  expression  merely  of  a  willingness  to  fight,  or 
the  use  simply  of  language  of  hostility  or  defiance,  will  not  amount  to 
a  challenge.  On  the  other  hand,  though  the  language  employed  be 
couched  in  ambiguous  terms,  with  a  view  to  the  evasion  of  the  legal 
consequences,  yet  if  the  intention  to  invite  to  a  duel  is  reasonably  to 
be  implied — and,  ordinarily,  notwithstanding  the  stilted  and  obscure 
verbiage  employed  this  intent  is  quite  transparent — a  challenge  will 
be  deemed  to  have  been  given.  And  the  intention  of  the  message 
where  doubtful  upon  its  face,  may  be  illustrated  in  evidence  by  proof 
of  the  circumstances  under  which  it  was  sent,  and  especially  of  the 
previous  relations  of  the  parties,  the  contents  of  other  communica- 
tions between  them  on  the  same  subject,  etc.^    And  technical  words 

^  It  is  a  principle  of  the  common  law  that  any  bystander  may  and  should  arrest  an 
affrayer.  1  Hawkins,  P.  C,  c.  63,  s.  11;  Timothy  v.  Simpson,  1  C.  M.  &  R.,  762,  765; 
Phillips  V.  Trull,  11  Johns,  486,487.  And  that  an  officer  or  soldier,  by  entering  the 
military  service,  does  not  cease  to  be  a  citizen,  and  as  a  citizen  is  authorized  and 
bound  to  put  a  stop  to  a  breach  of  the  peace  committed  in  his  presence,  has  been 
specifically  held  by  the  authorities.  Burdette  v.  Abbott,  4  Taunt. ,  449 ;  Bowyer,  Com. 
on  Const.  L.  of  Eng. ,  449 ;  Simmons  sees.  1096-1100.  This  article  is  thus  an  application 
of  an  established  common  law  doctrine  to  the  relations  of  the  military  service.  See 
its  application  illustr^'ted  in  the  following  General  Orders:  G.  O.  4,  War  Dept.,  1843; 
do.  63,  Dept.  of  the  Tennessee,  1863;  do.  104,  Dept.  of  the  Missouri,  1863;  do.  52, 
Dept.  of  the  South,  1871;  do.  92,  id.,  1872. 

2  Compare  the  definition  in  2  Wharton,  Cr.  L.  sees.  2674-2679. 

3  On  the  general  subject  of  challenges,  and  the  question  what  constitutes  a  chal- 
lenge, see  the  principal  cases  of  the  sending  of  challenges  in  our  service,  as  published 
in  G.  O.  64,  A.  G.  O.,  1827;  do,  39,  41,  id.,  1835;  do.  2,  War  Dept.,  1858;  do.  330, 
id.,  1863;  do.  11,  Army  of  the  Potomac,  1861;  do.  46,  Dept.  of  the  Gulf,  1863;  do.  223, 
Dept.  of  the  Missouri,  1864;  do.  130,  id.,  1872;  do,  33,  Dept.  &  Army  of  the  Tennessee, 
1864.  And  compare  Commonwealth  v.  Levy,  2  Wheeler,  Cr.  C.  245;  do.  v.  Tibbs, 
1  Dana,  524;  do.  v.  Hart,  6  J.  J.  Marsh,  119;  State  v.  Taylor,  1  S.  C,  108;  do.  v.  Strick- 
land, 2  Nott  &  McCord,  181;  Ivey  v.  State,  12  Ala.,  277;  Aulger  v.  People,  34  Ills., 
486;  2  Bishop,  Cr.  L.,  sec.  314;  Samuel,  384-387. 


ARTICLES  OF  WAR  XXIX  A.  125 

in  an  alleged  challenge  may  be  explained  by  a  reference  to  the  so- 
called  dueling  code.i    R.  39,  ^7,  Oct.,  1877. 

XXIX  A.  The  twentv-ninth  article  of  war  is  expressly  limited  in 
its  terms  to  wrongs  alleged  to  have  been  committed  by  regimental 
commanders,  and  does  not  apply  to  other  commanding  officers. 
R.  55,  365,  Mar.  22,  1888;  C.  18317,  July  19,  1905;  18387,  Aug.  4, 
1905;  18415,  Aug.  11,  1905;  23840,  Sept.  10,  1908;  24632,  Apr.  21, 
1909. 

XXIX  B.  Held  that  when,  in  the  course  of  his  duty,  a  regimental 
commander  reports  facts  on  an  officer's  efficiency  report,  the  officer 
is  not  wronged  in  the  sense  of  the  twenty-ninth  article  of  war,  unless 
it  is  clearly  shown  that  the  report  by  the  regimental  commander  was 
malicious  and  was  not  dictated  by  a  true  sense  of  duty.  C.  23840, 
Sept.  16  and  26,  1908,  and  Oct.  6,  1909. 

XXX  A.  This  article  is  not  inconsistent  with  article  83,  which  pro- 
liibits  regimental  courts  from  trying  commissioned  officers.  It  does 
not  contemplate  or  provide  for  a  trial  of  an  officer  as  an  accused,  but 
simply  an  investigation  and  adjustment  of  some  matter  in  dispute — 
as,  for  example,  a  question  of  accountabihty  for  public  property,  of 
right  to  pay,  or  to  an  allowance,  of  relief  from  a  stoppage,  etc.  The 
regimental  court  does  not  really  act  as  a  court  but  as  a  board,  and  the 
'* appeal"  authorized  is  practically  from  one  board  to  another.^  But 
though  the  regimental  court  has  no  power  to  find  ''guilty"  or  '^not 
guilty,"  or  to  sentence,  it  should  come  to  some  definite  opinion  or 
conclusion — one  sufficiently  specific  to  allow  of  its  being  intelligently 
reviewed  by  the  general  court  if  desired.  R.  23,  631,  July,  1867;  28, 
113,  Aug.,  1868;  29,  227,  Aug.,  1869;  30,  81,  Feh.,  1870;  32,  588, 
May,  1872;  C.  25975,  Dec.  27,  1909;  24632,  Mar.  16,  1909. 

XXX  B.  The  proceeding  under  this  article,  not  being  a  trial,  is  not 
affected  by  the  nmitation  of  the  one  hundred  and  third  article.  Due 
diligence,  however,  should  be  exercised  in  presenting  the  complaint, 
and  a  delajr  in  a  certain  case  to  do  so  for  three  years  (not  satisfac- 
torily explained),  Tield  unreasonable  and  properly  treated  by  the  court 
as  seriously  prejudicing  the  complaint.     R.  31,  4^2,  June,  1871. 

XXX  C.  The  authority  to  summon  a  regimental  court  under  this 
article  is  vested  in  terms  in  the  regimental  commander.  A  depart- 
ment or  other  superior  commander  can  not  properly  exercise  such 
authority,  nor  will  his  order  add  to  the  vahdity  or  effect  of  the  pro- 
ceeding.    R.  29,  227,  Aug.,  1869. 

XXX  D.  There  are  two  manifest  and  unqualified  limitations  to 
the  province  of  the  regimental  court  under  this  article,  viz:  (1)  It 
can  not  usurp  the  place  of  a  court  of  inquiry;  (2)  It  can  take  no 
cognizance  of  matters  which  it  would  be  beyond  the  power  of  the 
regimental  commander  to  redress.  When  the  matter  is  beyond  the 
reach  of  this  commander,  it  is  beyond  the  jurisdiction  of  this  court. 
If  it  involve  a  question  of  irregular  details,  excessive  work  or  duty, 

*  State  V.  Gibbons,  1  South.,  51.  It  may  be  noted  that  our  Articles  of  War,  unlike 
the  British,  fail  to  make  punishable,  as  a  specific  military  offence,  the  engaging  in  a 
duel.    Such  an  act,  therefore,  would,  as  such,  be  in  general  chargeable  only  under 

2  See' Macomb,  sees.  193,  194;  G.  O.  13,  War  Dept.,  1843;  1  Op.  Atty.  Gen.,  167; 
McNaughton's  Annotations  of  the  Mutiny  Act,  p.  86;  O'Brien,  pp.  123-129. 


126  AETICLES  OF  WAR  XXX  E. 

wrongful  stoppages  of  pay,  or  the  like,  a  regimental  court  under 
this  article  may  be  resorted  to  for  the  correction  of  the  wrong.  Other- 
wise when  the  case  is  one  of  a  wrong  such  as  can  be  righted  only  by 
the  punishment  of  the  officer.^  P.  48,  37,  Jf.79,  Sept.  and  Nov.,  1890; 
47,  214,  May,  1891;  G.  855,  Jan.,  1895. 

XXX  E.  The  right  to  complain  which  is  vested  in  enlisted  men 
in  the  operation  of  the  thirty-eighth  article  of  war  is  a  right  con- 
ferred by  statute,  and  its  exercise  can  not  be  prejudiced  by  require- 
ments of  regulations.     G.  24632,  Mar.  15,  1909. 

XXXII  A.  An  unauthorized  absence  from  the  quarters  only,  as 
from  11  p.  m.  inspection,  lield  not  properly  chargeable  under  the 
thirty-second  article.  This  article  contemplates  an  absence  from 
the  soldier's  'Hroop,  battery,  company,  or  detachment " — an  absence 
from  the  post  or  command.  P.  47,  133,  May,  1891;  49,  100,  171, 
Sept.,  1891. 

Violations  of  the  thirty-third  article  of  war  only  should  not  be 
charged  as  absence  without  leave  under  the  thirty-second  article. 
G.  2838,  Dec,  1896;  18508,  Sept.  6,  1905. 

XXXII  B.  A  soldier  who,  while  absent  without  leave,  fails  to 
repair  to  the  place  of  parade,  etc.,  may  be  charged  with  an  offense 
under  both  the  thirty-second  and  thirty-third  articles  of  war.  G. 
18508,  Sept.  6,  1905;  3694,  June  11,  1910. 

^  The  "regimental  court-martial,"  under  the  thirtieth  article  of  war,  can  not  be  used 
as  a  substitute  for  a  general  court-martial  or  court  of  inquiry,  for  it  can  not  try  an 
officer  nor  make  an  investigation  for  the  purpose  of  determining  whether  he  shall  be 
brought  to  trial.  When,  if  the  soldier's  confplaint  should  be  sustained,  the  only  redress 
would  be  a  reprimand  to  the  officer,  the  matter  would  not  be  within  the  jurisdiction 
of  this  court.  It  can  only  investigate  such  matters  as  are  susceptible  of  redress  by  the 
doing  of  justice  to  the  complainant;  that  is,  when  in  some  way  he  can  be  set  ri^ht 
by  putting  a  stop  to  the  wrongful  condition  which  the  officer  has  caused  to  exist. 
Erroneous  stoppages  of  pay,  irregularity  of  detail,  the  apparent  requirement  of  more 
labor  than  from  other  soldiers,  and  the  like,  might  in  this  way  be  investigated  and 
the  wrongful  condition  put  an  end  to.  The  court  will  in  such  cases  record  the  evi- 
dence and  its  conclusions  of  fact,  and  recommend  the  action  to  be  taken.  The  mem- 
bers of  the  court  (and  the  judge  advocate)  will  be  sworn  faithfully  to  perform  their 
duties  as  members  (and  judge  advocate)  of  the  court,  and  the  proceedings  will  be 
recorded,  as  nearly  as  practicable,  in  the  same  manner  as  the  proceedings  of  ordinary 
courts-martial.    Manual  for  Courts-Martial  (1908),  page  108,  note. 

An  early  instance  of  an  appeal  under  this  article  is  published  in  Orders  No.  5, 
A.  G.  O.,  January  20,  1827,  as  follows: 

"  I:  Under  the  35th  [now  30th]  Article  of  War,  the  commanding  officer  at  For- 
tress Monroe,  on  the  17th  of  November,  1826,  assembled  a  regimental  court-martial  to 

examine  into  a  complaint  made  by  Musician  R B against  Lieutenant 

M ,  of  the  2d  Artillery,  and  to  do  justice  to  the  complainant."  The  court  pro- 
nounced the  following  opinion: 

''The  court  having  heard  and  deliberately  weighed  the  evidence  in  the  case  before 

them,  and  also  Lieutenant  M 's  statement,  are  of  the  opinion  that  the  accusation 

is  not  fully  sustained.     *    *    *    In  expressing  this  opinion  the  court  do  not  find  the 

occasion  warranted  the  language  made  use  of  by  Lieutenant  M to  the  accuser, 

and  the  band  in  general." 

Considering  himself  aggrieved  by  this  "opinion,"  Lieutenant  M "appealed 

to  a  general  court-martial." 

The  court  of  which  Lieutenant  Colonel  E was  president,  having  been  in- 
structed to  take  cognizance  of  the  case,  made  the  following  "decision: " 

"The  court  having  reexamined  all  the  witnesses  who  appeared  before  the  regimental 
court-martial,  and  having  examined  such  other  additional  witnesses  as  were  produced 
by  the  parties,  *  *  *  confirm  the  opinion  expressed  by  the  regimental  court- 
martial  with  the  exception  of  the  closing  words,  to  wit,  'and  the  band  in  general.'" 

This  decision  was  "confirmed"  by  the  Major  General  Commanding  the  Army. 


ARTICLES   OF   WAR  XXXII  C.  127 

XXXII  C.  Where  a  soldier  absents  himself  without  leave  for  a 
definite  period,  with  the  apparent  purpose  of  evading  an  announced 
six  days'  practice  march,  held  that  he  may  be  charged  with  a  violation 
of  article  32,  and,  in  addition,  with  a  violation  of  the  sixty-second 
article  of  war  for  his  attempt  to  evade  the  practice  march.  G.  3694, 
Apr.  24,  1908. 

XXXVIII  A.  It  is  immaterial  whether  the  drunkenness  be  volun- 
tarily induced  by  spirituous  liquor  or  by  opium  or  other  intoxicating 
drug;  in  either  case  the  offense  may  be  equally  complete.^  R.  88, 
409,  Jan.,  1877. 

XXXVIII  B  1.  A  post  commander,  wliile  present  and  exercising 
command  as  such,  is  deemed  to  be  at  all  times  on  duty  in  the  sense 
of  tliis  article,  and  thus  liable  to  a  charge  under  tlie  same  if  found 
drunk  at  post.^  R.  26, 486,  Mar.,  1868;  38,  306,  Sept.,  1876;  C.  10600, 
June  1,  1901. 

XXXVIII  B  2.  A  medical  officer  of  a  post,  where  there  are  con- 
stantly sick  persons  under  his  charge  who  may  at  any  moment 
require  his  attendance,  may,  generally  speaking,  be  deemed  to  be 
''on  duty"  in  the  sense  of  the  article  during  the  whole  day  and 
not  merely  during  the  hours  regularly  occupied  by  sick  call,  visiting 
the  sick,  or  attending  hospital.  If  round  drunk  at  any  other  hour 
he  may  in  general  be  charged  with  an  offense  under  this  article. 
R.  37,  116,  Nov.,  1875. 

XXXVIII  B  3.  An  officer  reporting  in  person  drunk,  upon  his 
arrival  at  a  post,  to  the  commander  of  which  he  had  been  ordered 
to  report,  held  chargeable  under  this  article.  And  so  held  of  an 
officer  reporting,  when  drunk,  to  the  post  commander  for  orders,  as 
officer  of  the  day,  after  having  been  duly  detailed  as  such.^  R.  37, 
152.  Nov.,  1875. 

XXXVIII  B  3  a.  When  an  officer  or  soldier  is  found  drunk  at 
the  time  when  he  is  required  to  enter  upon  a  duty,  held  that  he  is 
not  ''drunk  on  duty"  unless  he  shall  be  permitted  to  enter  the  duty. 
C.  15376,  Apr.  23,  1910. 

XXXVIII  C  1.  Held  that  a  soldier  found  drunk  when  on  duty 
was  properly  convicted  under  this  article,  though  his  drunkenness 
actually  commenced  before  he  went  on  the  duty;  his  condition  not 
being  j)erceived  till  some  time  after  he  had  entered  upon  the  same. 
While  it  is  in  itself  an  offense  knowingly  to  allow  a  soldier  to  go 
on  duty  when  under  the  influence  of  intoxicating  liquor,  yet  if  a 
soldier  is  placed  on  duty  while  partially  under  this  influence  but 
without  the  fact  being  detected,  and  his  drunkenness  continues  and 
is  discovered  wliile  he  remains  upon  the  duty,  he  is  strictly  amenable 
under  this  article,  which  prescribes  not  that  the  party  shall  become 

^  Simmons,  sec.  157.     And  see  Hough  (Precedents),  208;  James's  Precedents,  60. 

^  That  the  article  is  not  limited  in  its  application  to  mere  duties  of  detail,  but 
embraces  all  descriptions  and  occasions  of  duty,  see  the  interpretation  of  the  same 
as  declared  in  G.  O.  7,  War  Dept.,  1856,  and  affirmed  in  G.  O.  5,  id.,  1857.  The 
case  in  the  latter  order,  indeed,  was  a  case  of  drunkenness  while  on  duty  as  a  post 
commander.  See  another  case  of  the  same  character  in  G.  C.  M.  O.  21,  Dept.  of 
the  Missouri,  1870,  and  the  remarks  of  Mai.  Gen.  Schofield  thereon,  and  compare 
G.  C.  M.  O.  9,  War  Dept.,  1875. 

3  See  G.  O.  104,  Headquarters  of  the  Army,  1877. 


128  ARTICLES   OF   WAR   XXXIX  A. 

drunk,  but  that  he  shall  be  ^^ found  drurik^'  on  duty.^     R.  31, 
Apr.,  1871;  C.  15376,  Oct.  13,  1903;  25940,  Jan.  15,  1910. 

XXXIX  A.  Held  that  a  sentinel  is  on  ;post  within  the  meaning 
of  the  thirty-ninth  article  of  war  when  he  is  walking  a  duly  desig- 
nated sentinel's  post,  as  is  ordinarily  the  case  in  garrison,  but  that 
he  is  also  on  post  when  he  may  be  stationed  in  observation  against 
the  approach  of  an  enemy,  or  on  post  to  maintain  internal  discipline, 
or  to  guard  stores,  or  to  guard  prisoners  while  in  confinement  or  at 
work.     C.  20325,  Sept.  7, 1906. 

XL  A.  Any  unauthorized  absence  from  the  place  of  a  ^uard  by  a 
member  of  the  guard  may  properly  be  tried  under  the  fortieth  article 
of  war.     C.  15991,  Mar.  2,  1904;  ^21530,  May  4,  1907. 

XLII  A.  Misbehavior  before  the  enemy  may  be  exhibited  in  the 
form  of  cowardice,  or  it  may  consist  of  a  willful  violation  of  orders, 
gross  negligence  or  inefficiency,  an  act  of  treason  or  treachery,  etc.^ 
It  need  not  be  committed  in  the  actual  sight  of  the  enemy,  but  the 
enemy  must  be  in  the  neighborhood,  and  the  act  of  offense  have  rela- 
tion to  some  movement  or  service  directed  against  the  enemy,  or 
growing  out  of  a  movement  or  operation  on  his  part.  It  may  be 
committed  in  an  Indian  war  equally  as  in  a  foreign  or  civil  war.^ 
R.  6,  79,  Apr.,  1864;    H,  ^^4,  Dec,  1864;    4p,  546,  Mar.  1880. 

XIII  B.  The  term  ''his  arms  or  ammunition"  does  not  refer  to 
arms,  etc.,  which  are  the  personal  property  of  a  soldier,  but  means 
such  as  have  been  furnished  to  him  by  the  proper  officer  for  use  in 
the  service.*  The  term  is  to  be  construed  in  connection  with  the  fur- 
ther similar  expression,  ''his  post  or  colors."     R.  6,  79,  Apr.,  I864. 

XLV  A.  In  view  of  the  general  term  of  description  in  this  and  the 
succeeding  article — "Whosoever,"  it  was  held,  during  the  war  of  the 
rebellion,  by  the  Judge  Advocate  General  and  by  the  Secretary  of 
War,^  and  has  been  held  later  by  the  Attorney  General,^  that  civilians, 
equally  with  military  persons,  were  amenable  to  trial  and  punishment 
by  court-martial  under  either  article ."^  R.  2,  498,  June,  1863;  5,  291, 
Nov.,  1863;  11,  215,  454,  Dec,  I864,  and  Fel.,  1865. 

1  See  cases  in  G.  O.  11,  Dept.  of  Louisiana,  1869;  G.  C.  M.  O.,  113,  Dept.  of  the 
Missouri,  1873. 

2  Ttie  phases  which  this  offense  may  assume  are  well  illustrated  in  cases  published 
in  the  following  General  Orders:  G.  O.  5,  War  Dept.,  1857;  do.  183  id.,  1862;  do.  18, 
134, 146, 189,  204,  229,  282,  317,  id.,  1863;  do.  27,  64,  id.,  1864;  G.  C.  M.  O.  90, 114,  272, 
279,  id.,  1864;  do.  53,  91,  107,  124,  126,  134,  191,  421,  id.,  1865. 

2  See  case  in  G,  0.  5,  War  Dept.,  1857,  in  which  a  soldier  was  sentenced  to  be  hung 
upon  conviction  of  misbehavior  before  the  enemy  on  the  occasion  of  a  fight  with 
Indians. 

4  See  Samuel,  592;  Hough  (Practice),  336. 

^See  G.  O.  67,  War  Dept.,  1861;  also  the  following  orders  of  that  department  pub- 
lishing and  approving  sentences  of  civilians  tried  and  convicted  under  these  articles: 
G.  O.  76,  175,  250,  371,  of  1863;  do.  51  of  1864;  G.  C.  M.  O.  106,  157,  of  1864;  do.  260, 
671,  of  1865. 

6 13  Op.  Atty.  Gen.,  470,  472. 

^  Admitting  this  construction  to  be  warranted  so  far  as  relates  to  acts  committed  on 
the  theater  of  war  or  within  a  district  under  martial  law,  it  is  to  be  noted  that  it  is  the 
effect  of  the  leading  adjudged  cases  to  preclude  the  exercise  of  the  military  jurisdiction 
over  this  class  of  offenses,  when  committed  by  civilians  in  places  not  und,er  military 
government  or  martial  law.  (See,  especially.  Ex  joar^e  Milligan,  4  Wallace,  2,  121-123 ; 
Jones  V.  Seward,  40  Barb.,  563;  also  other  cases  cited  in  note.) 

But  the  sounder  construction  is  believed  to  be  that,  as  the  Articles  of  War  are  a  code 
enacted  for  the  government  of  the  military  establishment,  they  relate  only  to  persons 
belonging  to  that  establishment,  unless  a  different  intent  should  be  expressed  or  other- 


AETIOLES   OF   WAB  XLV  B.  "  129 

XLV  B.  During  the  War  .of  the  Rebellion  all  inhabitants  of  insur- 
rectionary States  were  prima  facie  enemies  in  the  sense  of  this"  and 
the  succeeding  article.^  R.  14,  ^66,  Mar.,  1S65.  A  citizen  of  an 
insurgent  State  who  entered  the  United  States  military  service  became 
of  course  no  longer  an  enemy.  So  lield  of  a  lieutenant  of  the  First 
East  Tennessee  Cavalry.     R,  29,  206,  Aug.  186'9. 

XLV  C.  It  is  no  less  a  relieving  an  enemy  under  tliis  article  that  the 
money,  etc.,  furnished  is  exchanged  for  some  commodity,  as  cotton, 
valuable  to  the  other  party.  R.  12,  386,  Mar.,  1865;  1%,  266,  Mar., 
1865;  16,  U6,  Aug.,  1865. 

XLV  C  1.  The  act  of  ^'relieving  the  enemy"  contemplated  by  this 
article  is  distinguished  from  that  of  trading  with  the  enemj^  in  viola- 
tion of  the  laws  of  war ;  the  former  being  restricted  to  certain  particu- 
lar forms  of  relief,  wliile  the  latter  includes  every  kind  of  commercial 
intercourse  not  expressly  authorized  by  the  Grovernment.  R.  l^j 
266,  Mar.,  1865.     (See  War.) 

XL VI  A.  Held  that  the  offense  of  holding  correspondence  with  the 
enemy  was  completed  by  writing  and  putting  in  progress  a  letter  to 
an  inhabitant  of  an  insurrectionary  State  during  the  War  of  the 
Rebellion;  it  not  being  deemed  essential  to  tliis  offense  that  the  letter 
should  reach  its  destination.^  R,  4,  370;  6,  274  »^  ^^U  Nov., 
1863;  10,  567,  Nov.,  I864. 

XL VI  B.  It  is  essential,  however,  to  the  offense  of  giving  intelli- 
gence to  the  enemy  that  material  information  should  actually  be  com- 
municated to  him;  the  communication  may  be  verbal,  in  writing,  or 
by  signals.     R.  I4,  273,  Mar.,  1865. 

XLVIII  A.  Held  that  when  a  deserter  is  returned  to  duty  with- 
out trial  there  is  an  implied  admission  on  his  part  of  the  desertion. 
This  admission  establishes  the  desertion  and  entails  the  requirement 
in  the  forty-eighth  article  of  war  that  he  shall  make  good  the  time 
lost  in  desertion.3  R.  53,  276,  Apr.,  1887,  P.  26,  487,  Sept.,  1888; 
a  16306,  Apr.  11,  1908;  I68I4,  Sept.  3,  1904  and  Nov.  13,  1906; 
20690,  Nov.  28,  1906;  21117,  Feb.  15,  1907. 

wise  made  manifest.  No  such  intent  is  so  expressed  or  made  manifest.  Persons  not 
belonging  to  the  military  establishment  may  be  proceeded  against  for  the  acts  men- 
tioned in  the  article,  but  it  is  by  virtue  of  the  power  of  another  jurisdiction,  namely, 
martial  law;  and  martial  law  does  not  owe  its  existence  to  legislation  but  to  necessity. 
The  scope  of  these  articles  under  the  legislation  of  1776,  apparently  extending  their 
application  to  civilians,  seems  to  have  become  modified  on  the  adoption  of  the  Con- 
stitution, 

Possibly  the  sixty-third  article  of  war  should  be  construed  as  making  "retainers  to 
the  camp,"  etc.,  part  of  the  military  forces  for  the  time  being.  But  see  the  case  of 
B.  G.  Harris,  M.  C,  tried  by  court-martial  in  1865.  (H.  Ex.  Doc.  14,  39th  Cong.,  Ist 
Bess.) 

^  See  the  opinion  of  the  United  States  Supreme  Court  (frequently  since  reiterated, 
in  substance),  as  given  by  Grier,  J.,  in  the  "Prize  Cases,"  2  Black,  635,  666  (1862); 
and  by  Chase,  C.  J.,  in  the  cases  of  Mrs.  Alexander's  Cotton,  and  The  Venice,  2  Wallace, 
258,  274,  418  (1864).  In  the  latter  case  the  Chief  Justice  observes:  "The  rule  which 
declares  that  war  makes  all  the  citizens  or  subjects  of  one  belligerent  enemies  of  the 
Government  and  of  all  the  citizens  or  subjects  of  the  other,  applies  equally  to  civil 
and  to  international  wars."  That  an  insurrectionary  State  was  no  less  "enemy's 
country,"  though  in  the  military  occupation  of  the  United  States,  with  a  military 
governor  appointed  by  the  President.  (See  Opinion  by  Field,  J.,  in  Coleman  v.  Ten- 
nessee, 7  Otto,  509,  516,  517.) 

2  O'Brien,  147;  Hensey's  Case,  1  Burrow,  642;  Stone's  Case,  6  Term,  527;  Samuel, 
580.  J  ^  ,        , 

3  26  Op.  Atty.  Gen.,  239. 

31106°— 12 9 


130  ARTICLES  OF   WAR  XLVIII  B. 

XLVIII  B.  The  United  States  may  waive  the  liability  imposed  by 
the  first  clause  of  the  article.  It  is  in  fact  waived!  where  the  deserter, 
without  being  required  to  perform  the  service,  is  discharged  by  one 
of  the  officials  authorized  by  article  4  to  discharge  soldiers.  So  it  is 
waived  where  the  soldier  is  adjudged  to  be  dishonorably  discharged 
by  sentence  of  court-martial,  and  this  punishment  is  duly  approved 
and  thereupon  executed.  R.  29,  507,  Bee.,  1869;  30,  506,  July,  1870; 
37,  Ii.16,  Mar.,  1876.  Nor  does  a  deserter  who  has  been  duly  dis- 
charged from  the  service  remain  amenable  to  trial  under  the  last 
clause  of  this  article.     R.  31,  48,  Nov.,  1870.  ^ 

XLVIII  C  1.  Held  that  following  a  conviction  by  court-martial 
for  desertion,  where  the  sentence  does  not  include  discharge,  the 
requirement  to  make  good  time  lost  becomes  operative  by  its  own 
force.     C.  16814,  Nov.  13,  and  Dec.  4,  1906. 

XLVIII  C  2.  The  liability  to  make  good  to  the  United  States  the 
time  lost  by  desertion,  enjoined  by  the  first  clause  of  this  article,  is 
indej)endent  of  any  punishment  which  may  be  imposed  by  a  court- 
martial,  on  conviction  of  the  offense.  It  need  not,  therefore,  be 
adjudged  or  mentioned  in  terms  in  a  sentence.^  R.  50,  4^3,  June, 
1886.  If  the  sentence  is  disapproved,  the  legal  status  of  the  accused 
is  the  same  as  if  he  had  been  acquitted,  and  the  obligation  of  addi- 
tional service  is  not  incurred.     R.  26,  568,  June,  1868. 

XLVIII  C  3.  The  enforcement  of  the  liability  is  postponed  till 
after  the  execution  of  the  punishment  (if  any)  imposed  upon  the 
deserter  by  his  sentence.  A  deserter  may  still  be  required  to  make 
good  the  time  included  in  his  unauthorized  absence  from  the  service, 
although  his  term  of  enlistment  has  expired.  R.  32,  40,  Oct.,  1871; 
C.  18492,  Aug.  31,  1905. 

XLVIII  C  4.  As  the  disapproval  of  a  conviction  operates  as  an 
acquittal,  held  that  a  soldier  whose  conviction  of  desertion  has  been 
disapproved  by  the  reviewing  authority  can  not  be  required  to  make 
good  time  lost  in  desertion  under  the  forty-eighth  article  of  war.^ 
C.  16814,  Apr.  11,  1907;  18438,  June  26,  1908,  and  Aug.  3,  1910. 

XLVIII  D.  The  weight  of  authorities  is  in  support  of  the  view  that 
the  provision  in  the  forty-eighth  article  of  war  to  the  effect  that  a 
deserter  must  make  good  time  lost  in  desertion  is  penal  in  character. 
Held  that  if  the  soldier  is  acquitted  of  desertion  the  liability  to  make 
good  the  time  lost  is  wiped  out.     C.  16814,  Dec.  4, 1906. 

XLVIII  E.  Held  that  the  requirement  in  the  forty-eighth  article 
of  war  that  a  deserter  shall  be  liable  to  serve  such  period  as  shall 
with  the  time  he  may  have  served  previous  to  his  desertion  amount 
to  the  full  time  of  his  enlistment,  requires  military  service,  and  excludes 
from  the  computation  time  spent  while  awaiting  trial  or  serving  sen- 
tence. The  deserter,  therefore,  does  not  begin  to  serve  the  unexe- 
cuted portion  of  his  enlistment  until  he  has  completed  his  sentence. 
R.  30,  506,  July  15,  1870;  31,  275,  374,  Mar.  31,  and  May  10,  1871. 
C.  15271,  Feb.  11,  1906;  16306,  Apr.  10,  1898;  16423,  June  4,  1904; 
17937,  May  4,  1905;  21037,  Feb.  21,  1907;  21536,  May  9,  1907. 

XLVIII  F.  Held  that  the  Habihty  to  trial  and  punishment  imposed 
by  the  second  clause  of  the  forty-eighth  article  of  war  is  subject  to 

1  SeeG.  O.  21,  Dept.  of  the  Lakes,  1873;  do.  94,  Dept.  of  the  Missouri,  1867;  G.  C.  M. 
O.  74,  Dept.  of  the  East,  1873.  The  old  ruling  contra  (see  G.  O.  26,  45,  Hdqrs.  of 
Army,  1843)  may  be  regarded  as  abandoned  in  our  law  and  practice. 

2  26  0p.  Atty  Gen.,  239. 


ARTICLES   OF   WAR   LA.  131 

the  limitation  of  prosecutions  prescribed  in  the  one  hundred  and 
third  article  of  war.  R.  31,  384,  May,  1871;  C.  16257,  Sept.  18,  1903; 
and  May  3,  1910.  Held  further  that  the  liabiUty  to  make  good  time 
lost  in  desertion  continues  even  though  the  statute  of  limitation  has 
taken  effect  or  has  been  successfully  pleaded  in  bar  as  to  the  desertion. 
R.  37,  416,  Mar.,  1876;  P.  48  and^69,  Mar.,  1890. 

1  A.  This  article,  in  its  first  clause,  does  not  create  a  specific 
offense,  or  a  particular  kind  of  desertion,  or  an  offense  distinct  from 
the  desertion  made  punishable  in  the  forty-seventh  article,  but 
declares  in  effect  that  a  soldier  who  abandons  his  regiment,  etc., 
shall  be  deemed  none  the  less  a  deserter,  although  he  may  forthwith 
reenUst  in  a  new  regiment.  It  does  not  render  the  act  of  reenUst- 
ment  a  desertion,  but  simply  makes  the  reenlistment,  under  the  cir- 
cumstances indicated,  prima  fade  evidence  of  a  desertion  from  the 
previous  enlistment  from  wliich  the  soldier  has  not  been  discharged, 
or,  more  accurately,  evidence  of  an  intent  not  to  return  to  the  same.* 
The  object  of  the  provision,  as  it  originally  appears  in  the  British 
Code,  apparently  was  to  preclude  the  notion  that  might  otherwise 
have  been  entertained  that  a  soldier  would  be  excused  from  repudi- 
ating or  departing  from  his  original  contract  of  enlistment,  provided 
he  presently  renewed  his  obhgation  in  a  different  portion  of  the 
miUtary  force.2  R.  42,  642,  May,  1880;  P.  7,  298,  Sept.,  1885;  10,  4, 
May,  1886;  49,  44^,  Oct.,  1891;  C.  355,  Sept.,  1894;  902,  Feb.,  1895; 
1571,  July,  1895;  1624,  Aug.  12,  1895;  2827,  Dec.  31,  1899;  18801, 
Nov.  4,  1905;  21422,  Apr.  23,  1907;  23644,  Jan.  23,  1909;  24722, 
Apr.  5, 1909. 

II  A.  A  declaration  made  by  one  soldier  to  another  of  a  wilhngness 
to  desert  with  him  in  case  he  should  decide  to  desert,  held  not  properly 
an  advising  to  desert,  in  the  sense  of  this  article.  To  constitute  the 
offense  of  advising  to  desert,  it  is  not  essential  that  there  should  have 
been  an  actual  desertion  by  the  party  advised.  But  otherwise  as  to 
the  offense  of  persuading  to  desert;  to  complete  this  offense  the  persua- 
sion should  have  induced  the  act.^  R.  39,  407,  Jan.,  1878;  0.  23215, 
May  8,  1908. 

III  A.  Held  that  a  post  conunander  has  no  authority,  under  the 
fifty-second  article  of  war,  to  require  soldiers  to  march  to  church  and 
participate  in  divine  worship  as  a  part  of  a  military  formation.  C. 
20968,  Jan.  19,  1907. 

LII  B.  The  fifty-second  article  of  war  contains  the  statement  that 
it  is  ''earnestly  recommended  to  all  officers  and  soldiers  diligently  to 
attend  divine  service."  Held  that  an  officer  or  soldier  so  engaged, 
and  while  on  his  way  to  such  service,  or  while  returning,  is  on  duty 
within  the  meaning  of  the  clause  in  the  act  of  April  23, 1904  (33  Stat., 
272),  which  provides  "for  medical  care  and  treatment  of  officers  and 
enfisted  men  of  the  Army  on  duty."     C.  17045,  Oct.  25,  1904. 

LIV  A.  Held  that  it  would  not  be  sound  construction  to  extend 
the  specific  measure  of  redress  contained  in  the  fifty-fourth  article 
of  war  to  other  than  the  specified  cases.  Its  strict  construction 
therefore  would  limit  the  specific  redress  to  acts  of  violence  against 

^See  the  similar  view  expressed  in  G.  C.  M.  O.  129,  Dept.  of  the  Missouri,  1S72; 
do.  77,  id.,  1874. 

2  See  Samuel,  330,  331. 

^Compare  Hough  (Practice),  172,  and  cases  in  G.  O.  23,  Dept,  of  the  Missouri, 
1862;  G.  C.  M.  O.  11,  152,  Id.,  1868. 


132  ARTICLES   OF   WAR  LIV  B. 

a  person,  but  the  weight  of  American  authority  further  extends  it 
to  acts  of  violence  aj^ainst  property.  R.  7,  263,  Feb.,  1864;  P-  3'^> 
293,  Bee,  1889;  C.  ^53^7,  Nov.,  1898;  8043,  Apr.  17,  1900;  15180, 
Sept.  11,  1903;  20543,  Oct.  19,  1906;  22357,  Nov.  15,  1907. 

LIVB.  This  article  is  mandatory  in  its  terms.  The  action  re- 
quired of  the  commanding  officer  is  both  harsh  and  summary,  but  it 
must  be  applied  to  all  cases  falHn^  within  its  scope.  In  a  case  when 
a  proper  complaint  was  presented  and  the  requirements  of  existing 
orders  and  regulations  were  complied  with  by  the  post  commander, 
in  his  efforts  to  identify  the  offenders,  but  it  was  found  to  be  impossible 
to  ascertain  their  names,  and  as  it  appeared  that  substantially  the 
entire  enhsted  membership  of  the  command  was  present  and  partici- 
pated in  the  damage,  the  stoppage  was  made  pro  rata  against  them; 
Tield  to  be  action  within  the  scope  of  the  article.  G.  13106,  Aug.  22, 
1902. 

LIV  C.  Where  complaint  was  duly  made,  under  the  fifty-fourth 
article  of  war,  of  injury  done  by  persons  of  a  command,  but  the  active 
perpetrators  could  not  upon  investigation  be  found,  it  appearing,  how- 
ever, that  the  entire  command  was  present  and  impUcated,  lidd  that 
stoppages  might  legally  be  made  against  all  individuals  present.  R. 
8,  671,  July,  1864;  1^,  ^^^,  Sept.,  1865;  50,  9,  Jan.,  1886;  C.  1861, 
Nov.,  1895;  6839,  Aug.,  1899;  13106,  Aug.  9,  1902;  24491,  Feb.  10, 
1909;  26836,  June  4,  1910. 

IIV  C  1.  Where,  in  a  proper  case,  an  entire  command  was  assessed 
in  the  operation  of  the  article;  held,  that  from  such  assessment  there 
should  be  excepted  those  men  whose  duties  were  such  as  to  preclude 
the  belief  that  they  were  present  at  the  commission  of  the  a(3t  for 
which  damages  are  to  be  assessed.  Members  of  the  guard,  the  sick 
in  hospital,  men  in  confinement  or  absent  from  the  post  on  duty,  etc., 
would  therefore  be  withdrawn  from  the  operation  of  the  order  of 
assessment.     C.  19196,  Feb.  13,  1906. 

LIV  D  1.  It  does  not  affect  the  question  of  rej)aration  under  the 
article  that  the  offender  or  offenders  may  be  criminally  liable  for 
the  injury  committed,  or  may  have  been  punished  therefor  by  the 
civil  authorities.     R.  34,  335,  June,  1873;  C.  22357,  Nov.  15,  1907. 

LIV  D  2.  The  stoppage  contemplated  is  quite  distinct  from  a 
punishment  hy  fine,  and  it  can  not  affect  the  question  of  the  summary 
reparation  authorized  by  the  article  that  the  offender  or  offenders 
may  have  already  been  tried  for  the  offense  and  sentenced  to  for- 
feiture of  pay.  In  such  a  case,  indeed,  the  forfeiture,  as  to  its  execu- 
tion, would  properly  take  precedence  of  the  stoppage.  On  the  other 
hand,  where  the  stoppage  is  first  duly  ordered  under  the  article,  it 
has  precedence  over  a  forfeiture  subsequently  adjudged  for  the 
offense.  R.  21,  447,  June,  1866;  C,  8043,  Apr.  17, 1900;  21157,  Mar, 
2,  1907. 

LIV  E  1.  Held  that,  as  an  agency  for  assessing  the  amount  of  the 
damage,  a  court  martial  could  not  properly  be  substituted  for  the 
board,  directed  by  General  Order  35,  Headquarters  of  Army,  1868, 
to  be  convened  for  such  purpose.  R.  37,  52,  Oct.,  1875;  G,  21157, 
Mar.  2,  1907. 

LIV  F  1.  The  procedure  under  this  article,  and  pursuant  to  Gen- 
eral Order  35  of  1868,  is  as  follows:  The  citizen  aggrieved  tenders  a 
'^complaint"  under  oath,  charging  the  injury  against  a  particular 
soldier  or  soldiers,  described  by  name  (if  known),  regiment,  etc.,  and 


ARTICLES   0F»  WAR  LIV  F  2.  133 

accompanied  by  evidence  of  the  injury,  and  of  tlie  instrumentality  of 
the  person  or  persons  accused.  If  such  evidence  be  satisfactory,  the 
commanding  officer  has  tlie  damages  assessed  by  a  board,  and  makes 
order  for  such  stoppage  of  nay  as  will  be  sufficient  for  the  ''repara- 
tion" enjoined  by  tlie  article.  The  commander  must  have  a  proper 
case  presented  to  him;  he  can  not  legally  proceed  sua  sponte.  R.  45, 
14,  Aug.,  1S81;  C.  1861,  Nov.  22,  1895;  4768,  Aug.  16,  1898;  5347, 
Nov.  21,  1898;  5586,  Jan.  9,  1899;  6839,  Aug.  4,  1^99;  9766,  Jan. 
28,  1901;  13106,  Aug.  22,  1902;  14971,  July  23,  Aug.  28,  1903, 
Jan.  29,  1904,  and  July  22,  1907;  19196,  Feb.  13,  1902;  21157,  Mar. 
2,  1907;  23148,  May  20,  1908. 

LIV  F  2.  Where  the  requirements  of  this  article  were  violated  by 
enlisted  men  of  a  regiment  of  Organized  Militia  taking  part  in  a  joint 
encampment  of  Regular  and  ^Militia  forces,  suggested  that  the  case  be 
referred  to  the  regimental  commander  with  a  view  to  its  submission 
to  the  governor  of  the  Stat*  for  such  redress  as  is  authorized  by  the 
law  of  the  State  to  which  the  militia  forces  belonged.  C.  14971,  July 
23,  1903. 

LIV  G.  Held  that  the  fifty-fourth  article  of  war  is  enforceable  in 
Cuba  and  in  the  Philippine  Islands  (at  date  of  opinion).  C.  9677, 
Jan.  28,  1901. 

LIV  H  1.  Held  that  the  remedial  provision  of  the  fifty-fourth 
article  of  war  can  not  be  enforced  in  favor  of  military  persons  {R.  26, 
352,  Jan.,  1868;  27, 453,  Jan.,  1869;  32, 152,  Bee,  1891;  C.  8043,  Apr. 
17, 1900;  23148,  Apr.  27  and  May  20, 1908),  or  in  favor  of  the  United 
States.  R.  26,  37,  Sept.,  1867;  C.  20273,  Aug.  21,  1906;  21148,  Feb. 
28,  1907. 

LIV  H  2.  Held  that  the  remedial  provision  of  the  fifty-fourth  article 
of  war  can  not  be  invoked  to  indemnify  persons  for  property  stolen 
or  embezzled.  R.  35,  139,  Jan.,  1874;  F.  37,  293,  Dec,  1889;  C. 
8043,  Apr.  17,  1900;^  15180,  Sept.  11,  1903;  22357,  Nov.  15,  1907. 

LVIII  A.  The  jurisdiction  conferred  by  this  article  upon  military 
courts  has  been  held  by  the  highest  judicial  authority  to  be  not 
exclusive,  but  concurrent  merely  with  that  of  the  civil  tribunals.^ 
The  word  ''shall,"  in  the  term  "shall  be  punishable,"  is  construed  as 
equivalent  to  may.^     C.  4916,  Sept.,  1898. 

LVIII  B.  Wliere  a  sentence,  adjudged  by  a  court  convened  by  the 
authority  of  tliis  article,  imposed  a  punishment  of  less  severity  than 
that  provided  for  the  same  offense  by  the  law  of  the  State  in  which 
the  offense  was  committed  (as  imprisonment  where  the  law  of  the 
State  req^uired  the  death  penalty);  Tield  that  such  a  sentence  was 
unauthorized  and  inoperative.  R.  21,  6;  Nov.,  1865;  24,  42,  Dec, 
1866;  C.  12646,  May  19, 1902.  But  though  the  punishment  must  not 
be  "less, "  it  may  legally  be  of  greater  severity  than  that  provided  by 
the  local  statute.  R.  2,564,  J'^ne,  1863;  21,  77,  Nov.,  1865.  Held 
that  the  court,  in  imposing  punishment,  should  be  governed  by  the 
local  law  (so  far  as  required  by  the  article),  although  the  offense  was 

^  Coleman  v.  Tennessee,  7  Otto,  509,  513.  And  see  People  v.  Gardiner,  6  Parker, 
143;  G.  O.  29,  Dept.  of  the  Northwest,  1864;  do.  32,  Dept.  of  Louisiana,  1866. 

The  United  States  District  Court  for  the  District  of  Hawaii  has  jurisdiction  of  an 
assault  committed  upon  a  military  reservation  in  the  Territory  of  Hawaii.  (See  U.  S. 
V.  Kauchi  Matohara,  U.  S.  Dist.  Ct.  for  the  Territory  of  Hawaii,  Oct.,  1911,  term,  cases 
773-784.) 

^  People  V.  Gardiner,  swpra. 


134  AETICLES  OF  WAR  LVIII  C. 

committed  in  a  State  whose  ordinary  relations  to  the  General  Govern- 
ment had  been  suspended  by  a  state  of  war  or  insurrection.^  R.  7, 
205,  Feb.,  1864;  0.  7304,  Nov.  and  Dec,  1899;  10584,  Dec.  18,  1901; 
11322,  Oct.  3, 1901;  11658,  Nov.  26, 1901;  11757,  Dec.  I4, 1901;  12177, 
Mar.  11,  1902;  12219,  Mar.  17,  1904;  12234,  Apr.  28,  1902;  12286, 
Mar.  24,  1902;  12456,  Ajpr.  19,  1902;  12646,  May  20,  1902;  12689, 
May  14,  1902. 

LVIII  C.  The  local  laws  of  a  foreign  country  in  the  military  occupa- 
tion of  the  United  States  in  time  of  war  are  not  "laws  of  any  State, 
Territory,  or  District  of  the  United  States"  within  the  meaning  of 
this  article.  At  such  a  time  and  in  such  a  place  the  punishment 
to  be  adjudged  for  the  offenses  named  in  the  article  would  be  dis- 
cretionary with  the  court-martial.  C.  6267,  Nov.  1898;  5848  Feb., 
1899. 

LVIII  D.  Held  that  the  officers  and  enlisted  men  of  the  Army 
serving  in  the  Philippine  Islands  during  Uie  period  of  military  occupa- 
tion were  not  amendable  to  the  jurisdiction  of  civil  courts  for  any  of 
the  offenses  enumerated  in  the  fifty-eighth  article  6f  war.^  C.  13770, 
Feb.  18,  1903. 

LIX  A.  This  article  is  a  recognition  of  the  general  principle  of  the 
subordination  of  the  military  to  the  civil  power,^  and  its  main  purpose 
evidently  is  to  facilitate,  in  cases  of  offenders  against  the  local  civil 
statutes,  who  happen  to  be  connected  with  the  Army,  the  execution 
of  those  statutes,  where,  as  citizens,  such  persons  remain  legally 
amenable  to  arrest  and  trial  thereunder.  Protection  of  military 
persons  from  civil  arrest,  except  in  certain  cases,  is  not  the  object  of 
this  article.  P.  54,  33,  June,  1892;  63,  4O6,  Feb.,  1894;  0.  638.  Nov. 
16,  1894;  5635,  Aug.  29,  and  Sept.  26,  1910;  17640,  Mar.  11,  1905; 
17824,  Apr,  13,  1905,  and  Apr.  12,  1907;  18339,  July  27,  1906;  25219, 
July  20,  1910.  Surrenders  under  this  article  are  exempted  from  its 
operation  in  time  of  war.  Held  that  the  exemption  clause  did  not 
forbid  such  surrender,  in  a  proper  case,  in  time  of  war.  C.  11916, 
Jan.  16,  1902. 

LIX  B.  The  commanding  officer,  before  surrendin^  the  party,  is 
entitled  to  require  that  the  '^  application"  shall  be  sufficiently  sj^ecific 
to  identify  the  accused  and  to  show  that  he  is  charged  with  a  particular 
crime  or  offense  which  is  within  the  class  described  in  the  article.  ^  It 
has  been  further  held  that  without  a  compliance  with  these  require* 
ments  the  commanding  officer  can  not  properly  surrender  nor  the  civil 
authorities  arrest,  within  a  military  command,  an  accused  officer  or 
soldier.  Where  it  is  doubtful  whether  the  application  is  made  in  good 
faith  and  in  the  interests  of  law  and  justice,  the  commander  may 
demand  that  the  application  be  especially  explicit  and  be  sworn  to; 
and  in  general  the  preferable  and  indeed  only  satisfactory  course  will 
be  to  require  the  production,  if  practicable,  of  a  due  and  formal  war- 
rant or  writ  for  the  arrest  of  the  party .'^  R.  21,  567,  July,  1866; 
23,  490,  May,  1867;  35,  357,  May,  1874;  53,  442,  May,  1887;  C. 
10107,  July  25,  1901;  18518,  Nov.  1,  1907;  24097,  Nov.  16,  1908; 
25219,  July  1,  1909.     The  apphcation  required  by  the  article  should 

^  That  the  Southern  States  during  the  civil  war  were  "at  no  time  out  of  the  pale  of 
the  Union, "  see  White  v.  Hart,  13  Wallace,  646. 
2  See  24  Op.  Atty.  Gen.  570. 

^  See  the  declaration  of  this  principle  in  Dow  v.  Johnson,  10  Otto,  169. 
*  2  Op.  Atty.  Gen.,  10;  6  id.,  413,  421;  Ex  parte  McRoberts,  16  Iowa,  600.  603-605. 


ARTICLES  OF  WAR  LIX  C.  135 

be  made  in  a  case  wliere  the  crime  was  committed  b;^  the  party 
hefore  he  entered  the  military  service  equally  as  where  it  was  com- 
mitted by  him  while  in  the  service.*  In  tne  former  case  a  more  exact 
identification  may  perhaps  reasonably  be  required.  R.  12,  H.5,  Dec. 
186 J^:  C.  17640,  Mar.  8,  1905. 

LIX  C.  The  provisions  of  the  article  are  applicable  only  when  the 
officer  or  soldier  is  accused  of  a  crime  or  offense  ''which  is  punisha- 
ble by  the  laws  of  the  land,"  i.  e.,  by  the  laws  of  the  particular  State 
or  Territory,  or  of  the  United  States,  or  by  the  common  law  as  rec- 
ognized in  the  State  or  Territory.  R.  35,  857,  May,  1874-  The 
by-laws  or  ordinances  of  a  town  or  city  are  a  part  or  the  "laws  of 
the  land"  within  the  meaning  of  this  article.^    C.  638,  Nov.,  1894. 

LIX  D.  It  is  a  principle  of  comity,  as  between  the  civil  and  military 
tribunals,  that  the  jurisdiction  which  first  attaches  should  carry  the 

»  See  G.  O.  29,  Dept.  of  the  Northwest,  1864,  where  it  is  remarked  that  there  is  an 
especial  obUgation  to  surrender  the  soldier,  where  the  crime  was  committed  by  him 
before  entering  the  military  service. 

2  As  to  the  meaning  of  the  term  "laws  of  the  land,"  especially  as  contrasted  with 
municipal  ordinances,  see  Vanzant  v.  Waddell,  2  Yerger,  270;  State  Bk.  v.  Cooper, 
id.,  605;  Horn  v.  People,  26  Mich.,  221.  But  the  question  as  applicable  to  the  fifty- 
ninth  article  was  specifically  decided  by  Attorney  General  Olney  under  date  of 
Nov.  26,  1894  (21  Op.,  88),  as  follows: 

"1.  Does  the  expression  'laws  of  the  land'  as  used  in  the  fifty-ninth  article  of  war 
include  city  ordinances  and  by-laws? 

"2.  May  a  soldier  be  arrested,  tried,  and  punished  by  a  civil  authority  for  the  vio- 
lation of  a  city  ordinance? 

"3.  If  he  escapes  to  a  military  reservation,  can  a  demand  be  made  by  the  civil  on 
the  military  authorities  for  his  surrender,  and  if  so,  will  it  be  the  duty  of  the  com- 
manding officer  to  surrender  him? 

"If  the  first  question  is  answered  affirmatively,  I  see  no  escape  from  the  conclu- 
sions that  a  soldLier  may  be  arrested,  tried,  and  punished  by  the  proper  civil  author- 
ities for  the  violation  of  a  city  ordinance,  and  that,  if  he  escape  to  a  military  reserva- 
tion, his  surrender  may  be  demanded  by  the  proper  civil  authorities  and  should  be 
made  by  the  military  officer  in  command. 

"The  real  inquiry  then  being  whether  a  municipal  ordinance  is  comprehended  by 
the  phrase  'laws  of  the  land'  as  used  in  the  fifty-nmth  article  of  war,  I  have  no  hesi- 
tation in  saying  that  in  my  judgment  it  is  so  comprehended. 

"The  general  reasoning  on  the  subject  by  the  learned  Acting  Judge  Advocate  Gen- 
eral, as  contained  in  his  elaborate  memorandum  of  January  25,  1875,  can  not,  I  think, 
be  successfully  controverted  and  need  not  be  here  repeated.  But  it  may  not  be  amiss 
to  make  special  reference  to  a  class  of  adjudications  which  clearly  define  the  nature 
of  municipal  ordinances  and  apparently  render  the  result  reached  by  Mr.  Lieber 
inevitable.  They  are  illustrated  by  a  recent  case  in  Vermont  in  which  the  facts  were 
that  a  village  charter  granted  to  the  village  certain  powers  in  the  matter  of  licensing 
eating  houses  which  were  repugnant  to  a  general  statute  already  in  force.  The  village 
made  a  by-law  or  ordinance  pursuant  to  its  charter  and  the  question  arose  which 
prevailed — the  ordinance  or  the  general  law?  Did  the  general  law  nullify  the  ordi- 
nance or  did  the  ordinance  nullify  the  general  law  pro  tanto  and  as  regards  that  par- 
ticular village?  The  decision  was  that  the  ordinance,  conforming  as  it  did  to  the 
charter,  repealed  for  that  village  the  preexisting  general  law.  It  was  held  to  do  so 
because  though  in  form  an  ordinance,  yet  being  authorized  by  the  village  charter,  it 
was  in  reality  a  special  statute  of  the  State  of  Vermont.  The  same  principle  is 
affirmed  in  numerous  well-considered  adjudications  of  the  highest  authority.  But  if 
valid  municipal  ordinances  are  in  substance  and  effect  special  statutes  oi  the  State 
chartering  the  cities  or  towns  making  the  ordinances,  they  are  certainly  to  be  regarded 
as  among  the  '  laws  of  the  land '  unless  that  phrase  is  to  be  construed  as  covering  the 
general  legislation  of  the  State  only  and  is  exclusive  of  its  special  legislation.  But  no 
distinction  of  that  sort,  it  is  believed,  has  ever  been  attempted  or  has  any  foundation 
in  reason  or  precedent.  The  result  is,  as  already  stated,  that  the  by-laws  or  ordinances 
of  a  town  or  city  are  to  be  taken  as  part  of  the  'laws  of  the  land '  within  the  meaning 
of  that  phrase  as  used  in  the  fifty-ninth  article  of  war."  (Published  in  Circ.  15, 
A.  G.  O.  1894.) 


136  ARTICLES  OF   WAR  LIX  E. 

case  to  a  termination.  For  such  jurisdiction  to  attach,  the  prisoner 
should  be  in  custody  and  charges  should  have  been  served  upon  him 
with  a  view  to  a  trial  by  court-martial.  When  these  conditions  have 
been  fulfiUed  the  military  authorities  may  decline  to  surrender  the 
offender  until  the  claims  of  the  United  States  shall  have  been  satisfied. 

Such  retention  of  jurisdiction,  however,  is  discretionary,  and  may 
be  waived  by  the  proper  military  authority,  especially  if  the  charge 
is  a  grave  one,  such  as  felonious  homicide.^  C.  IOO48,  Mar.  25, 1901; 
11589,  Nov,  13,  1901;  1404^,  Dec.  5, 1904;  17767,  Mar.  18  and  June 
2, 1905;  19466,  Oct.  13,  1906;  21964,  June  18,  1907;  22264,  May  20, 
1908;  4644,  July  20,  1908;  21694,  Aug.  13,  1908;  23264,  May  8  and 
27  and  Aug.  9,  1909,  and  Nov.  28,  1910;  25219,  July  1,  1909;  26233, 
Feb.  18,  1910;  26237,  May  12,  1910;  5635,  Sept.  27,  1910. 

LIX  E.  An  officer  or  soldier  accused  as  indicated  by  the  article, 
though  he  may  be  willing  and  may  desire  to  surrender  himself  to  the 
civil  authorities,  or  to  appear  before  the  civil  court,  should  not  in 
general  be  permitted  to  do  so,  but  should  be  required  to  await  the 
formal  apphcation.     R.  31,  622,  Sept.,  1871. 

LIX  F.  The  term  ''any  of  the  United  States,"  employed  in  this 
article,  held  properly  to  include  any  and  all  the  poKtical  members  of 
our  governmental  system,  and  to  embrace  an  organized  Territory 
equally  with  a  State.     P.  63,  4O6,  Feb.,  1894.  . 

LIX  G.  The  article  is  directory  not  jurisdictional.  It  does  not 
limit  the  action  to  be  taken  by  the  military  authorities  to  cases  where 
the  application  is  made  by  the  injured  party  or  in  Tiis  behalf.  It  does 
not  place  a  soldier  who  has  committed  a  crime  and  been  indicted  there- 
for beyond  the  reach  of  the  civil  power  if  the  person  injured  does  not 
apply  for  his  surrender.  In  a  case — one  of  murder,  for  example — 
where  there  can  be  no  personal  application,  the  State  properl}^  takes 
the  place  of  the  individual.  And  so  in  all  other  cases  where  an  indict- 
ment has  been  found,  or  a  warrant  of  arrest  has  been  issued,  the  State 
(using  the  term  in  its  general  sense)  with  which  resides  the  jurisdiction 
and  the  power  to  prosecute,  may  make  the  demand,  and  upon  its 
demand  it  is  the  duty  of  the  commanding  officer  to  surrender  the  party 
charged.     P.  54,  33,  June,  1892. 

LIX  G  1  a.  Held  that  there  is  no  provision  of  law  for  the  transpor- 
tation at  the  expense  of  the  United  States  to  the  place  where  he  is 
wanted  by  the  civil  authorities  of  a  surrendered  soldier  under  the 
fifty-ninth  article  of  war  (C.  1872,  Nov,  23, 1895;  7609,  Jan.  25, 1900; 
13354,  Sept.  26, 1902;  13389,  Oct.  6  and  Nov.  11, 1902;  17824,  Apr.  13, 
1905;  18339,  July  25,  1905;  18518,  Sept.  8,  1905),^  even  though  he  is 
surrendered  on  a  legal  warrant  for  a  crime  committed  before  enlist- 
ment. C.  1872,  Nov.  23,  1895;  4780,  Aug.  12,  1898;  16475,  June  21, 
1904;  17640,  Mar.  10,  1905. 

LIX  G  1  b.  A  case  of  surrender  under  the  fifty-ninth  article  of  war 
has  some  of  the  aspects  of  extradition  to  a  foreign  State.  When  a 
State  asks  for  the  surrender  of  a  soldier,  in  the  operation  of  the  fifty- 
ninth  article  of  war,  it  is  a  request  made  by  a  State  on  the  Government 
of  the  United  States  for  the  surrender  of  an  offender,  and  it  would 
seem  to  be  a  reasonable  condition  in  respect  to  such  surrender  that 
the  State  in  whose  behalf  the  request  is  made  should  charge  itself 
with  the  burden  of  returning  the  surrendered  soldier  in  the  event  of 

1  See  G.  O.  7,  Dept.  of  the  South,  1871. 


ARTICLES  OF  WAR  LlXGlb(l).  137 

an  acquittal,  or  of  any  other  disposal  of  the  case  than  a  conviction, 
upon  wliich  a  sentence  to  imprisonment  was  based.  C.  25219,  June 
30, 1909;  17824,  Apr.  13, 1905,  and  July  S,  1909;  26233,  Feb.  18, 1910. 
Held  that  no  reimbursement  can  bo  made  to  the  soldier  for  expense 
of  returning  to  liis  station  out  of  any  appropriation  under  control  of 
the  Army.     P.  57,  277,  Jan.,  1893. 

IIX  G  1  b  (1).  As  enlisted  men  surrendered  under  this  article  are 
released  by  the  civil  authorities  at  a  cUstance  from  their  posts,  without 
the  means  of  returning  thereto,  and  as  the  return  journey  is  not  one 
that  is  properly  chargeable  to  the  United  States;  recommended,  that 
where  the  surrender  of  enlisted  men  is  asked  for,  it  be  attempted  to 
impose  a  condition  that,  if  the  soldier  is  acquitted,  or  the  case  is  dis- 
posed of  in  any  other  way  than  by  conviction,  the  soldier  be  returned 
to  his  post  of  duty  at  the  cost  of  the  authority  to  whom  he  was  orig- 
inally surrendered.     C.  25219,  June  30,  1909. 

IIX  H.  The  article  contemplates  only  cases  in  which  an  ''officer  or 
soldier  is  accused/'  etc.  So,  neld  that  it  did  not  apply  to  a  case  of  a 
ci\ahan  (Cliinese)  laundryman  employed  and  residing  at  a  mihtary 
post,  accused  of  a  ci\41  crime.  The  arrest  in  this  case  having  been 
made  without  the  knowledge  of  the  commanding  officer,  remarlced, 
that  wliile  it  is  desirable  that  arrests  by  the  civil  authorities  of  civiHans 
residing  upon  mihtary  reservations  should,  in  general,  be  made  upon 
application  or  notice  to  the  proper  commanding  officer,  such  a  course 
is  a  matter  of  comity  only  and  can  not  be  required.  P.  1^2,  13^, 
July,  1890. 

LIX  I  1.  This  article  does  not  apply  to  a  time  of  war.  Held,  how- 
ever, that  it  does  not  forbid  the  delivery  of  officers  and  soldiers 
accused  of  capital  crime  in  time  of  war,  but  leaves  the  matter  to  the 
discretion  of  the  proper  authorities.  C.  4916,  Sept.  6,  1898;  5613, 
Jan.  5,  1899;  13499,  Oct.  27,  1902;  19855,  Jan.  5,  1906.  Held, 
therefore,  in  a  particular  case  where  an  officer  of  Volunteers  was 
charged  with  forgery  that  on  presentation  of  a  proper  warrant  he 
could,  by  direction  of  the  Secretary  of  War,  be  surrendered  to  the 
civil  authorities.  C.  4644,  July  23,  1898;  4831,  Aug.  23,  1898; 
5613,  Jan.  5,  1899. 

IIX  I  2.  Held  that  an  officer  absent  on  leave  or  a  soldier  on  fur- 
lough may  be  arrested  in  the  same  manner  as  any  civilian,  as  they 
are  not  under  the  immediate  control  of  the  military  authorities.  V. 
5613,  Jan.  5,  1899.  ^ 

LIX  I  3.  Perjury  is  not  an  offense  against  the  person  or  property 
of  a  citizen  witliin  the  meaning  of  the  fifty-ninth  article  of  war. 
C.  26337,  Mar.  18,  1910.^ 

LIX  K.  When  a  soldier  after  surrender  under  the  fifty-ninth 
article  of  war  is  released  by  the  civil  authorities  under  bail  and 
returned  to  duty,  or  when  by  escape  from  the  civil  authorities  he  has 
returned  himself  to  the  custody  of  the  military  authorities,  held  that 
the  department  commander  should  instruct  the  commanding  officer 
of  such  soldier  to  cause  him  to  appear  for  trial  by  the  civil  authorities 
at  the  proper  time.     R.  21,  457,  June  16,  1866. 

LIX  L  1.  Where  a  soldier  doing  guard  duty  shot  and  killed  a  sol- 
dier on  the  Fort  Caswell  Military  Reservation,  N.  C,  over  which 
jurisdiction  had  been  ceded  to  the  United  States,  held  that  the 
commanding  officer  took  proper  action  in  declining  to  surrender  the 
soldier  to  the  civil  authorities  of  the  State,  as  jurisdiction  is  vested 


138  AETICLES   OF   WAE  LIX  L  2. 

in  the  Criminal  Court  of  the  United  States  for  the  Eastern  District  of 
North  Carolina  and  in  a  legally  constituted  court-martial,  and  that 
if  the  proper  United  States  court  takes  jurisdiction  of  the  case  as  a 
matter  of  comity,  the  military  jurisdiction  should  be  waived.  C. 
17735,  Mar.  25, 1905. 

LIX  L  2.  Wliere  a  Philippine  scout  killed  another  scout  under  cir- 
cumstances which,  in  the  opinion  of  his  department  commander, 
warranted  the  belief  that  the  homicide  amounted  to  murder,  and 
charges  had  been  prepared  as  required  by  Army  Regulations  (970  of 
1910),  held  that  it  was  within  the  discretion  of  the  department  com- 
mander to  turn  him  over  to  the  civil  authorities  without  bringing  him 
to  trial  before  a  general  court-martial,  and  that  such  action  would  not 
be  in  contravention  of  the  requirements  of  the  regulations.  G.  21694, 
July  9,  1908. 

LX  A  1.  The  offense  known  as  the  dupUcating  of  pay  accounts, 
where  it  involves,  as  it  generally  does,  a  presenting  or  a  causing  to  be 
presented  of  a  false  or  fraudulent  claim  against  the  United  States, 
IS  properly  chargeable  under  this  article.  R.  37,  356,  Feb.,  1876;  42, 
569,  Mar.,  1880;  C.  14619,  Aug.  14,  1903;  16131,  Apr.  5,  1904. 

LX  A  2.  Wliere  an  officer,  by  collusion  with  a  contractor,  who  had 
contracted  for  the  delivery  of  military  supplies,  received  for  a  pecu- 
niary consideration  from  the  latter  a  less  amount  of  supplies  than  the 
United  States  was  entitled  to  under  the  contract,  while  at  the  same 
time  giving  him  a  voucher  certifying  on  its  face  the  delivery  of  the 
whole  amount,  Tield  that  such  officer  was  chargeable  with  an  offense 
of  the  class  defined  in  the  8th  paragraph  of  this  article.  B.  35,  206, 
Feb.,  1876. 

LX  A  3.  Where  an  officer  of  the  Quartermaster  Department  used 
teams,  tools,  and  other  pubfic  property,  in  his  possession  as  such 
officer,  in  erecting  buildings,  etc.,  for  the  benefit  of  an  association, 
composed  mainly  of  civihans,  of  which  he  was  a  member,  lield  that  he 
was  properly  chargeable  with  a  misappropriation  of  property  of  the 
United  States.  R.  10,  664,  Dec,  1864-  And  similarly  held  of  a  loan- 
ing by  such  an  officer  of  public  property  (corn)  to  a  contractor,  for 
the  purpose  of  enabling  him  to  fill  a  contract  made  with  the  United 
States  through  another  officer.^  R.  29,  26,  June,  1869.  The  fact' 
that  a  practice  exists  in  a  post  or  other  command  of  making  a  use  (not 
authorized  by  regulation  or  order)  of  Government  property  for 
private  purposes,  or  of  loaning  it  in  the  prospect  of  a  prompt  return, 
can  constitute  no  defense  to  a  charge  for  such  act  as  an  offense  under 
this  article.  Such  practice,  however,  if  sanctioned,  though  improp- 
erly, by  superior  authority,  may  be  shown  in  evidence  in  mitigation 
of  sentence.     R.  29,  189,  Aug.,  1869. 

LX  A  3  a.  Where  a  quartermaster  used  temporarily  with  his  private 
carriage  a  pair  of  Government  horses  in  his  charge,  held  that  he  was  not 
properly  chargeable  with  embezzlement,  but  with  the  offense  (now 
under  this  article)  of  knowingly  applying  to  his  own  use  and  benefit 
property  of  the  United  States,  furnished  for  the  mifitary  service. 
R.  4,  421,  Dec,  1863. 

LX  A  4.  Section  5495,  R.  S.,  provides  that  the  refusal  of  any  person 
charged  with  the  disbursement  of  public  moneys  promptly  to  transfer 
or  disburse  the  funds  in  his  hands  '  *  upon  the  legal  requirement  of  an 

^  Compare  case  in  G.  C,  M.  O,  46,  Hdqrs.  of  Army,  1869. 


ARTICLES   OF   WAR   LX  A  5.  139 

authorized  officer,  shall  be  deemed,  upon  the  trial  of  any  indictment 
against  such  person  for  embezzlement,  as  'prima  jacie  evidence  of  such 
embezzlement."  Applying  this  rule  to  a  military  case,  it  is  clear  that, 
in  the  event  of  sucn  a  refusal  by  a  disbursing  olficer  of  the  Army, 
the  burden  of  proof  would  bo  upon  him  to  show  that  Ids  proceeding 
was  justified,  and  that  it  would  not  be  for  the  prosecution  to  show 
what  had  become  of  the  funds.  So,  where  an  acting  commissary  of 
subsistence,  on  being  relieved,  failed  to  turn  over  the  public  moneys 
in  his  hands  to  his  successor,  or  to  his  post  commander  when  ordered 
to  do  so,  or  to  produce  such  moneys,  exiiibit  vouchers  for  the  same,  or 
otherwise  account  for  their  use,  when  so  required  by  liis  department 
commander;  lidd  that  he  was  properly  charged  with  and  convicted  of 
embezzlement  (the  embezzlement  now  prohibited  by  this  article). 
R,  22,  548,  January,  1867. 

LX  A  5.  Wliere  an  officer,  for  the  purpose  of  obtaining  the  allow- 
ance of  a  fraudulent  claim  against  the  United  States,  willf ullv  induced 
another  to  make  to  the  Umted  States  a  lease  of  premises  tor  public 
use,  containing  a  false  and  fraudulent  statement,  held  that  he  was 
chargeable  with  an  offense  of  the  class  specified  in  the  fourth  para- 
graph of  this  article.     P.  42,  189,  July,  1890. 

IX  B  1 .  Where  a  soldier,  in  order  to  procure  his  discharge  from  the 
service  and  the  payment  thereupon  of  a  considerable  amount  not  in 
fact  due  him,  forged  the  name  of  his  commanding  ofiicer  on  a  discharge 
paper  and  a  *  'final  statement "  paper,  and  presented  the  same  to  a  pay- 
master; Tield  that  he  was  chargeable  with  offenses  defined  in  the 
second,  fourth,  and  sixth  paragraphs  of  this  article.  R.  28,  668, 
June,  1869. 

LX  B  2.  Held  that  a  soldier  who  falsifies  the  entry  in  a  company 
clotliing  book  commits  an  offense  under  the  sixtieth  article  of  war. 
C.  17555,  Pel.  16,  1905. 

LX  C.  The  offense  of  stealing,  indicated  in  the  ninth  paragraph  of 
this  article,  consists  in  a  larceny  of  '' property  of  the  United  States 
furnished  or  intended  for  the  military  service."  Except  in  time 
of  war  (see  Fifty-eighth  article),  larceny  of  other  property  can  be 
charged  as  a  mditary  offense  only  when  cognizable  under  article  62, 
as  prejudicing  good  order  and  military  discipline.  (See  Sixty-second 
article.) 

LX  D.  The  misappropriation  specified  in  the  article  need  not  be  an 
appropriation  for  the  personal  profit  of  the  accused.  The  words  *Ho 
his  own  use  or  benefit,"  quafify  only  the  term  ''applies."  R.  23,  77, 
June,  1866. 

LX  E  1.  Held,  That  under  the  concluding  provision  of  this  article, 
a  soldier  might  be  brought  to  trial  for  an  offense  of  the  class  specified 
therein,  whfle  held  imprisoned,  after  dishonorable  discharge,  under 
a  sentence  imposed  for  another  offense,  provided  of  course  the  two 
years'  limitation  of  article  103  had  not  expired.  R.  81,  34,  Nov., 
1870,  P.  1,  673,  July,  1883;  2327,  May  25,  1896;  7264,  Nov.  10, 
1899;  17901,  Apr.  27,  1905;  25939,  Dec.  16,  1909. 

LX  E  2.  In  view  of  the  words,  "in  the  same  manner,"  employed  in 
the  last  paragraph  of  this  article,  considered  in  connection  with  the 
seventy-seventh  article  and  section  1658,  R.  S.,  held,  that  a  volunteer 
or  nulitia  officer  or  soldier  could  be  tried  after  his  discharge  from  the 
service  for  a  breach  of  this  article  committed  while  in  the  service  only 
by  a  court  composed  in  the  one  case  of  other  than  regular  officers  and 


140  AETICLES  01^  WAR  LX  E  3. 

in  the  other  of  militia  officers.  R.  19,  670,  July,  1866;  26,  166, 
Nov.,  1867;   C.  17901,  Apr.  2J^,  1905;  25609,  Nov.  13,  1909. 

LX  E  3.  As  a  question  has  been  raised  as  to  the  constitutionahty  ^ 
of  that  portion  of  the  sixtieth  article  of  war  which  provides  that 
officers  and  enlisted  men  may  be  tried  for  violation  of  that  article 
after  dismissal  or  discharge,  Tield,  that  that  provision  of  the  article 
can  not  be  considered  unconstitutional  until  it  shall  have  been  so 
judicially  declared.  C.  2327,  May  27,  1896;  5835,  Feb.  7,  1899; 
7264,  Nov.  10,  1899;  107^0,  June  26,  1901;  10751,  Nov.  I4,  1901; 
14619,  Aug.  16,  1903;   C.  25939,  Dec.  16,  1909. 

LX  E  4.  Two  discharged  soldiers  were  brought  to  trial  under  the 
last  clause  of  article  60,  and  one  was  acquitted,  and  the  other  was  con- 
victed but  his  sentence  was  disapproved.  They  applied  for  pay  for 
the  period  spent  in  confinement  awaiting  trial  and  final  action.  Held 
that  there  was  no  law  authorizing  their  being  paid  for  such  period. 
P.  63,  178,  and  179,  Jan.,  1894. 

IX  F.  The  application  or  operation  of  this  article  is  in  no  manner 
affected  by  the  enactment  of  March  3,  1875  (18  Stat.,  479),  consti- 
tuting embezzlement  of  public  property  a  felony  and  making  it  triable 
by  a  United  States  court,  such  act  being  a  purely  civil  statute.  R.  46, 
101,  July,  1882. 

IXI  A.  To  constitute  an  offense  under  this  article,  the  conduct 
need  not  be  '^ scandalous  and  infamous."  These  words,  contained 
in  the  original  article  of  1775,  were  dropped  in  the  form  adopted  in 
1806.  Nor  is  it  essential  that  the  act  should  compromise  the  honor  of 
the  officer.^  It  is  only  necessary  that  the  conduct  should  be  such  as 
is  at  once  disgraceful  or  disreputable  and  manifestly  unbefitting  both 
an  officer  of  the  Army  and  a  gentleman.^  An  act,  however,  which  is 
only  slightly  discreditable  is  not,  in  practice,  made  the  subject  of  a 
charge  under  this  article.  The  article,  in  making  the  punishment  of  dis- 
missal imperative  in  all  cases,  evidently  contemplates  that  the  conduct, 
while  unfitting  the  party  for  the  society  of  men  of  a  scrupulous  sense  of 
decency  and  honor,  shall  exhibit  him  as  unworthy  to  hold  a  commis- 
sion in  the  Army.  _  R.  2,  52,  Mar.,  1863;  0.  17667,  Mar.  18,  1900.^ 

IXI  A  1.  To  justify  a  charge  under  this  article,  it  is  not  necessary 
that  the  act  or  conduct  of  the  officer  should  be  immediately  connected 
with  or  should  directly  affect  the  military  service.  It  is  sufficient  that 
it  is  morally  wrong  and  of  such  a  nature  that,  while  dishonoring  or 
disgracing  him  as  a  gentleman,  it  compromises  his  character  and 
position  as  an  officer  of  the  Army.  R.  5,  I48,  Oct.,  1863;  24,  555, 
May,  1867;  28,  649,  June,  1869. 

LXI  B  1.  Knowingly  making  to  a  superior  a  false  official  report 
lieU  chargeable  under  this  article.     R.  1,  365,  Oct.,  1862;  27,  ^  ^^ 


^  See  G.  C.  M.  O.  20,  Hdqrs.  Phil.  Div.,  Manila,  Nov.  6, 1911,  which  publishes  the 
record  of  a  case,  in  which  case  it  was  pleaded  that  this  part  of  the  sixtieth  article  is 
unconstitutional,  and  that  the  court  had  no  jurisdiction.  The  court  held  that  it  had 
jurisdiction,  tried,  convicted,  and  sentenced  the  accused. 

2  G.  O.  25,  Dept.  of  the  Missouri,  1867. 

3  "_An  officer  of  the  Army  is  bound  by  the  law  to  be  a  gentleman.'^  Atty.  Gen. 
Gushing,  6  Ops.  413,  417.  See  definitions  or  partial  definitions  of  the  class  of  offenses 
contemplated  by  this  article,  in  G.  O.  45,  Army  of  the  Potomac,  1864;  do.  29,  Dept. 
of  California,  1865;  do.  7,  Dept.  of  the  Lakes,  1872;  G.  C.  M.  O.  69,  Dept.  of  the  East, 
1870;  do.  41,  Hdqrs.  of  Army,  1879.     See  also  G.  O.  12,  Dept.  of  the  East,  1895. 

*  See  Carrington  v.  U.  S.  (208  U.  S.,  1). 


AKTICLES  OF   WAR  LXI  B  2.  141 

Aug.,  1868.  So  of  a  deliberately  false  ofFicial  certificate  as  to  the 
truth  or  correctness  of  an  official  voucher,  roll,  return,  etc.  R.  27, 
290,  Oct.,  1868.  So  of  any  deliberately  false  official  statement, 
written  or  verbal,  of  a  material  character.  R.  27,  123,  supra.  So, 
where  an  officer  caused  the  sergeant  of  the  guard  to  enter  in  the 
guard  book  a  false  official  report  that  he  (the  officer)  had  duly  visited 
the  guard  at  certain  hours  as  officer  of  the  day  (when  he  had  in  fact 
not  done  so),  and  thereupon  himself  signed  such  report  and  submitted 
it  to  his  post  commander;  held  that  his  conduct  was  chargeable  as  an 
offense  under  this  article.  R.  42,  685,  Apr.,  1880;  C.  23277,  July  20, 
1908,  and  July  13,  1910. 

LXI  B  2.  The  following  acts,  committed  in  a  particular  case,  Tield 
to  be  offenses  within  this  article:  Preferring  false  accusations 
against  an  officer;  attempting  to  induce  an  officer  to  join  in  a  fraud 
upon  the  United  States;  attempt  at  subornation  of  perjury.  R.  27, 
435,  Dec,  1868. 

LXI  B  3.  An  attempt,  by  corrupt  means,  to  induce  an  officer  to 
give  a  vote,  as  a  member  of  a  post  council  of  administration,  in  favor 
of  a  particular  candidate  for  the  tradership  of  the  post,  held  properly 
charged  under  this  article.     R.  38,  671,  July,  1877. 

LXI  B  4.  Held  that  a  surgeon  who  appropriated  to  his  own  per- 
sonal use,  and  to  that  of  his  private  mess,  food  furnished  by  the  Gov- 
ernment for  hospital  patients,  was  guilty  of  an  offense  under  this 
article.     R.  2,  33,  Feb.,  1863. 

LXI  B  5.  The  violation  by  an  officer  of  a  promise  or  pledge  on 
honor,  given  by  him  to  a  superior — in  consideration  of  the  with- 
drawal by  the  latter  of  charges  preferred  for  drunkenness — that  he 
would  abstain  for  the  future  or  for  a  certain  period  from  the  use  of 
intoxicating  drink;  held  chargeable  under  this  article.  R.  27,  297, 
Oct.,  1868;  29,  151,  Aug.,  1869;  C.  22394,  Jan.  14,  1908. 

LXI  B  6.  Where  an  officer  appeared  in  uniform  at  a  theater  drunk 
and  conducted  himself  in  such  a  disorderly  manner  as  to  attract 
the  attention  of  officers  and  soldiers  who  were  present,  as  well  as 
the  audience  generally;  held  that  he  was  properly  convicted  of  a  vio- 
lation of  this  article.     R.  25,  479,  Apr.,  1868;  38,  I40,  July,  1876. 

LXI  B  7.  Engaging,  when  intoxicated,  in  a  fight  with  another  offi- 
cer, in  the  billiard  room  at  a  post  trader's  establishment,  in  the 
presence  of  other  officers  and  of  civilians,  held  in  the  particular  case, 
an  offense  within  this  article.  R.  4^,  •4^<^>  Jan.,  1880.  So  heldoi 
an  engaging  in  a  disorderly  and  violent  altercation  and  fight  with 
another  officer  in  a  public  place  at  a  military  post  in  sight  of  officers 
and  soldiers.     R.  27,  635,  Apr.,^  1869. 

LXIB.8.  Gambling  with  enlisted  men  (in  a  public  place  in  this 
case);  held  an  offense  within  this  article.^  R.  37,  127,  Mar.,  1873. 
And  so  of  visiting  in  uniform  a  disreputable  gambling  house  and 
gambling  with  gamesters.     R.  42,  633,  May,  1880. 

LXI  B  9  a.  Though  a  mere  neglect  on  the  part  of  an  officer  to 
satisfy  his  private  pecuniary  obli^^ations  will  not  ordinarily  furnish 
sufficient  ground  for  charges  agamst  him  {R.  26,  551,  May,  1868), 
yet  where  the  debt  has  been  dishonorably  incurred — as  where  money 
has  been  borrowed  under  false  promises  or  representations  as  to  pay- 

^  To  the  same  effect,  as  an  early  precedent,  see  G.  O.  1,  War  Dept.,  1847. 


142  ARTICLES   OF   WAR  LXI   B  9  b. 

ment  or  security,  or  where  the  nonpayment  has  been  accompanied 
by  such  circumstances  of  fraud,  deceit,  evasion,  denial  of  indebted- 
ness, etc.,  as  to  amount  to  dishonorable  conduct — the  continued  non- 
payment, in  connection  with  the  facts  or  circumstances  rendering  it 
dishonorable,  may  properly  be  deemed  to  constitute  an  offense 
chargeable  under  this  article.^  R.  13,  425,  Feb.,  1865;  23,  564,  J^^^V, 
1867;  27,  430,  Dec,  1868;  28,  328,  Jan.,  1869;  29,  208,  Aug.,  1869; 
34,  307,  June,  1873;  G.  5482,  Dec,  1898;  5931,  Mar.,  1899;  20063, 
May  4,  1910. 

LXI  B  9  b.  An  indifference  on  the  part  of  an  officer  to  his  pecu- 
niary obligations,  of  so  marked  and  mexcusable  a  character  as  to 
induce  repeated  just  complaints  to  his  military  commander  or  the 
Secretary  of  War  by  his  creditors,  and  to  bring  discredit  and  scandal 
upon  the  military  service,  lield  to  constitute  an  offense  within  the 
purview  of  this  article.^     R.  23,  566,  July,  1867. 

LXI  B  9  c.  Held  that  continued  neglect,  without  suitable  excuse, 
to  pay  honest  debts  after  specific  assurances  have  been  given  of 
speedy  payment,  is  a  dishonorable  act,  constituting  an  offense  under 
the  sixty-first  article  of  war,  especially  when  the  refusals  are  so  often 
repeated  as  to  furnish  reasonable  ground  for  believing  that  the  officer 
designs  to  indefinitely  defer  settlement.  Such  an  offense  is  peculiarly 
aggravated  when  the  debts  are  in  the  form  of  money  borrowed  from 
enlisted  men  or  held  in  trust  for  them.  R.  21,  635,  Sept.,  1866;  42, 
54,  Nov.,  1873;  P.  59,  261,  May,  1893/  Held  further  that  embezzle- 
ment by  an  officer  of  a  soldier's  pay  which  was  turned  over  to  the  officer 
at  the  pay  table  for  delivery  to  the  soldier  is  an  offense  under  the  sixty- 
first  article  of  war.     C.  15177,  June  15,  1905;  20063,  July  16,  1906. 

LXI  BIO.  Where  an  officer,  in  payment  of  a  debt,  gave  his  check 
upon  a  bank,  representing  at  the  same  time  that  he  had  funds  there, 
when  in  fact,  as  he  was  well  aware,  he  had  none;  Jield  that  he  was 
amenable  to  a  charge  under  this  article.     R.  13,  207,  Jan.,  1865. 

LXI  B  11.  Where  certain  officers  of  a  colored  regiment  made  a 
practice  of  loaning  to  men  of  the  regiment  small  amounts  of  money, 
for  which  they  charged  and  received  in  payment  at  the  rate  of  two 
dollars  for  one  at  the  next  pay  day;  held  that  they  were  properly 
convicted  of  a  violation  of  this  article.  R.  23,  260,  Oct.,  1866;  24,  72, 
Dec,  1866. 

LXI  B  12.  Where  an  officer  stationed  in  Utah  was  married  there 
by  a  Mormon  official  to  a  female  with  whom  he  lived  as  his  wife, 
although  having  at  the  same  time  a  legal  wife  residing  in  the  States; 
held  that  he  might  properly  be  brought  to  trial  by  general  court- 
martial  for  a  violation  of  this  article.     R.  23,  164,  Aug.  1866.     So 

*  Cases  of  officers  made  amenable  to  trial  by  court-martial,  under  this  article,  for 
the  nonfulfillment  of  pecuniary  obligations  to  other  officers,  enlisted  men,  post  traders, 
and  civilians  are  found  in  the  following  General  Orders  of  the  War  Department  and 
Headquarters  of  Army:  No.  87,  of  1866;  Nos.  3,  55,  64,  of  1869;  No.  15,  of  1870;  No.  17, 
of  1871;  Nos.  22, 46,  of  1872;  No.  10,  of  1873;  Nos.  25,  50,  68,  82,  of  1874;  No.  25,  of  1875; 
No.  100,  of  1876;  No.  46,  of  1877;  Nos.  39, 124,  of  1885;  No.  31,  of  1887;  No.  54,  of  1888; 
No.  20,  of  1890;  Nos.  3,  85,  of  1891;  Nos.  45,  65, 106,  of  1893;  No.  53,  of  1894;  No.  20,  of 
1895;  No.  38,  of  1896;  and  No.  5,  of  1897.  For  English  precedents,  see  James  Courts- 
Martial  (Collection,  charges,  etc.),  pp.  303,  395,  510,  618,  622,  696,  797,  802. 

2  See,  on  the  subject  of  these  complaints,  the  circular,  issued  originally  from  the 
War  Department  (A.  G.  O.),  on  Feb.  8,  1872,  in  which  the  Secretary  of  War  "declares 
his  intention  to  bring  to  trial  by  court-martial,"  under  the  sixty-first  article  of  war, 
"any  officer  who,  after  due  notice,  shall  fail  to  quiet  such  claims  against  him." 

3  See  Fletcher  v.  United  States,  148  U.  S.,  84,  91,  92;  also  26  Ct.  Cls.,  541. 


AKTICLES   OF   WAR  LXI   B  13.  143 

lield  of  an  officer  who  committed  bigamy  by  publicly  contracting 
mariiage  in  the  United  States,  while  having  a  legal  wife  living  in 
Scotland  whom  he  had  abandoned.     R.  4^,  98,  Jan.,  1879. 

LXI  B  13.  Abusing,  assaulting,  and  beating  his  wife  by  an  officer 
lield  chargeable  as  an  offense  under  this  article.  R.  31,  400,  May, 
1871.  Similarly  held  with  respect  to  failure  on  the  part  of  an  officer 
to  support  his  wife  and  chUdren  without  adequate  cause.  P.  59, 
348,  May  11,  1893. 

LXI  B  14.  The  institution  by  an  officer  of  fraudulent  proceedings 
against  his  wife  for  divorce,  and  the  manufacture  of  false  testimony 
to  be  used  against  her  in  the  suit,  in  connection  with  an  abandon- 
ment of  her  and  neglect  to  provide  for  her  support,  held  to  constitute 
''conduct  unbecoming  an  officer  and  a  gentleman"  in  the  sense  of 
this  Article.  R.  43,  21,  Oct,  1879;  50,  392,  and  431,  June,  1886; 
P.  59,  348,  May,  1893. 

LXI  B  15.  The  duplication  of  a  *  'pay  account/'  or  claim  for  monthly 
pay,  is  always  an  offense  under  this  article.  It  is  no  defense  that 
the  transfer  was  made  before  the  pay  was  actually  due  and  pay- 
able, i.  e.,  before  the  end  of  the  month.  Wliile  such  a  transfer  may 
be  inoperative  in  view  of  par.  1440,  A.  R.  (1300  of  1895),^  in  so  far 
as  that  the  Government  may  refuse  to  recognize  it,  it  is  valid  as 
between  the  officer  and  the  party,  and  to  allow  the  former  to  shel- 
ter himself  behind  the  regulation  would  be  to  permit  him  to  take 
advantage  of  his  own  wrongful  and  fraudulent  act.  P.  50,  43,  Oct., 
1891,  and  219,  Nov.  1891;  51,  370,  Jan.,  1892;  C.  25078,  June  9, 
1909. 

LXII  A.  The  word  "crimes"  in  this  article,  distinguished  as  it  is 
from  ''neglects"  and  "disorders,"  means  military  offenses  of  a  more 
serious  character  than  these,  including  such  as  are  also  civil  crimes — 
as  homicide,  robbery,  arson,  larceny,  etc.  "Capital"  crimes  (i.  e., 
crimes  capitally  punishable),  including  murder,  or  any  grade  of  mur- 
der made  capital  by  statute,  can  not  be  taken  cognizance  of  by  courts- 
martial  under  this  article.  R.  1,47 3,  Dec,  1862;  7,429,465,  Mar.  arid 
Apr.,  1864;  11, 176,  Nov.,  1864;  29,  257,  Sept.,  1869;  32,  478,  and  522, 
Apr.,  1872;  34,  350,  447,  July  and  Sept.,  1873;  35,  385,  Sept.,  1874; 
36,  364,  Apr.,  1875;  41,  50,  Nov.,  1877.  ^  A  crime  which  is  in  fact 
murder,  and  capital  by  statute  of  the  United  States  or  of  the  State 
in  which  committed,  can  not  be  brought  within  the  jurisdiction  of  a 
court-martial  under  this  article  by  charging  it  as  "manslaughter,  to 
the  prejudice,"  etc.,  or  simply  as  "conduct  to  the  prejudice,"  etc.^ 
If  the  specification  or  the  proof  shows  that  the  crime  was  murder 
and  a  capital  offense,  the  court  should  refuse  to  take  jurisdiction  or 
to  find  or  sentence.  If  it  assume  to  do  so,  the  proceedings  should  be 
disapproved  as  unauthorized  and  void.  R.  33,  155,  July,  1872;  34, 
250,  May,  1873;  42,  451,  Dec,  1879;  C.  17462,  Jan.  28,  190S. 

LXII  B.  The  term  "to  the  prejudice  of  good  order  and  military 
discipline,"  qualifies,  according  to  the  accepted  interpretation,  the 
word  "crimes  "  as  well  as  the  words  "disorders  and  neglects."  Thus, 
the  crime  of  larceny  (sometimes  charged  as  "theft"  or  "stealing")  is 

»  See  par.  1281  A.  R.  1910  Ed. 
^  ^  See  this  opinion  as  given  in  an  important  case,  adopted  by  the  Secretary  of  War 
m  his  action  on  the  same  published  in  G.  C.  M.  0.  3,  War  Dept.,  1871;  also  the  simi- 
lar rulings  in  G.  C.  M.  O.  28,  Dept.  of  Texas,  1875;  G.  O.  14,  Dept.  of  Dakota,  1868; 
do.  104,  Army  of  the  Potomac,  1862.  As  to  the  jurisdiction  of  courts-martial  in  cases 
of  murder,  &c.,  in  time  of  war,  see  Fifty-eighth  article. 


144  ARTICLES   OF   WAR  LXII   C  1. 

held  chargeable  under  this  article  when  it  clearly  affects  the  order  and 
discipline  of  the  military  service.  Stealing,  for  example,  from  a  fel- 
low soldier  or  from  an  officer  (or  stealing  of  public  money  or  other 
public  property,  where  the  offense  is  not  more  properly  a  violation  of 
art.  60)  is  generally  so  chargeable.  R.  24,  Ul,A'pr.,  1867;  26, 23,  439, 
487,  Sept.,  1867,  to  Mar,,  1868;  36,  214,  Jan.,  1875;^  39,  47,  Dec,  1876. 
And  so  of  any  other  crime  (not  capital),  the  commission  of  which  has 

Erejudiced  military  discipline.  As  for  example,  manslaughter  (or 
omicide  not  amounting  to  murder)  of  a  soldier  {R.  25,  592,  June, 
1868;  31,  87,  Dec,  1870;  278,  Apr.,  1871;  33,  155,  July,  1872;  36, 
667,  Sept.,  1875;  37,  380,  Mar.,  1876;  41,  188,  Apr.,  1878);  assault 
with  intent  to  kill  a  fellow  soldier  (R.  27,  587,  654,  Mar.  and  May, 
1869) ;  forgery  of  the  name  of  a  disbursing  or  other  military  officer  to 
a  Government  check  or  draft  (R.  29,  369,  Oct.,  1869) ;  or  forgery  of  an 
officer's  name  to  a  check  on  a  bank  {R.  32,  €23,  May,  1872)  whether 
or  not  anything  was  in  fact  lost  by  the  Government  or  the  bank  or 
officer;  forgery  in  signing  the  name  of  a  fellow  soldier  to  a  certificate 
of  indebtedness  to  a  sutler  {R.  9,  328,  July,  1864) ;  or  to  an  order  on 
a  paymaster  (R.  4^,  562,  Mar.,  1880);  embezzlement  or  misappro- 
priation of  the  property  of  an  officer  or  soldier  {R.  39,  201,  Oct.,  1877) ; 
misappropriation  of  ration  money,  the  act  being  a  fraud  and  not  a 
breach  of  trust.     C.  18764,  Feb.  5,  1906. 

IXII  C  1.  Held  that  for  an  officer  to  print  and  pubHsh  to  the  Army 
a  criticism  upon  an  official  report,  made  by  another  officer  in  the 
course  of  his  duty  to  a  common  superior,  charging  that  such  report 
was  erroneous  and  made  with  an  improper  and  interested  motive,  was 
gravely  unmilitary  conduct  to  the  prejudice  of  good  order  and  mili- 
tary discipline.  An  officer  who  deems  himself  wronged  by  an  official 
act  of  another  officer  should  prefer  charges  against  the  latter  or  appeal 
for  redress  to  the  proper  superior  authority.  He  is  not  permitted  to 
res'ort  to  any  form  of  publication  of  his  strictures  or  grievances.  R.  39, 
431,  Feb.,  1878.  So  held  that  for  an  officer  to  publish  or  allow  to  be 
published  in  a  newspaper  of  general  circulation  charges  and  insinua- 
tions against  a  brotner  officer  by  which  his  character  for  courage  and 
honesty  is  aspersed  and  he  is  held  up  to  odium  and  ridicule  before  the 
Army  and  the  community  was  a  nighly  unmilitary  proceeding  and 
one  caUing  for  a  serious  punishment  upon  a  conviction  under  this 
article,  and  this  whether  or  not  the  charges  as  published  were  true. 
R.  42,  284,  May,  1879. 

LXII  C  2.  The  withdrawing  by  a  disbursing  officer  of  the  Army 
from  an  authorized  depository  of  public  funds  for  a  purpose  not  pre- 
scribed or  authorized  by  law — as  for  personal  use,  or  to  pay  claims  not 
due  from  the  United  States  or  payable  by  such  officer — being  a  form  of 
embezzlement  defined  by  section  5488  R.  S.,  is  properly  charged  as 
embezzlement  under  this  article.  R.  25, 588,  May,  1868;  27;  414,  Dec, 
1868;  33,  291,  495,  Sept.  and  Nov.,  1872;  38,  96,  May,  1876.  Though 
the  offense  may  in  terms  be  laid  as  a  violation  of  the  act  of  1866  (5488 
R.  S.),  it  is,  indeed,  only  a  form  of  a  charge  of  violation  of  the  ninety- 
ninth  (now  sixty-second)  article  of  war,^  the  act  of  Congress  merely 

^  An  examination  of  the  opinions  in  the  cases  upon  which  the  text  is  based  discloses 
the  fact  that  the  distinction  between  the  character  of  the  general  offence  of  embezzle- 
ment and  the  particular  embezzlement  defined  in  the  act  of  June  14,  1866,  now  see. 
5488,  R.  S.,  is  clearly  set  out  and  defined,  the  difference  being  so  marked  that  it  would 
be  an  error  to  charge  the  acts  set  out  in  the  latter  statute  as  a  violation  of  the  sixtieth 


ARTICLES   OF  WAR  LXII   C  2.  145 

furnishing  a  definition  of  the  offense.  The  act,  it  may  be  added,  fur- 
nishes also  a  measure  of  punishment  wl^ich  may  properly  aid,  though 
it  need  not  necessarity  govern,  the  discretion  or  a  court-martial  in 
imposing  sentence.  U.  33,  495,  Nov.,  1872.  But  lieU,  that  to  con- 
stitute such  embezzlement  it  is  not  necessary  that  there  should  have 
been  a  personal  conversion  of  the  funds  or  an  intent  to  defraud.  The 
object  of  the  law  is  to  provide  a  safeguard  against  the  misuse  and 
(hverting  from  their  appointed  purpose  of  pubUc  moneys,  and  the 
intent  of  the  offender,  whether  fraudulent  or  not,  enters  in  no  respect 

article  of  war.  These  opinions  were  rendered  with  reference  to  the  trials  of  officers, 
which  trials  were  published  in  the  following  general  court-martial  orders  of  the  War 
Department:  43,  86,  of  1868;  27,  34,  of  1872;  and  7,  of  1873. 

In  all  of  these  cases,  except  the  last  one,  the  officers  were  tried,  among  other  offences, 
for  illegally  withdrawing  from  the  authorized  depositories  or  applying  to  a  purpose 
not  authorized  by  law,  money  intrusted  to  them,  and  in  each  of  these  cases  the  money 
80  withdrawn  or  misapplied  was  furnished  or  intended  for  the  military  service,  but  the 
offences  were  charged  under  the  act  of  Jime  14,  1866,  now  sec.  5488,  R,  S.,  and  not 
under  what  is  now  subdivision  9  of  the  sixtieth  article  of  war. 

The  officer  named  in  the  last  order  was  tried  under  the  act  of  March  2,  1863,  now 
the  sixtieth  article  of  war,  for  embezzlement,  and  not  for  any  actfl  legitimately  charge- 
able under  the  act  of  June  14,  1866. 

In  remarking  upon  the  general  offence  of  embezzlement  as  then  set  out  in  the  thirty- 
ninth  article  of  war  of  the  articles  of  1806,  and  upon  the  embezzlement  defined  in  the 
act  of  June  14,  1866,  Judge  Advocate  General  Holt,  ia  his  opinion  upon  the  case  in 
G.  C.  M.  0.,  34  supra,  says:  "*  *  *  The  court  may  well  be  supposed  to  have 
construed  the  thirty-ninth  article  as  contemplating  an  embezzlement  or  misapplication 
with  fraudulent  intent,  and  to  have  acquitted  on  the  ground  that  there  was  upon  the 
testimony  a  reasonable  doubt  as  to  the  existence  of  such  intent.  But  if  this  con- 
clusion be  accepted,  the  fact  remains  that  no  such  construction  could  properly  govern 
in  connection  with  the  other  charge  (embezzlement  under  the  act  of  June  14,  1866). 
The  statute  of  1866,  in  view  of  which  it  was  preferred,  is  the  expression  of  extreme 
vigilance  in  regard  to  the  proper  use  and  disposition  of  the  public  moneys,  found  by 
the  experience  of  the  Government  to  have  become 'imperatively  necessary  to  be 
observed.  It  provides  an  additional  safeguard  of  the  Public  Treasury  by  enacting 
that  any  disbursing  officer  who  shall  withdraw,  transfer,  or  apply  any  of  the  public 
funds  intrusted  to  him  for  any  purpose  not  authorized  by  law  shall  be  deemed  guilty 
of  a  felonious  embezzlement  and  be  punished  accordingly.  The  intent  of  the  officer, 
whether  innocent  or  fraudulent,  enters 'in  no  manner  into  the  statutory  offence.  If 
his  act  of  withdrawal,  application,  etc.,  of  the  funds  is  simply  one  not  authorized  by 
existing  law,  he  is  guilty  of  the  crime  here  defined  by  Congress.  His  intent,  if  inno- 
cent, may  perhaps  be  considered  in  mitigation  of  punishment,  but  can  not  be  relied 
upon  as  a  legal  bar  against  conviction.  _  The  offence  created  by  this  act  belongs  to 
the  class  known  as  mala  prohibita,  but  it  is  upon  the  repression  of  this  class  of  offences 
that  the  safety  of  the  Public  Treasury  largely  depends." 

In  the  publication  to  the  Army  of  this  case,  the  Secretary  of  War,  approving  the 
views  of  Judge  Advocate  General  Holt,  said:  **In  the  opinion  of  the  Secretary  of 
War,  they  might  well  have  convicted  the  accused  of  at  least  a  portion  of  the  charged 
^aolations  of  the  act  of  June  14,  1866  (now  sec.  5488,  R.  S.),  a  statute  enacted  for  the 
more  complete  protection  of  the  Treasury,  *  *  *  and  which  without  regard  to 
the  intent  of  the  offender  denounces  all  withdrawals  from  a  public  depository  or 
dispositions  of  public  moneys  not  authorized  by  express  law." 

As  a  rule,  therefore,  acts  defined  in  sec.  5488,  R.  S.,  have  been  brought  to  trial 
as  embezzlement  under  this  section  in  violation  of  the  sixty-second  article-  of  war, 
and  not  under  the  sixtieth  article  of  war. 

See  in  this  connection  in  addition  to  the  cases  already  cited  those  published  in 
the  following  general  court-martial  orders  (War  Department):  5,  of  1869;  21,  58,  81, 
of  1874;  52,  of  1877;  5,  of  1881;  30,  of  1883. 

See  also  S.  O.  172,  A.  G.  O.,  of  1899  (order  publishing  case  of  Capt.  O.  M.  Carter, 
Corps  of  Engineers).  See  further,  O.  M.  Carter  v.  McClaughry  (105  Fed.  Reporter, 
p.  614) .  In  the  latter  case  the  court,  inter  alia,  said :  *'  It  is  also  contended  that  under , 
the  sixty-second  article  of  war  ^^^o  charge  can  be  preferred  that  is  embraced  in  any 
other  article,  and  that  as  the  charge  is  that  of  embezzlement  it  is  covered  by  either 
the  first,  fourth,  or  ninth  paragraph  of  the  sixtieth  article  of  war.    Assuming,  but  not 

31106°— 12 10 


146  .ARTICLES   OF   WAR  LXII   C   3. 

into  the  statutory  crime. ^  If  the  withdrawal  of  appKcation  of  the 
funds  is  simply  one  not  prescribed  or  authorized  by  law,  the  offense  is 
complete.2  ^  25,  688,  May,  1868;  27,  116,  July,  1868;  33,  494, 
Nov.,  1872;  38,  96,  May,  1876.  An  absence,  however,  of  criminal 
motive  in  the  illegal  act  may  be  shown  in  mitigation  of  sentence  in  a 
military  case.  B.  33,  4^4,  supra.  So  held,  that  it  constituted  no 
defense  to  a  charge  of  an  embezzlement  of  this  class  (though  it  might 
be  shown  in  mitigation  of  punishment)  that  the  officer  had  restored 
to  the  public  depository  the  funds  illegally  withdrawn  by  him  before 
a  formal  demand  was  made  for  the  same.    B.  25,  588,  supra. 

LXII  C  3.  In  view  of  the  injunction  and  definition  of  sections  3622 
and  5491,  E.  S.,  an  officer  who,  in  his  official  capacity,  receives  public 
money  (not  pay  or  an  allowance)  which  he  fails  duly  to  account  for  to 
the  United  States,  is  guilty  of  embezzlement.  The  statute  makes  no 
distinction  as  to  the  sources  from  which  the  money  is  derived  or  the 
circumstances  of  its  receipt.  Nor  is  it  material  whether  or  not  the 
officer  actually  converted  it  to  his  own  use  or  what  was  the  motive  of 
his  disposition  of  it.  So  held  that  an  officer  who,  having  claimed  and 
exacted  certain  moneys  of  the  United  States  from  Government  con- 
tractors, failed  to  pay  the  same  into  the  Treasury,  or  to  duly  account 
therefor,  was  guilty  of  embezzlement  under  this  article.  P.  52,  138, 
Feb.,  1892. 

LXII  C  4.  Where  an  officer  allowed  to  an  enlisted  man  and  paid  to 
him,  out  of  certain  public  funds  consisting  of  the  proceeds  of  a  pubfic 
sale  of  condemned  quartermaster  stores,  an  amount  of  10  per  centum 
on  the  total  of  such  proceeds,  as  a  compensation  for  the  services  of 
such  man  as  auctioneer  at  the  sale,  held  that  such  payment  was 
illegal  and  unauthorized  ^  and  constituted  an  embezzlement  of  pubfic 
money  chargeable  under  this  article.     P.  59,  201,  Apr.,  1893. 

LXII  C  5  a.  Whether  acts  committed  against  civilians  are  offenses 
within  this  article  is  a  question  to  be  determined  by  the  circumstances 
of  each  case,  and  in  regard  to  which  no  general  rule  can  be  laid  down. 
If  the  offense  be  committed  on  a  military  reservation,  or  other  premises 
occupied  by  the  Army,  or  in  its  neighborhood  so  as  to  be — so  to 
speak — in  the  constructive  presence  of  the  Army ;  or  if  committed  by 

deciding,  that  no  charge  can  be  laid  under  the  sixty-second  article  of  war  if  it  is  men- 
tioned in  any  preceding  article,  still  it  is  apparent  that  the  embezzlement  defined 
in  sec,  5488,  R.  S.,  is  not  the  offence  denounced  in  either  the  first  or  fourth  paragraph 
referred  to,  and  I  am  also  of  the  opinion  that  it  is  a  species  of  embezzlement  different 
from  that  defined  in  the  ninth  paragraph  of  the  sixtieth  article  of  war,  since  the  money 
which  is  the  subject  of  embezzlement  under  the  latter  article  is  money  'furnished 
for  military  service,'  whereas  under  sec.  5488,  the  term  'money'  comprehends 
any  public  money,  whether  appropriated  for  the  military  service  or  for  other  purposes. 
The  offence  denounced  in  sec.  5488  is  much  broader  and  more  comprehensive 
than  the  other,  the  former  being  the  application  by  a  disbursing  officer  of  money 
to  any  unauthorized  purpose,  whilst  under  the  ninth  paragraph  mentioned  the  money 
which  is  the  subject  of  the  embezzlement  is  money  appropriated  specifically  for  the 
military  service,  and  it  is  quite  probable  from  the  context  of  the  entire  paragraph 
that  the  term  'embezzlement,'  as  there  employed,  means  such  an  offence  as  is  gen- 
erally understood  where  one  having  the  money  of  another  in  his  custody  appropriates 
it  to  his  own  use  with  felonious  intent,  intending  to  deprive  the  true  owner  thereof." 

1  See  remarks  of  the  Secretary  of  War  in  G.  C.  M.  O.,  34,  War  Department,  1872, 
quoted  in  preceding  note. 

2  Compare  14  Op.  Atty.  Gen.,  473. 

3  See  opinion  of  the  Second  Comptroller  of  the  Treasury  published  in  Circ.  No.  3, 
A.  G.  0.,  1894. 


ARTICLES   OF   WAR  LXII   C  6.  147 

an  officer  or  soldier  while  on  duty,  particularly  if  the  injury  is  done  to 
a  member  of  the  community  whom  the  offender  is  specially  required 
to  protect;  or  if  committed  in  the  presence  of  other  soldiers,  or  while 
the  offentler  is  in  uniform;  or  if  the  offender  use  his  mihtary  position 
or  that  of  another  for  the  purpose  of  intimidation  or  other  unlawful 
influence  or  object — the  offense  will  in  general  properly  be  regarded 
as  an  act  prejudicial  to  good  order  and  military  disciplme  and  cogni- 
zable by  a  court-martial  under  this  article.  The  judgment  on  the 
subject  of  a  court  of  military  ofiicers,  experts  as  to  such  cases,  con- 
firmed by  the  proper  reviewing  commander,  should  be  reluctantly 
disturbed.  R.  49,  268,  Aug.,  1885;  P.  28,  207,  Nov.,  1888;  84,  S81, 
Aug.,  1889;  36,  151,  Oct.,  1889, 

LXII  C  6.  It  has  been  held  by  the  War  Department  where  it  has 
been  sought  to  cause  the  discharge  without  honor,  without  previous 
trial,  of  soldiers  guilty  of  bestial  offenses,  that  when  possible  men 
should  not  be  discharged  under  the  circumstances  without  a  hearing, 
and  that  the  best  form  of  granting  such  a  hearing  was  that  of  a  trial 
by  general  court-martial;  where,  therefore,  soldiers  are  charged 
with  sodomy  and  the  proof  is  sufficient  to  warrant  a  trial,  they 
should  be  brought  to  trial  and  not  summarily  discharged. 

Wliere,  on  the  other  hand,  it  would  appear  that  sufficient  evidence 
to  convict  is  not  obtainable,  or  that  a  case  is  barred  by  the  statute  of 
limitations,  the  discharge  of  a  man  without  honor,  for  the  reason 
that  he  has  become  disqualified  for  service  as  a  result  of  his  bad 
habits,  has  been  authorized.  C.  20615,  Aug,  IS,  1907.  See  also 
Discharge,  III  B  to  C;  F. 

LXII  C  7.  Burglary  at  conmion  law  is  the  breaking  and  entering  of  a 
dwelhng  in  the  nighttime  with  intent  to  commit  a  felony.  Where 
a  soldier  was  brought  to  trial  upon  a  charge  of  ''Burglary,"  with  a 
specification  setting  forth  that  he  forcibly  entered  the  quarters  of  an 
officer  in  the  night,  with  intent  to  steal,  and  it  appearing  that  he 
entered  through  an  o'pen  window,  lield  that,  although  the  offense 
shown  was  not  a  burglary  in  law — the  essential  element  of  a  breaking 
being  wanting — the  charge  and  specification,  taken  together,  omitting 
this  element,  made  out  a  sufficient  pleading  of  a  disorder  to  the  preju- 
dice of  good  order  and  military  discipline,  under  the  sixty-second 
article  of  war.^  R.  38,  391,  Dec,  1876.  And  similarly  lield  of  an 
offense  charged  as  ''conduct  to  the  prejudice,  etc.,"  and  described  in 
the  specification  as  "burglariously  breaking  and  entering  a  post 
trader's  store  in  the  daytime.  R.  88,  548,  Aug.,  1870;  C.  12177, 
Mar.  11  and  May  15,  1902;  12224,  ^W-  ^y  ^^02;  12689,  May  14, 
1902;  22606,  Jan.  9,  1908. 

LXII  C  9.  "False  swearing,"  under  the  sixty-second  article  of  war, 
as  the  term  is  used  in  the  order  prescribing  maximum  punishments, 
means,  (1)  taking  a  false  oath  in  a  mihtary  judicial  proceeding  as  to 
a  matter  not  material  to  the  issue;  (2)  taking  a  false  oath  otherwise 
than  in  a  judicial  proceeding,  before  a  person  legally  authorized  to 
administer  the  oath  and  under  circumstances  affecting  the  interests 
of  the  mihtary  service,  P.  46,  211,  Mar.,  1891,  and  is  an  offense  under 
the  sixty-second  article  of  war.    P.  36,  859,  Nov.  9,  1889. 

LXII  C  10.  Improper  disposition  of  property  in  the  charge  and  use 
of  soldiers,  other  than  the  dispositions  indicated  in  article  17,  will 

^  See  G.  C.  M.  0.  205,  Hdqrs.  of  the  Army,  1876. 


148  ARTICLES  OF  WAR  LXII  C  11. 

in  general  properly  be  charged  under  article  62.^  Likewise  the 
selling,  through  neglect  losing,  etc.,  by  soldiers,  of  property  issued  to 
them,  but  not  mentioned  in  article  17,  should  be  charged  under 
article  62.  Thus  lield  that  a  selhng  or  losing  of  the  following  articles 
was  not  punishable  under  article  17,  but  under  article  62,  viz,  sheets, 
pillows,  pillowcases,  mattress  covers,  shelter  tent,  barrack  bag, 
great-coat  strap,  tin  cup,  spoon,  knife,  fork,  meat  ration  can,  car- 
tridges. P.  17,  119,  May,  1887;  21,  151,  Dec,  1887;  52,  2I^5\,  Feb., 
1892;  G,  12796,  July  25, 1902. 

LXII  C  11.  Held  that  disrespectful  language  used  in  regard  to  his 
captain  by  a  soldier,  when  detached  from  his  company  and  serving 
at  a  hospital,  to  the  surgeon  in  charge  of  which  he  had  been  ordered 
to  report  for  duty,  was  an  offense  cognizable  by  court-martial  under 
article  62.    R.  6,  53,  Mar.,  1864. 

LXII  C  12.  A  noncompliance  by  a  soldier  with  an  order  emanating 
from  a  noncommissioned  officer,  or  offering  violence  t5  the  latter,  is 
not  an  offense  under  article  21,  but  one  to  be  charged,  in  general, 
under  the  sixty-second.    R.  9,  90,  May,  1864;  H,  491,  Mar.,  1865. 

LXII  C  13.  A  charge  of  drunkenness  on  duty  (drill),  held  not 
sustained  where  the  party  was  found  drunk,  not  at  or  during  the 
drill,  but  at  the  hour  appointed  for  the  drill,  which,  however,  by 
reason  of  his  drunkenness,  he  did  not  enter  upon  or  attend.  The 
charge  should  properly  have  been  laid  under  article  62.  R.  39,  226, 
Oct,  1877;  C.  15376,  Apr.  22, 1910. 

LXII  014.  Where  an  officer,  after  being  specially  ordered  to  remain 
with  his  company,  absented  himself  from  it  and  from  his  duty,  and, 
while  thus  absent,  became  and  was  found  drunk,  held  that  he  was  not 
strictly  chargeable  with  drunkenness  on  duty  under  article  38,  but 
was  properly  chargeable  with  drunkenness  in  violation  of  the  sixty- 
second  article,  disobedience  of  orders,  and  unauthorized  absence. 
R.38,  425,  Jan.,  1877. 

LXII  C  15.  Held  that  it  is  competent  for  the  President  as  Com- 
mander in  Chief  to  prescribe  a  maximum  punishment  for  the  offense 
of  loaning  money  at  usurious  rates  of  interest,  and  that  if  such  order 
be  issued  it  would  be  proper  to  make  the  punishment  of  noncom- 
missioned officers  for  that  offense  more  severe  that  that  of  privates. 
G.  28023,  Mar.  27, 1911. 

LXII  C  16.  Held  that  soldiers  who  commit  a  disturbance  upon 
private  premises  while  in  uniform  violate  the  sixty-second  article  of 
war,  as  their  conduct  is  to  the  prejudice  of  good  order  and  military 
discipline.     G.  16603,  July  8, 1904. 

LXII  C  17.  Held,  in  the  case  of  an  officer  who  had  been  permitted 
by  his  commanding  officer  to  leave  his  confinement  in  close  arrest 
temporarily,  and  who  delayed  his  return  for  a  brief  period  beyond 
that  fixed,  that  such  delay  did  not  properly  constitute  an  oflFense 
under  the  sixty-fifth  article  of  war  but,  if  sufficiently  serious,  should 
be  charged  under  the  sixty-second  article.     R.  30,  562,  Aug.,  1870. 

LXII  C  18.  Held  that  a  failure  to  obey  an  order  to  proceed  and 
report  in  arrest  to  a  certain  commander  was  chargeable  as  an  offense 
under  the  sixty-second  article  of  war  and  not  under  the  sixty-fifth 

^  As  the  pawning  of  a  revolver.  G.  C.  M.  0.  77,  Dept.  of  the  Missouri,  1874,  So, 
the  gambling  away  of  clothing.  G.  C.  M.  O.  41,  Dept.  of  Texas,  1873.  So,  the  spoiling 
by  a  bugler  of  his  bugle.    G.  C.  M.  O.  36,  War  Dept.,  1876. 


ARTICLES  OF  WAR  LXII  D.  149 

article  of  war.  R.  31 ,  606,  Aug.  21 ,1871.  Similarly  Md  with  regard 
to  a  breach  of  arrest,  which  arrest  was  not  accompanied  by  confine- 
ment to  quarters.  R.  5, 122,  Oct.  10,  1863;  11, 127,  Nov.  4, 1864;  0. 
26140,  Jan.  29, 1910. 

LXII  D.  The  following  offenses  have  been  held  properly  charged 
or  chargeable  under  this  article,  as  disorders  or  neglects.' ' io  the  preju- 
dice of  good  order  and  military  discipline":  Drunkenness  or  drunken 
and  disorderly  conduct,  at  a  post  or  m  public,  committed  by  a  soldier 
or  ofiicer  when  not  **on  duty,"  and  when  the  act  (in  the  case  of  an 
officer)  does  not  more  properly  fall  within  the  description  of  article 
61.  R.  1,  463,  Dec,  1862;  8,  366,  May,  1864;  24,  79,  Dec,  1866; 
28,  675,  May  1869.  Escape  from  military  confinement  or  custody 
(where  not  amounting  to  desertion).  R.  10,  674,  Nov.,  1864. 
Breach  of  arrest  (where  not  properly  chargeable  under  article  65). 
R.  29,  175,  Aug.,  1869.  Disclosing  a  finding  or  sentence  of  a  court- 
martial  in  contravention  of  the  oath  prescribed  in  article  84  or  85. 
R.  21,  628,  Sept.,  1866.  Refusal  b}^  an  officer  or  soldier  to  testify, 
when  duly  required  to  attend  and  give  evidence  as  a  witness  before 
a  court-martial.  R.  42,  596,  Apr.,  1880.  Joining  with  other  inferior 
officers  of  a  regiment  in  a  letter  to  the  colonel,  asking  him  to  resign. 
R.  41,  226,  May,  1878.  Neglecting,  by  a  senior  officer  ''present  for 
duty"  with  his  regiment,  to  assume  the  command  of  the  same  when 
properly  devolved  upon  him,  and  aUowing  such  command  to  be 
exercised  by  a  junior.  R.  11,  172,  Nov.,  I864.  Culpable  malpractice 
by  a  medical  officer  in  the  course  of  his  regular  military  duty.  R.  2, 
378,  May,  1863.  CoUuding  with  bounty  brokers  in  procuring  fraud- 
ulent enlistments  to  be  made  and  bounties  to  be  paid  thereon.  R.  I4, 
326,  May,  1865.  Violations,  by  an  officer,  of  Army  Regulations,*  in 
bidding  in  and  purchasing,  through  another  part^,  public  i)roperty 
sold  at  auction  by  himself  as  quartermaster;  also  m  purchasing  sub- 
sistence stores,  ostensibly  for  domestic  use,  but  really  for  purposes 
of  traffic.  R.  39,  283,  Nov.,  1877.  Causing  (by  a  quartermaster) 
troops  to  be  transported  upon  a  steamer  known  by  him  to  be  unsafe. 
R.  15,  301,  June,  1865.  Paying  money  due  under  a  contract  (for 
military  supplies)  to  a  party  to  whom,  with  the  knowledge  of  the 
accused,  the  contract  had  been  transferred  in  contravention  of 
section  3737,  R.  S.  R.  42,  44,  Nov.,  1878.  Inciting  (by  an  officer) 
another  officer  to  chaUenge  him  to  fight  a  duel.  R.  28, 650,  June,  1 869. 
Assuming  (by  a  soldier)  to  be  a  corporal  in  the  recruiting  service,  and 
as  such  enlisting  recruits  and  obtaining  board  and  lodging  for  him- 
self and  recruits  without  paying  for  same.  R.  39,  229,  Oct.,  1877. 
Procuring  (by  a  soldier)  whisky  from  the  post  trader  by  forging  an 
order  for  the  same  in  the  name  of  a  laundress.  R.  37,  270,  Jan., 
1876.  Breach  of  faith  (by  a  soldier)  in  refusing  to  pay  the  post 
trader  for  articles  obtained  on  credit,  upon  orders  on  him  which  had 
been  guaranteed  or  approved  by  the  company  commander  upon  the 
condition  that  the  amounts  should  be  paid  on  the  next  pay  day. 
R.  27,  282,  Sept.,  1868;  563,  Mar.,  1869;  28,  298,  Jan.,  1869; 
29,  574,  Jan.,  1870.  ^  Gambling  by  officers  or  soldiers  under  such 
circumstances  as  to  impair  military  discipline  (where  the  conduct, 
in  the  case  of  an  officer,  does  not  rather  constitute  an  offense  under 

*  Violations  of  Army  Regulations  in  general  are  properly  chargeable  as  neglects  (or 
aisorders)  to  the  prejudice  of  good  order  and  military  discipHne. 


150  AETICLES   OF  WAR  LXII  E. 

art.  61).  R.  16, 381,  July,  1865;  31,  m,  May,  1871;  Jfi,  32,  Oct.,  1877. 
C.  15538,  Nov.  24,  1903.  Striking  a  soldier,  or  using  any  unneces- 
sary violence  against  a  soldier  (by  an  officer).  P.  39,  25,  Feb.,  1890. 
Neglect  on  the  part  of  an  officer  of  engineers  to  oversee  the  execution 
of  a  contract  for  a  public  work  placed  under  his  charge,  the  due  fulfill- 
ment of  such  charge  being  a  military  duty.^  P.  31,  357,  Apr.,  1889. 
A  public  criticism  in  a  newspaper  (by  an  officer)  of  a  case  which  had 
been  investigated  by  a  court-martial  and  was  awaiting  the  action  of 
the  President.  R.  50,  86,  Mar.,  1886.  Assuming  (by  an  officer)  to 
copyright  as  owner,  and  thus  asserting  the  exclusive  right  to  publish, 
in  an  abridged  form,  the  Infantry  DriU  Regulations,  property  of  the 
United  States,  and  the  formal  official  publication  of  which  had 
already  been  announced  in  orders  by  the  Secretary  of  War.  P.  50, 
373,  Dec,  1891;  62,  156,  Oct.,  1893.  Selling  condemned  military 
stores  (by  an  officer)  without  due  notice,  and  not  suspending  the  sale 
when  better  prices  could  have  been  obtained  by  deferring  it,  in  vio- 
lation of  Army  Regulations.  P.  50,  44^,  Dec,  1891.  Misconduct  by 
a  soldier  at  target  practice,  consisting  of  breaches  of  the  published 
instructions,  false  statements,  or  markings  with  a  view  fraudulently 
to  increase  a  score,  etc.  P.  20,  357,  Nov.,  1887;  21,  256,  Dec,  1887. 
Violation  (by  a  soldier)  of  a  pledge  given  to  his  commanding  officer 
to  abstain  from  intoxicating  liquors,  on  the  faith  of  which  a  previous 
offense  was  condoned.  P.  44,  11,  Nov.,  1890;  C.  22246,  Oct.  22, 
1907.  Bigamy  (by  a  soldier)  committed  at  a  military  post.  P.  21, 
430,  Jan.,  1888.  Disobedience  of  orders  by  a  general  prisoner. 
C.  16220,  Apr.  26,  1904.  Absence  from  quarters  between  an  unan- 
nounced inspection  and  reveille.  G.  3694,^  Mar.  11,  1909.  Attempt 
to  commit  rape,  or  assault  and  battery  with  intent  to  commit  rape. 
C.  23910,  Nov.,  23, 1908.  Failure  to  pay  a  debt  due  to  post  exchange 
or  post  laundry.  C.  11776,  Dec  17,  1901.  Failure  to  pay  debt 
when  such  conduct  is  to  the  prejudice,  etc.  C.  5482,  Dec,  1898; 
5931,  Mar.,  1899. 

LXII  E.  The  following  acts  have  been  held  not  to  be  cognizable 
as  offenses  under  tliis  article :  A  mere  breach  of  the  peace  committed 
by  a  soldier  (while  absent  alone  and  at  a  distance  from  his  post  ^)  in 
a  street  of  a  city,  and  in  violation  of  a  municipal  ordinance.  R.  33, 
277,  Aug.,  1872.  Pecuniary  transactions  between  enlisted  men  of  a 
culpable  character,  but  in  their  private  capacity  and  not  directly 
affecting  the  service  or  impairing  military  discipline.  R.  11,  490, 
Feb.,  1865;^  18,  380,  Nov.,  1865;  36,  48O,  May,  1875.  Speculating 
and  gambling  in  stocks  by  a  disbursing  officer,  the  proper  perform- 
ance of  whose  military  duty  was  not  affected.  (But  recommended 
that  he  be  relieved  from  the  duty  of  disbursing  public  money.)  R.  17, 
22,  July,  1865.  Reenlisting  by  the  procurement  of  the  recruiting 
officer,  after  having  been  discharged  for  a  disability  still  continuing; 
the  act  being  in  good  faith,  and  the  alleged  offense  being  committed 
before  the  party  could  be  said  to  have  fully  come  into  the  service. 
R.  6,  203,  June,  186 4.  A  resort  to  civil  proceedings  by  suit  against 
a  superior  officer  on  account  of  acts  done  in  the  performance  of  mil- 
itary duty.     But  Tield  that,  if  the  verdict  should  be  for  the  defendant, 

1  See  Runkle  v.  U.  S.,  19  Ct.  Cls.,  396,  411,  412. 

2  See  S.  0.  206,  Dept.  Mo.,  1895;  do.  5,  id.,  1896,  and  the  order  prescribing  maximum 
punishments.    Coui't-Martial  Manual  (1908,  p.  53). 


ARTICLES   OF   WAR  LXII   F.  151 

and  it  should  appear  that  the  suit  was  without  probable  cause  and 
malicious,  a  charge  under  tliis  article  might  perhaps  be  sustainable. 
P.  IfSy  3,  Jan.,  1891.  The  mere  loaning  of  money  at  usurious  or 
excessive  rates  of  interest  by  a  noncommissioned  officer  to  privates, 
unless  it  should  clearly  be  made  to  appear  that  such  conduct  pro- 
moted desertions  or  other  results  prejuoicial  to  the  discipline  of  the 
command;  but  as  the  practice  in  this  case  had  been  long  continued 
and  was  clearly  demorahzing,  advised  that  the  noncommissioned 
officer  be  summarily  discharged.  P.  63,  173,  Apr.,  1892.  The 
becoming  infected,  by  a  soldier,  with  a  disease  unfitting  him  for  serv- 
ice, as  the  result  of  vicious  conduct.  P.  61, 396,  Sept.,  1893;  G.  234^9, 
Apr.  5,  1909. 

LXII  F.  Held  that  the  sixty-second  article  of  war  is  broad  enough 
to  include  the  offense  of  manslaughter  to  the  prejudice  of  good  order 
and  mihtary  discipHne.  R.  11,  592,  Mar.,  1865;  25,  592,  June,  1868; 
38,  579,  Apr.,  1877. 

IXIII  A.  Tliis  article  has  been  applied  principally  to  civilians 
serving  in  a  quasi-military  capacity  in  connection  with  troops  in  time 
of  war  and  in  the  theater  oi  war  {R.  7,  4^3,  Sept.,  1863,  and  511, 
Apr.,  1864);  such  as  teamsters,  watchmen.  Quartermaster's  Depart- 
ment employees,  and  employees  of  the  subsistence,  engineer,  and 
ordnance  departments,  provost  marshal  general,  etc.,  ambulance 
drivers,  tele^aph  operators,  interpreters,  guides,  contract  surgeons, 
employees  on  railroad  trains  and  on  transports.  R.  7, 116,  Feb.,  1864; 
9,  111,  146,  May,  1864;  11,  493,  Mar.,  1865;  12,  376,  Mar.,  1865; 
13,  459,  Mar.,  1865.  Thus  the  forces  employed  in  the  ''Ram  Fleet" 
on  western  waters  during  th6  Civil  War,  including  pilots,  engineers, 
etc.,  were  amenable  to  trial  under  this  article  {R.  2,  570,  June,  1863); 
and  civil  employees,  including  guides  for  the  Army,  during  warfare 
with  Indians.     R.  32,  386,  Mar.,  1872;  36,  435,  May,  1875. 

IXIII  A  1.  Held  that  retainers  to  the  camp,  such  as  officers'  servants 
and  the  like,  as  well  as  camp  followers  generally,  have  rarely  been 
subjected  to  trial  by  court-martial  in  our  service,  but  they  have  gen- 
erally been  dismissed  from  employment  for  breaches  of  discipline 
committed  by  them.  R.  23,  331,  Nov.  1866;  C.  10603,  June  13, 1901, 
and  Jan.  13,  1903;  11341,  Nov.  8,  1901;  25609,^  Nov.J2, 1909. 

IXIII  B.  The  jurisdiction  authorized  by  this  article  can  not  be 
extended  to  civilians  employed  in  connection  with  the  Army  in  time 
of  ^eace,^  nor  to  civilians  employed  in  such  connection  during  the 
period  of  an  Indian  war,  but  not  on  the  theater  of  such  war.  R.  38, 
557,  Apr.,  1877.  In  view  of  the  limited  theater  of  Indian  wars,  this 
exceptional  jurisdiction  is  to  be  extended  to  civilians,  on  account  of 
offenses  committed  during  such  wars,  with  even  greater  caution  than 
in  a  general  war.  R.  38,  64I,  June,  1877;  C.  10603,  Dec.  4,  1903; 
25609,  Nov.  8,  1909. 

IXIII  B  1.  Civilians  can  not  legally  be  subjected  to  military  juris- 
diction by  the  authority  of  this  article  ajter  the  war  (whether  general 
or  against  Indians),  pending  which  their  offenses  were  committed, 
has  terminated.  The  jurisdiction,  to  be  lawfully  exercised,  must  be 
exercised  during  the  status  belli.     R.  38,  64I,  supra. ^ 

IXIII  C.  Held  that  trials  of  civilians  under  this  article  of  war 
should  be  restricted  to  cases  of  imperative  necessity,  leaving  ordinary 

^  See  16  Op.  Atty.  Gen.,  13  and  48. 


152  ARTICLES   OF  WAR  LXIII  D. 

infractions  of  rule  by  civilian  employees  to  be  dealt  with  under  the 
regulations  governing  the  civil  service,  and  that  the  promulgating 
order  of  the  proceedmgs  of  such  trials  by  courts-martial  should  set 
forth  the  circumstances  which  render  a  military  trial  necessary. 
C.  10782,  June  29,1901. 

LXIII  D.  The  accepted  interpretation  of  the  sixty- third  article  of 
war  is  that  it  subjects  in  time  of  war  the  classes  of  persons  specified 
not  only  to  military  discipline  and  government  in  general,  but  also  to 
the  jurisdiction  of  courts-martial.     R.  23,  831,  Nov.  1,  1866. 

LXIII  E.  The  forfeitures  adjudged  against  the  pay  of  civilian 
employees  by  courts-martial  when  sentenced  under  the  sixty-third 
article  of  war  should  be  withheld  from  their  pay  and  allowed  to 
remain  in  the  appropriation  to  which  pay  pertains.  C.  9326,  Nov., 
1900;  10782,  June  29,  1901. 

LXV  A.  Though  any  unauthorized  leaving  of  his  confinement  by 
an  officer  in  close  arrest  is,  strictly,  a  violation  of  the  article,  it 
would  seem,  in  view  of  the  severe  mandatory  punishment  prescribed, 
that  an  officer  should  not  in  general  be  brought  to  trial  under  the 
same  unless  his  act  was  of  a  reckless  or  deliberately  insubordinate 
character.!     R.  5,  122,  Oct.,  1863;  27,  136,  Aug.,  1868. 

LXV  B.  Held  that  a  regimental  commander  is  a  ^'commanding 
officer ''  within  the  meaning  of  the  sixty-fifth  article  of  war,  although 
his  regiment  is  a  part  of  a  higher  command;  for  instance,  part  of  a 
brigade  or  of  a  brigade  post,  and  this  is  true  even  if  a  part  of  his 
regiment  is  detached  from  the  brigade  or  post  of  which  it  forms  a 
part.     C.  26U0,  Jan.  29,  1910. 

_  LXV  C.  When  an  officer  is  placed  in  arrest  in  the  operation  of  the 
sixty-fifth  article  of  war  and  subsequently  tried,  Tield  that  he  is  not 
entitled  to  be  released  from  arrest,  as  a  right,  until  the  proper  review- 
ing authority  has  acted  on  the  record  of  his  case.  0. 19854,  June  2A, 
1908. 

LXVI  A.  The  word  * 'crimes"  as  used  in  article  66  is  construed  to 
mean  serious  military  offenses.  So  that  a  soldier  should  not  ordinarily 
be  '' confined"  when  not  charged  with  one  of  the  more  serious  of  the 
military  offenses — in  other  words,  when  charged  only  with  an  offense 
of  a  minor  character.     P.  36,78,  Oct.,  1889;  60,  I4I,  Nov.,  1891. 

LXXIA.  The  term  ''within  ten  days  thereafter,"  held  to  mean 
after  his  arrest.    R.  9,  572,  Sept.,  1864;    C.  15659,  Dec.  19,  1903. 

LXXIB.^  Held  a  sufficient  compfiance  with  the  requirement  as 
to  the  service  of  charges,  to  have  served  a  true  copy  or  the  existing 
charges  and  specifications,  though  the  list  of  witnesses  appended 
to  the  original  charges  was  omitted,  and  though  the  charges  them- 
selves were  not  in  sufficient  legal  form,  and  were  intended  to  be 
amended  and  redrawn.     R.  25,  350,  Feb.,  1868. 

LXXI  C.  The  fact  that  cases  of  officers  put  in  arrest  "at  remote 
military  posts  or  stations"  are  excepted  from  the  application  of  the 
article  does  not  authorize  an  abuse  of  the  power  or  arrest  in  these 
cases.  And  where,  in  such  a  case,  an  arrest,  considering  the  facifities 
of  communication  with  the  department  headquarters  and  other  cir- 
cumstances,   was   in   fact   unreasonably   protracted   without   trial, 

*  It  is  no  defense  to  a  charge  of  breach  of  arrest  in  violation  of  this  article  that  the 
accused  is  innocent  of  the  offense  for  which  he  was  arrested.  Hough  (Practice),  494 ; 
id.  (Precedents),  19. 


ARTICLES  OF   WAR  LXXI  D.  153 

"held  that  the  officer  was  entitled  to  be  released  from  arrest  upon  a 
proper  application  submitted  for  the  purpose.  R.  32,  195,  ^84, 
Jan.  and  Apr.,  1872. 

IXXI  D.  Though  an  officer,  in  whose  case  the  provisions  of  this 
article  in  regard  to  service  of  charges  and  trial  have  not  been  com- 
pUed  with,  is  entitled  to  be  released  from  arrest,  he  is  not  authorized 
to  release  himself  therefrom.  If  he  be  not  released  in  accordance 
with  the  article,  ho  should  apply  for  his  discharge  from  arrest, 
through  the  proper  channels,  to  the  authority  by  whose  order  the 
arrest  was  imposed,  or  other  prcJper  superior.  R.  7,  163,  Feb.,  1864; 
8,  61,  Mar.,  1864;  9,  467,  650,  Aug.,  1864;  18,  161,  Sept.,  1865;  24, 
387,  580,  Mar.  and  May,  1867;  C.  16131,  Feb.  16,  1905. 

IXXII  A.  The  authority  to  order  a  court  under  this  article  is  an 
attribute  of  command.  Thus  a  department  commander,  detached 
and  absent  from  his  command  for  any  considerable  period  by  reason 
of  having  received  a  leave  of  absence  (whether  of  a  formal  or  informal 
character),  or  having  been  placed  upon  a  distinct  and  separate  duty 
(as  that  of  a  member  of  a  court  or  board  convened  outside  his  depart- 
ment, for  example),  is  held  to  be  in  a  status  incompatible  with  a  full 
and  legal  exercise  of  such  authority,  and  therefore  incompetent 
during  such  absence  to  order  a  general  court-martial  as  department 
commander,^  even  though  no  other  officer  has  been  assigned  or  has 
succeeded  to  the  command  of  the  department.^  R.  44,  63,  July, 
1880.  (See  One  hundred  and  fourth  article.)  Nor  can  a  department 
commander  thus  absent  delegate  such  authority  to  a  staff  officer  or 
other  subordinate,  to  be  exercised  by  him.  R.  43,  264,  ^^^,  -^iar. 
and  Avr.,  1880;  C.  1499,  July,  1895.  Nor,  where  a  general  court- 
martial  duly  convened  by  a  department  commander  has,  at  a  time 
when  the  commander  is  thus  absent  from  his  command  been  reduced, 
by  an  incident  of  the  service,  below  five  members,  can  another  member 
legally  be  detailed  upon  the  court  by  the  assistant  adjutant  general 
or  other  subordmate  officer  remaining  in  charge  of  the  headquarters; 
since  such  a  detail  would  be  an  exercise  of  a  portion  of  the  authority 
vested  by  this  article  in  the  commander,  and  which  can  in  no  part 
be  delegated.  R.  4S,  332,  June,  1880;  C.  16710,  Feb.  27,  1906; 
22162,  Oct.  10,  1910.  (See  seventy-fifth  article.) 
'  LXXII  B.  Where  a  commander  empowered  by  this  article  to  con- 
vene a  general  court-martial,  declines,  in  the  exercise  of  his  discretion, 
to  approve  charges  submitted  to  him  by  an  inferior  and  to  order  a 
court  thereon,  his  decision  should,  in  general,  be  regarded  as  final. 
R.  32,  323,  Feb.,  1872. 

LXXII  C  1 .  A  general  court  martial,  convened  by  the  division 
commander  (a  major  general),  duly  acting  as  department  commander 
in  the  absence  of  the  regular  department  commander,  is  legally  con- 
vened by  a  general  officer  commanding  a  department  in  the  sense  of 
this  article.     P.  26,  418,  Sept.,  1888. 

LXXII  D  1.  A  corps  commander  is  held  by  the  Secretary  of  War  to 
be  a  commander  of  an  army  in  the  field,  and  may  convene  a  court- 

^  In  absence  of  le^slation  or  of  orders  from  competent  authority  forbidding  it, 
personal  presence  within  the  territorial  limits  of  his  command  is  not  essential  to  the 
vahdity  of  an  order  given  by  a  department  commander  appointing  a  court-martial 
within  such  limits.     (16  Op.  Atty.  Gen.,  678.) 

^  See  G.  C.  M.  O.  9,  Dept.  of  Columbia,  1880:  and  par.  195,  A.  R.,  as  amended  by 
G.  O.  20,  A.  G.  O.,  1901.  ,         >         y  >  ^ 


154  ARTICLES   OF    WAR  LXXII   E  1. 

martial  under  the  authority  of  this  article.^  A  corps  commander 
may  also  convene  such  court  where  the  division  or  separate  brigade 
commander  is  the  accuser  or  prosecutor,  by  authority  of  the  act  of 
December  24,  1861^  (12  Stat.,  330),  R.  7,  237,  Feb.,  1864.  But  sound 
principles  of  public  policy  require  that  only  the  highest  military 
authority  in  any  army  should  be  vested  with  the  final  power  of  the 
confirmation  and  execution  of  sentences  of  death  and  dismissal,  and 
the  act  of  December  24,  1861,  has  never  been  construed  as  conferring 
this  power  upon  a  corps  commander  when  his  command  is  not  a  sepa- 
rate and  distinct  army,  but  only,  as  in  the  case  of  corps  of  the  Army 
of  the  Potomac,  a  constituent  part  of  a  larger  body.^  R.  11,  5^3, 
Mar.,  1865;  C.  4277,  June  7,  1898;  4710,  July,  1898;  5121,  Oct.  8, 
1898;  8197,  May  3,  1901;  16710,  July  23,  1908. 

LXXII  E  1.  An  assistant  adjutant  general,  or  other  staff  officer  of 
a  department  commander,  is  not  empowered,  of  his  own  authority, 
in  the  absence  of  the  commander,  to  relieve  an  officer  duly  detailed 
upon  a  court-martial  by  such  commander,  any  more  than  he  is  so 
empowered  to  detail  a  new  officer  as  a  member  of  such  a  court.  R.  43, 
332,  June,  1880. 

IXXII  F  1.  The  ''Army  of  Cuban  Pacification"  was  ''an  army" 
within  the  meaning  of  the  seventy-second  article  of  war,  and  not  a 
territorial  division  or  department.  C.  16710,  Feb.  23,  1908. 
^  IXXII  G  1 .  A  lieutenant  colonel  in  temporary  command  of  a  ter- 
ritorial division,  department,  or  army,  is  without  authority  to  appoint 
a  general  court-martial.  C.  17335,  Jan.  7,  1905;  17212,  Feb.  13, 
1905;  16710,  Jan.  20,  1908;  18764,  Jan.  4,  1908. 

LXXII  G  2.  Held  that  an  officer  who  is  not  qualified  under  the 
seventy-second  article  of  war  to  convene  a  court-martial  can  not 
issue  orders  detailing  members  to  a  court  already  appointed,  even 
though  he  succeed  to  the  command  held  by  the  convening  officer. 
(7.  16710,  Aug.  25,  1904. 

LXXII  H.  When  troops  in  the  prosecution  of  a  practice  march  or 
while  engaged  in  a  joint  encampment  or  maneuver  pass  within  the 
territorial  limits  of  a  department,  they  pass,  for  court-martial  pur- 
poses, from  the  jurisdiction  of  the  department  in  which  they  are  per- 
manently stationed  into  that  of  the  commander  of  the  department  in 
which  they  are  temporarily  operating  because  of  the  duty  mentioned 
above.     G.  20052,  May  9,  1907. 

LXXII  I  1.  Whether  the  commander  who  convened  the  court  is 
to  be  regarded  as  the  "accuser  or  prosecutor"  in  the  sense  of  the 
article  in  question,  where  he  has  had  to  do  with  the  preparing  and 
preferring  of  the  charges,  is  mainly  to  be  determined  by  his  animus 
m  the  matter.  He  may  like  any  other  officer  initiate  an  investigation 
of  an  officer's  conduct  and  formally  prefer,  as  his  individual  act, 
charges  against  such  officer;  or  by  reason  of  a  personal  interest 
adverse  to  the  accused  he  may  adopt  practically   as  his  own  charges 

^  This  refers  to  the  old  sixty-fifth,  now  the  seventy-second,  article,  but  both  contain 
the  expression  "a  general  officer  commanding  an  army.  " 

2  Under  date  of  Aug.  5,  1898,  the  Secretary  of  War  decided  (circ.  30,  A.  G.  O.,  1898) 
that  "under  the  one  hundred  and  seventh  article  of  war  a  corps  commander  is  held 
to  be  a  commander  of  an  army  in  the  field  when  his  corps  is  not  a  constituent  part  of  a 
larger  body  and  he  may  *  *  *  confirm  sentences  of  dismissal  of  officers.  A  corps 
commander  may  also  convene  such  court  where  the  division  or  separate  brigade  com- 
mander is  the  accuser  or  prosecutor. " 


ARTICLES   OF   WAR  LXXII   I   1   a.  155 

initiated  by  another;  in  which  cases  he  is  clearly  the  accuser  or  prose- 
cutor within  the  article.  On  the  other  hand,  it  is  his  duty  to  deter- 
mine, when  the  facts  are  brought  to  his  knowledge,  whether  an  officer 
within  his  command  charged  with  a  military  ofTense  shall  in  the  inter- 
est of  discipline  and  for  the  good  of  the  service  be  brought  to  trial. 
To  this  end^lie  may  formally  refer  or  revise  or  cause  to  be  revised  and 
then  formally  referred,  charges  preferred  against  such  officer  by 
another;  or  when  the  facts  of  an  alleged  offense  are  communicated 
to  him,  he  may  direct  a  suitable  ofScer,  as  a  member  of  his  staff,  or  the 
proper  commander  of  the  accused,  to  investigate  the  matter,  formu- 
late and  prefer  such  charges  as  the  facts  may  warrant,  and  having 
been  submitted  to  him,  he  may  revise  and  refer  them  for  trial  as  in 
other  cases;  all  this  he  may  do  in  the  proper  performance  of  his  offi- 
cial duty  without  becoming  the  accuser  or  prosecutor  in  the  case.* 
Of  course,  he  can  not  be  deemed  such  accuser  or  prosecutor  where  he 
causes  charges  to  be  preferred  and  proceeds  to  convene  the  court  by 
direction  of  the  Secretary  of  War  or  a  competent  military  superior. 
R.  7,  5,  Jan.,  1864;  H,  2S5,  Mar.,  1865;  30,  170,  Mar.,  1870;  32, 
78,  Oct.,  1871,  and  278,  July,  1872;  34, 104,  Feh.,  1873;  37, 189,  Dec, 
1875;  42,  626,  May,  1880;  55,  220,  Dec,  1887,  and  369,  Mar.,  1888; 
C.  2240,  May,  1896;  3913,  Mar.,  1898;  17212,  Feb.  17,  1905;  17335, 
Jan.  7, 1905;  I88O4,  Nov.  3, 1905;  19070,  Jan.  17, 1906;  19854,  J^ne 
29,  1906;  24986,  June  8,  1909;  25832,  Jan.  27,  1910. 

LXXII  1 1  a.  But  where  the  officer  wjio  made  an  investigation 
recommended  that  charges  be  not  preferred  and  the  department 
commander  nevertheless  directed  that  charges  be  prepared  and 
brought  the  accused  officer  to  trial  thereon,  lield,  that  such  action, 
taken  in  connection  with  the  further  fact  that  official  reports  pre- 
viously made  by  the  department  commander  and  the  nature  of  the 
offenses  alleged  manifestly  disclosed  on  his  part  an  interest  and 
animus  adverse  to  the  accused,  rendered  him  the  accuser  in  the  case. 
C.  2240,  May,  1896. 

LXXII  12.  It  is  not  essential  that  the  commander  who  convenes 
the  court-martial  for  the  trial  of  an  officer  should  sign  the  charges  to 

^  "In  a  certain  sense  the  commanding  general  is  the  prosecutor  in  nearly  every 
case  that  comes  before  a  military  com-t  within  the  limits  of  his  command;  for  in 
almost  every  case  charges  are  submitted  to  his  examination,  approval,  and,  if  neces- 
sary, amendment,  and  there  is  always  an  informal  preliminary  adjudication  by  him 
to  determine  that  the  case  is  one  which  is  proper  for  trial  by  a  court-martial  before  he 
orders  the  court-martial,  and  the  accused  to  appear  before  it.  It  is  quite  apparent 
that  in  such  case  he  ife  not  an  accuser  or  prosecutor  in  the  sense  of  the  article  of  war. 
*  *  *  He  does  not  alter  his  position  as  commanding  officer  and  become  accuser  or 
prosecutor  in  the  sense  of  the  *  *  *  article  *  *  *  ,  because  he  himself  sees 
that  the  charges  are  in  proper  and  definite  legal  form,  and  to  that  extent  superintends 
teir  preparation.     In  the  present  case,  the  charges  were  not  actually  signed  by  Gen- 

eal .    He  had  no  personal  relation  to,  or  knowledge  of,  the  matter  out  of  which 

the  charges  grew,  so  as  to  have  created  in  him  any  personal  feeling  or  interest  in  the 
conviction  of  the  prisoner.  In  considering  alike  the  question  of  the  propriety  of  a 
court-martial  and  the  preferment  of  charges,  he  dealt  with  the  matter,  as  a  command- 
ing officer  must  deal  in  a  large  number  of  instances,  upon  the  statements  and  allega- 
tions of  others,  and  decided  the  matter  in  his  own  mind  no  further  than  to  pronounce 
that  upon  the  information  before  him  the  alleged  offender  should  be  brought  before  a 
court-martial."  Opinion  of  Attorney  General  Devens,  Aug.  1,  1878,  vol.  16,  p.  109. 
It  is  also  held  in  this  opinion  that  where  the  record  of  the  trial  fails  to  indicate  that  the 
convening  officer  was  the  "accuser  or  prosecutor"  of  the  accused,  the  latter,  in  apply- 
ing to  the  Secretary  of  War  to  have  the  proceedings  pronounced  invalid  on  this  ground, 
may  establish  the  fact  by  the  production  of  affidavits  setting  forth  the  circumstances  of 
the  case  and  the  action  of  the  commander. 


156  ARTICLES  OF  WAR  LXXII  I  3  a. 

make  him  the  '' accuser  or  prosecutor"  within  the  meaning  of  this 
article.  Nor  is  the  fact  that  they  have  been  signed  by  another  con- 
clusive on  the  question  whether  the  convening  commander  is  the 
actual  accuser  or  prosecutor.  The  objection  that  such  commander 
is  such,  calls  in  question  the  legal  constitution  of  the  court,  and  while 
such  objection,  if  laiown  or  believed  to  exist,  should  regularly  be 
interposed  at  or  before  the  arraignment,  it  may  be  taken  during  the 
trial  at  any  stage  of  the  proceedings.^  If  not  admitted  by  the  j)rose- 
cution  to  exist,  the  accused  is  entitled  to  prove  it  like  any  other  issue. 
R,  1,  430,  Nov.,  1862;  8,  38,  Mar.,  I864. 

LXXII  I  3  a.  When  superior  authority  directs  the  commanding 
general  of  a  department  to  bring  a  certain  officer  to  trial  for  certain 
indicated  offenses  and  leaves  the  details  only  of  the  preparation  of 
the  charges  and  specifications  to  the  discretion  of  the  department 
commander,  held,  that  the  department  commander  by  thus  pre- 
paring the  charges  does  not  become  the  accuser  within  the  meaning 
of  the  seventy-second  article  of  war.  C.  17212,  Feb.  17, 1905;  17335, 
Jan.  7, 1905;  I88O4,  Nov.  3, 1905. 

IXXIII3  a  (1).  Held,  that  when,  in  the  execution  of  his  duties, 
the  department  commander  is  called  upon  to  order  the  department 
judge  advocate  to  formulate  and  sign  charges  made  by  another,  the 
department  commander  who  is  the  convening  authority  does  not 
thereby  become  the  accuser.     C.  3913,  Mar.  17,  1898. 

LXXIII  A.  According  to  the  general  definition  given  in  the  act  of 
March  3,  1799  (sec.  1114,  R.  S.),  a  division  is  an  organized  command 
consisting  of  at  least  two  brigades,  and  a  brigade  an  organized  com- 
mand consisting  of  at  least  two  regiments  of  mfantry  or  cavalry.  A 
brigade,  however,  to  be  a  "separate  brigade'^  in  the  sense  of  this 
article,  must  not  exist  as  a  component  part  of  a  division:  to  authorize 
its  commander  to  convene  a  general  court-martial  it  must  be  detached 
from  or  disconnected  with  any  division  and  be  operating  as  a  distinct 
command.  Thus,  where  it  appeared  from  the  record  of  a  trial  that 
the  court  was  convened  by  a  colonel  commanding  the  ''2d  Brigade, 
3d  Division,  14th  Army  Corps,"  Tield,  that  it  was  quite  clear  that  such 
colonel  did  not  command  a  "separate  brigade,"  and  was  therefore  not 
authorized  to  order  a  general  court-martial.  R.  3,  5^6,  Aug.,  1863; 
6,  250,  Aug.,  1864;  10,  53  and  106,  July  and  Aug.,  1864;  13,  29,  Dec, 
1864;  C.  4387,  June  16,  1898;  7777,  Mar.  6, 1900;  7778,  Mar.  6,  1900; 
8531,  Dec.  29,  1900;  17564,  Mar.  2,  1905. 

LXXIII  A  1.  On  August  31,  1864,  was  issued  from  the  War  Depart- 
ment a  general  order — No.  251  of  that  year — which  directed  as  fol- 
lows : ' 'Where  a  post  or  district  command  is  composed  of  mixed  troops, 
equivalent  to  a  brigade,  the  commanding  officer  of  the  department  or 
army  will  designate  it  in  orders  as  'a  separate  brigade,^  and  a  copy  of 
such  order  will  accompany  the  proceedings  of  any  general  court  mar- 
tial convened  by  such  brigade  commander.  Without  such  authority 
commanders  of  posts  and  districts  having  no  brigade  organization 
will  not  convene  general  courts  martial."  Under  this  order,  which 
was  applied  mainly  to  the  commands  designated  in  the  war  of  the 

*  Or  it  may  be  taken  to  the  reviewing  officer  with  a  view  to  his  disapproving  the 
sentence,  or  may  be  made  to  the  President  after  the  approval  and  execution  of  the 
sentence  with  a  view  to  having  the  same  declared  invalid  or  to  the  obtaining  of  other 
appropriate  relief. 


ARTICLES  OF   WAR  LXXIII   A  2.  157 

rebellion  as  ''districts,"  it  was  held  by  the  Judge  Advocate  General 
as  follows :  That  the  fact  that  a  district  command  was  composed  not 
of  regiments  but  of  detachments  merely  (which,  however,  in  the  num- 
ber of  the  troops,  were  equal  to  or  exceeded  two  regiments)  did  not 
preclude  its  bemg  designated  as  a  "separate  brigade,''  and  that  when 
so  designated  its  commander  had  the  same  authority  to  convene 
general  courts  martial  as  he  would  have  if  the  command  had  the  regu- 
lar statutory  brigade  organization  (R.  11,  110,  Nov.,  1864);  that 
though  a  district  command  embraced  a  force  considerably  greater 
than  that  of  a  brigade  as  commonly  constituted,  yet  if  not  designated 
by  the  proper  authorit}^  as  a  "separate  brigade"  its  commander 
would  be  without  authoritjr  to  convene  general  courts  martial  unless, 
indeed,  his  command  constituted  a  separate  "army"  in  the  sense  of 
the  sixty-fifth  (now  seventy-second)  article  (R.  13,34-0,  Feb.,  1865); 
that  it  was  not  absolutely  necessary,  to  give  validity  to  the  proceed- 
ings or  sentence  of  a  general  court  martial  convened  by  tne  com- 
mander of  a  separate  brigade,  that  the  command  should  be  described 
as  a  separate  brigade  in  the  caption  or  superscription  of  the  order 
convemng  the  court  and  prefixed  to  the  record,  or  even  that  a  copy 
of  the  order  designating  the  command  as  a  separate  brigade  should 
accompany  the  proceecSngs.  As  to  the  latter  feature  the  order  of 
1864  is  viewed  as  directory  merelv;  and  though  not  to  accompany 
the  record  with  a  copy  of  the  order  thus  constituting  the  command 
would  be  a  serious  irregularity,  as  would  be  also — though  a  less 
serious  one — the  omission  of  the  proper  formal  description  of  the 
command  from  the  convening  order,  yet  if  the  command  had  actually 
been  duly  designated,  and  in  fact  was,  a  separate  brigade,  and  this 
fact  existed  of  record  and  could  be  verified  from  the  official  records  of 
the  department  or  army,  the  omission  of  either  of  these  particulars, 
though  a  culpable  and  embarrassing  neglect  on  the  part  of  the  court 
or  judge  advocate,  would  not,  per  se,  invalidate  the  proceedings  or 
sentence.     R.  19,  280,  Dec,  1865,  and  681,  Sept.,  1866. 

LXXIII  A  2.  Held  that  the  force  under  the  provost  marshal  of  the 
city  of  Manila,  P.  I.,  in  April  and  May,  1901,  was  a  separate  brigade 
within  the  meaning  of  the  seventy-third  and  one  hundred  and  seventh 
articles  of  war.  Held,  therefore,  that  all  persons  subject  to  military 
law  who  were  stationed  or  temporarily  sojourning  in  the  city  of 
Manila  were,  for  the  purpose  of  court-martial  jurisdiction,  a  part 
of  his  command,  as  this  was  in  time  of  war.    {C.  10910,  Aug.  17, 1901 .) 

LXXIII  B  1.  The  different  organizations  which  composed  a  divi- 
sion had  been  taken  out  from  under  the  command  of  the  division 
commander  one  by  one  until  one  regiment  remained  under  the  com- 
mand of  the  division  commander  at  a  date  when  he  convened  a 
general  court-martial.  Held,  that  he  was  not  in  actual  command  of 
a  separate  brigade  and  therefore  had  no  authority  to  ^convene  a 
court-martial,  as  his  previous  authority  was  based  upon  his  command 
of  a  separate  brigade.     C.  5819,  Feb.  4,  1899. 

LXXIII  B  2.  Held,  that  "a  military  governor  of  a  district"  has 
no  authority  as  such  to  convene  a  court-martial.  The  record  of  a 
court-martial  appointed  by  such  officer  under  this  article  should  show 
that  the  court  was  convened  and  the  sentence  approved  by  him  in 
his  capacity  as  a  division  or  separate  brigade  commander.  G,  7776, 
7777,7778,  Mar,,  1900, 


158  ARTICLES   OF   WAR  LXXIII  B  3. 

LXXIII  B  3.  Where  the  caption  of  the  orders  appointing  two 
general  courts-martial  were  respectively,  ''Headquarters  2d  Detach- 
ment, Philippine  Expedition,  Steamer  China  at  sea,"  and  '^  Head- 
quarters Philippine  Island  Expeditionary  Forces,  4th  Expedition  (2d 
Section),  Steamer  Rio  de  Janeiro  at  sea,"  and  there  being  nothing 
with  the  records  to  show  that  the  detachment  or  section  had  been 
designated  or  was  in  fact  a  ''separate  brigade,"  Tield  that  the  sentences 
were  void.     G.  4847,  Aug.,  1898;  5086,  Sept.,  1898. 

LXXV  A  1 .  It  is  for  the  convening  authority  under  this  article  to 
determine  what  number  of  officers  can  be  convened  without  manifest 
injury  to  the  service,  and  his  decision  in  the  matter  is  conclusive.^ 
R.  3,  82,  June,  1863. 

LXXV  B  1 .  While  a  number  of  members  less  than  five  can  not  be 
organized  as  a  court  or  proceed  with  a  trial,  they  may  perform  such 
acts  as  are  preUminary  to  the  organization  and  action  of  the  court. 
Less  than  five  members  may  adjourn  from  day  to  day,  and  where 
five  are  present  and  one  of  them  is  challenged,  the  remaining  four 
may  determine  upon  the  sufficiency  of  the  objection.  R.  5,  319, 
Nov.,  1863. 

LXXV  B  2.  Wliere,  in  the  course  of  a  trial,  the  number  of  the  mem- 
bers of  a  general  court-martial  is  reduced  by  reason  of  absence,  chal- 
lenge, or  the  reheving  of  members,  the  court  may  legally  proceed 
with  its  business  so  long  as  Jive  members — the  minimum  quorum — 
remain;  otherwise  where  the  number  is  thus  reduced  below  five. 
R.  16,  649,  Sept.,  1865;  C.  22163,  Sept.  30,  1907. 

LXXV  B  3.  A  court  reduced  to  four  members  and  thereupon 
adjourning  for  an  indefinite  period  does  not  dissolve  itself.  In 
adjourning  it  should  report  the  facts  to  the  convening  authority  and 
wait  his  orders.  He  may  at  any  time  complete  it  by  the  addition 
of  a  new  member  or  members  and  order  it  to  reassemble  for  business. 
R.  5,  319,  supra;  39,  328,  Nov.,  1877. 

LXXVII'A  1 .  Held  that  th«  Phihppine  Scouts,  being  a  part  of  the 
Regular  Army  of  the  United  States,  are  not  other  forces  within  the 
meaning  of  the  seventy-seventh  article  of  war.  C.  19272,  Mar.  14, 
1906;  26772,  Mar.  2,1911. 

LXXVII  A  2.  Held  that  a  regular  officer  may  be  detailed  to  act  as 
judge  advocate  of  a  court  which  tries  a  volunteer  officer  or  soldier 
as  the  restriction  contained  in  the  seventy-seventh  article  of  war 
apphes  only  to  members  who  vote  on  the  question  of  guilt  or  inno- 
cence.    C.  13710,  Nov.  25,  1902. 

LXXVII  A  3.  Officers  and  soldiers  of  volunteers,  not  being  militia, 
are  as  much  a  part  of  the  Army  as  are  regular  officers  and  soldiers, 
but  in  view  of  the  terms  of  the  seventy-seventh  article  of  war  an 
officer  of  the  Regular  Army  is  not  eligible  for  detail  as  a  member  of 
a  court-martial  convened  for  the  trial  of  volunteer  officers  or  soldiers, 
nor  can  he  'legally  act  as  such  ^  even  though  he  holds  a  volunteer 
commission.^    R.  19,  670,  July,  1866;  C.  9875,  Apr.  26, 1909;  12682, 

^  It  was  thus  held  from  an  early  period  by  the  U.  S.  Supreme  Court.  See  Martin 
V.  Mott,  12  Wheaton,  19,  34—37  (1827);  Mullan  v.  U.  S.,  140  U.  S.,  240;  Swaim  t;. 
U.  S.,  165U.  S.,553,  559. 

2  See  McClaughry  v.  Deming,  186  U.  S.,  49. 

3  See  U.  S.  -y.  Brown,  206  U.  S.,  240. 


ABTICLES   OF   WAR   LXXVIII   A.  159 

May  27,  1902;  15511,  Nov.  20, 1903;  19272,  Mar.  14,  1906;  25249, 
Aug.  17,  1906;  25945,  Mar.  SI,  1910. 

LXXVIII  A.  Sovonty-eighth  article  of  war.* 

LXXXII  A  1.  It  is  not  essentid  that  the  '^officer  commanding" 
should  be  of  the  rank  of  field  officer.  A  commanding  officer,  though 
a  captain  or  lieutenant,  may  convene  a  court-martial  under  this  arti- 
cle, provided  he  has  the  required  command.     R.  8,  4<^5,  May,  ISO 4. 

LXXXII  A  2.  A  commanding  officer  is  not  authorized  to  detail  /nm- 
self,  with  two  other  officers,  as  a  court  under  tliis  (or  the  preceding) 
article.  R.  24,  263,  Jan.,  1867.  An  ''acting  assistant  surgeon,"  not 
being  an  officer  of  the  Army,  can  not  be  detailed  on  such  court.  R, 
30,  109,  Feb.,  1870. 

LXXXII  B.  The  general  term  "other  place"  is  deemed  to  be  in- 
tended to  cover  and  include  any  situation  or  locality  whatever — post, 
station,  camp,  halting  place,  etc.,  at  which  there  may  remain  or  be, 
however  temporarily,  a  separate  command  or  detachment  in  which 
different  corps  of  the  Army  are  represented,  as  indicated  in  the  next 
paragraph.  If  such  command,  so  situated,  contains  enough  officers, 
other  than  the  commander,  available  for  service  on  court-martial,  the 
commander  will  be  competent  to  exercise  the  authority  conferred  by 
this  article.  R.  44,  32,  June,  1880;  C.  856,  Jan.  8,  1895,  and  Sept.  2, 
190S. 

LXXXII  C  1.  Held,  in  view  of  the  early  orders*  relating  to  the 
subject  and  of  the  practice  thereunder,  that  the  presence  on  duty 
with  a  garrison,  detachment,  or  other  separate  command,  at  a  fort, 
arsenal,  or  other  post  or  place,  and  as  a  part  of  such  command,  of  a 
single  representative,  officer  or  soldier,  or  a  corps,  arm,  or  branch  of 
the  service  other  than  that  of  which  the  bulk  of  the  command  is  com- 
posed— as  an  officer  of  the  Quartermaster,  Subsistence,  or  Medical 
department,  a  chaplain,  an  ordnance  sergeant,  or  hospital  steward, 
an  officer  or  soldier  of  artillery  where  the  command  consists  of  infan- 
try or  cavalry,  or  vice  versa,  etc. — might  be  deemed  sufficient  to  fix 
upon  the  command  the  character  of  one  "where  the  troops  consist  of 
different  corps,"  in  the  sense  of  this  article,  and  to  empower  the  com- 
manding officer  to  order  a  court-martial  under  the  same.  R.  7,  174, 
Feb.,  1864;  H,  48,  Feb.,  1865;  21, 118,  Dec,  1865;  26, 254,  Dec,  1867. 
The  presence,  however,  with  the  command,  of  a  civil  employee  of  the 
Army  (as  an  "acting  assistant  surgeon")  could  have  no  such  effect. 
R.  8,  483,  May,  I864. 

LXXXII  C  2.  Held  that  the  commanding  officer  of  the  Army  and 
Navy  General  Hospital  at  Hot  Springs,  Ark.,  is  authorized,  under  the 
eighty-second  article  of  war,  to  appoint  a  garrison  court-martial  at 
that  station  when  the  patients  at  the  hospital  consist  of  members  of 
different  arms  of  the  service.     C.  856,  Sept.  1,  1901. 

1  Attorney  General  Rush,  Sept.  11,  1817,  decided  that  when  a  marine  officer  was  to 
be  tried  while  the  marines  were  associated  with  the  Regular  Array,  officers  of  the 
Marine  Corps  should  be  associated  with  officers  of  the  Army  in  the  membership  of 
the  court.  President  Monroe  approved  this  decision  by  indorsement  Sept.  19.  1817. 
(Seealso2  0p.  Atty.  Gen.,3n.) 

2  The  original  order  is  G.  O.  5,  Hdqrs.  of  Army,  1843.  And  see  the  law  as  announced 
later  m  G..  0. 13,  Fourth  Mil.  Dist.,  1867. 


160  ARTICLES   OF   WAR  LXXXIII  A. 

LXXXIII  A.  While  inferior  courts^  have,  equally  with  general 
courts,  jurisdiction  of  all  military  offenses  not  capital,  committed  by 
enHsted  men,  yet,  in  view  of  the  limitations  upon  their  authority  to 
sentence,  it  is  m  general  inexpedient  to  resort  to  them  for  the  trial  of 
the  graver  offenses,  such  as  larcencies,  aggravated  acts  of  drunken- 
ness, protracted  absences  without  leave,  etc.,  a  proper  and  adequate 
punishment  for  which  would  be  beyond  the  power  of  such  tribunals. 
The  more  serious  offenses  should,  where  practicable,  be  referred  for 
trial  to  general  courts,  which  alone  are  vested  with  a  full  discretion  to 
impose  punishment  in  proportion  to  the  gravity  of  the  offense. 
R.  7,  86,  201,  Jan.  and  Feb.,  1864;  H,  ^10,  Dec,  1864;  16,  315,  June, 
1865;  26,  487,  533,  Mar,  and  Apr.,  1868;  42,  33,  Nov.,  1878.  An 
inferior  court  can  not,  however,  legally  decline  to  try  or  sentence  an 
offender  on  the  ground  that  it  is  not  empowered  under  this  article  to 
impose  a  punishment  adequate  to  his  actual  offense.  B.  28,  57,  Aug., 
1868;  C.  11360,  Oct.  10,  1901;  11861,  Jan.  7,  1902;  13734,  Nov.  23, 
1902;  17352,  Jan.  11,  1905;  18036,^  May  20,  1905. 

LXXXIII  B  1.  Capital  offenses  (i.  e.,  offenses  capitally  punishable), 
not  being  within  the  jurisdiction  of  inferior  courts,  such  courts  can 
not  take  cognizance  or  acts  specifically  made  punishable  by  article  21, 
however  shght  be  the  offenses  actually  committed. ^  R.  2,  189,  Apr., 
1863;  11,  210,  Dec,  1864;  ^4,  195,  Jan.,  1867;  26,  533,  Apr.,  1868; 
28,  53,  Aug.,  1868;  32,  334,  Feb.,  1872;  G.  3445,  Aug.  17, 1897;  10946, 
July  30,  1901;  14761,  June  5, 1903. 

LXXXIII  C.  The  Hmitations  imposed  by  the  article  have  reference 
of  course  to  single  sentences.  For  distinct  offenses  made  the  subject 
of  different  trials  resulting  in  separate  sentences,  a  soldier  may  be 
placed  at  one  and  the  same  time  under  several  penalties  of  forfeiture 
and  imprisonment,  or  of  either,  exceeding  together  the  limit  affixed 
by  the  article  for  a  single  sentence.^    R.31,3,  Feb.,  1870. 

LXXXIII  C  1  a.  A  sentence  forfeiting  pecuniary  allowances  in 
addition  to  pay,  where  the  entire  forfeiture  amounted  to  a  sum 
greater  than  one  month's  pay,  Tield  not  authorized  under  this  article. 
R.  29,  401,  Nov.,  1869.  ^ 

LXXXIII  C  2.  The  limitation  of  the  authority  of  inferior  courts 
in  regard  to  sentences  of  imprisonment  and  fine,  lield  not  to  preclude 
the  imposition  by  them  of  other  punishments  sanctioned  by  the  usage 
of  the  service;  such,  for  example,  as  reduction  to  the  ranks,  either 
alone  or  in  connection  with  those  or  one  of  those  expressly  men- 

^  Regimental  and  garrison  courts-martial  and  summary  courts  detailed  under  exist- 
ing laws  to  tiy  enlisted  men  shall  not  have  power  to  try  capital  cases  or  commissioned 
officers,  but  shall  have  power  to  award  punishment  not  to  exceed  confinement  at  hard 
labor  for  three  months  or  forfeiture  of  three  months'  pay,  or  both,  and  in  addition 
thereto,  in  the  case  of  noncommissioned  officers  reduction  to  the  ranks  and  in  the  case 
of  first-class  privates  reduction  to  second-class  privates:  Provided,  That  a  summary 
court  shall  not  adjudge  confinement  and  forfeiture  in  excess  of  a  period  of  one  month, 
unless  the  accused  shall  before  trial  consent  in  writing  to  trial  by  said  court,  but  in 
any  case  of  refusal  to  so  consent  the  trialmay  be  had  either  by  general,  regimental,  or 
garrison  court-martial,  or  by  said  summary  court,  but  in  case  of  trial  by  said  summary 
court  without  consent  as  aforesaid,  the  court  shall  not  adjudge  confinement  or  for- 
feiture of  pay  for  more  than  one  month.    Act  of  Mar.  2,  1901  (31  Stat.,  951). 

2  G.  O.  21,  Hdqrs.  of  Army,  1858.  And  see  G.  0.  18,  War  Dept.,  1859;  do.  9,  Dept. 
of  Utah,  1858,  where  the  proceedings  of  garrison  courts  in  cases  of  capital  offenses  are 
pronounced  void. 

3  See  G.  0. 18,  War  Department,  1859. 


ARTICLES   OF   WAR  LXXXIV  A.  161 

tioned.*  R.  30,  667,  Oct.,  1870;  U,  659,  Jan.,  18S2;  C.  1397,  Sept., 
1895. 

LXXXIV  A.  Tliis  article  makes  the  administering  to  the  court  of 
the  form  of  oath  thereby  prescribed  an  essential  preliminary  to  its 
entering  upon  a  trial.  Until  the  oath  is  taken  as  specified,  the  court 
is  not  qualified  ''to  try  and  determine."  R.38, 196,  July,  1876.  The 
arraignment  of  a  prisoner  and  reception  of  his  plea — which  is  the  com- 
mencement of  the  trial — before  the  court  is  sworn,  is  without  legal 
('fleet.  R.  9,  293,  June,  1864;  H,  323,  Dec,  I864.  The  article 
requires  that  the  oath  shall  be  taken  not  by  the  court  as  a  whole,  but 
by  ''each  member."  Where,  therefore,  all  the  members  are  sworn 
at  the  same  time,  the  judge  advocate  will  preferably  address  each 
member  byname,  thus,  "You,  A.  B.,  C.  D.,  E.  F.,  etc.,  do  swear,"  etc. 
li.  13,  483,  Mar.,  1865.  A  member  added  to  the  court,  after  the  mem- 
bers originally  detailed  have  been  duly  sworn,  shoud  be  separately 
sworn  by  the  judge  advocate  in  the  full  form  prescribed  by  the  article; 
otherwise  he  is  not  qualified  to  act  as  a  memoer  of  the  court.  R.  10, 
563,  Nov.,  1864;  H,  ^50,  Apr.,  1865.  A  member  who  prefers  it  may 
be  affirmed  instead  of  swom.^     R.  2,  562,  June,  1863. 

LXXXIV  B.  The  members  are  sworn  to  try  and  determine  tJie 
matter  before  them  at  the  time  of  the  administermg  of  the  oath.  In  a 
case,  therefore,  where,  after  the  court  had  been  sworn  and  the  accused 
had  been  arraigned  and  had  pleaded,  an  additional  charge,  setting 
forth  a  new  and  distinct  offense  was  introduced  into  the  case,  and  the 
accused  was  tried  and  convicted  upon  the  same ;  held  that,  as  to  this 
charge,  the  proceedings  were  fatally  defective,  the  court  not  having 
been  sworn  to  try  and  determine  such  charge.^    R.  24,  513,  May,  1867. 

LXXXIV  C  1.  The  object  of  the  secrecy*  in  regard  to  the  vote  of  a 
member  is  to  place  him,  when  voting,  beyond  the  reach  of  influences 
which  might  induce  him  to  act  contrary  to  his  judgment  on  the  merits 
of  the  case.     P.  63,  263,  Jan.,  1894. 

LXXXIV  C  2.  Where  the  vote  of  each  member  of  the  court  upon 
one  of  several  specifications  upon  which  the  accused  was  tried,  was 
stated  in  the  record  of  trial,  held  that  such  statement  was  a  clear 
violation  of  the  oath  of  the  court,  though  it  did  not  affect  the  validity 
of  the  proceedings  or  sentence.  R.  2,  59,  Mar.,  1863.  A  statement 
in  the  record  of  trial  to  the  effect  that  all  the  members  concurred  in 
the  finding  or  in  the  sentence,  while  it  does  not  vitiate  the  proceedings 
or  sentence,  is  a  direct  violation  of  the  oath  prescribed  by  this  article. 
R.  2,  76,  Mar.,  1863;  7,  3,  Jan.,  1864;  G.  13366,  Sept.  29,  1902. 

^  See  Manual  for  Courts-Martial  (1908),  p.  81,  par.  13.  The  summary  court  act 
approved  June  18,  1898,  specifically  recognizes  and  authorizes  reduction  to  the  ranks 
as  a  punishment  by  such  court.    See  also,  amended  eighty-third  article,  note  1,  ante. 

2  See  sec.  1,  Revised  Statutes. 

3  See  G.  C.  M.  O.  39,  War  Dept.,  1867;  G.  0.  13,  Northern  Dept.,  1864. 

^  The  words  "a  court  of  justice"  are  deemed  to  mean  a  civil  or  criminal  court  of 
the  United  States,  or  of  a  State,  etc.,  and  not  to  include  a  court-martial.  A  case  can 
hardly  be  supposed  in  which  it  would  become  proper  or  desirable  for  a  court-martial 
to  inquire  into  the  votes  or  opinions  given  in  closed  court  by  the  members  of  another 
similar  tribunal.  The  only  case  which  has  been  met  with  in  which  the  members  of  a 
court-martial  have  been  required  to  disclose  their  votes  by  the  process  of  a  civil  court 
is  that  of  In  re  Mackenzie  (1  Pa.  Law  J.  R.  356),  in  which  the  members  of  a  naval 
court-martial  were  compelled,  against  their  objections,  to  state  their  votes  as  given 
upon  the  findings  at  a  particular  trial.  In  the  present  corresponding  British  article 
the  words  "or  a  court-martial"  are  added  after  the  words  "a  court  of  justice." 

31106°— 12 11 


162  ARTICLES   OF   WAR  LXXXIV  C   3. 

IXXXIV  C  3.  Held  that  the  reopening  o^f  the  court,  after  a  con- 
viction, to  receive  evidence  of  previous  convictions,  was  not  a  viola- 
tion of  the  eighty-fourth  article  of  war.  The  procedure  is  in  accord- 
ance with  the  spirit  of  the  legislation  which  excludes  judge  advocates 
from  closed  sessions — to  place  prosecution  and  defense  on  a  more 
equal  footing,  by  allowing  the  accused  to  be  present  when  evidence 
of  previous  convictions  is  submitted  and  to  scrutinize  and  test  the 
legality  of  the  same.     P.  63,  ^9,  Dec,  1893;  C.  3097,  Apr.,  1897. 

LXXXIV  C  4.  The  disclosing  of  the  finding  and  sentence  to  a  clerk 
by  permitting  him  to  remain  with  the  court  at  the  final  deliberation 
and  enter  the  judgment  in  the  record,  is  a  violation  of  the  oath  and  a 
grave  irregularity,  though  one  which  does  not  affect  the  validity  of 
the  proceedings  or  sentence.     R.  28,  1^6,  Oct.,  1868. 

LXXXVI  A.  The  power  of  a  court-martial  to  punish,  under  this 
article,  being  confined  practically  to  acts  done  in  its  immediate  pres- 
ence,^ such  a  court  can  nave  no  authority  to  punish,  as  for  a  contempt, 
a  neglect  by  an  officer  or  soldier  to  attend  as  a  witness  in  compliance 
with  a  summons.2     R.  5,  172,  Oct.,  1863. 

LXXXVI  A  1.  A  court  martial  is  authorized  to  exclude  from  its 
session  any  person  who,  it  has  good  reason  to  believe,  will  endeavor 
to  intimidate  or  interrupt  the  witnesses,  or  otherwise  conduct  himself 
in  a  disorderly  manner.     R.  29,  237,  Aug.,  1869. 

LXXXVI  B  1 .  A  court  martial  has  none  of  the  common-law  power 
to  punish  for  contempt  vested  in  the  ordinar}^  courts  of  justice,  but 
only  such  authority  as  is  given  it  by  this  article.  Thus  lield  that  a 
court-martial  was  not  authorized  to  punish,  as  for  a  contempt,  under 
this  article  (or  otherwise),  a  civilian  witness  duly  summoned  and 
appearing  before  it,  but,  when  put  on  the  stand,  declining  (without 
disorder)  to  testifv.^  R.  9,  208,  and  278,  June,  1864;  21,  215,  Feb., 
1866;  42,  595,  Apr.,  1880;  49,  306,  Aug.,  1885. 

LXXXVI  B  1  a.  Where  a  contempt  within  the  description  of  this 
article  has  been  committed,  and  the  court  deems  it  proper  that  the 
offender  shall  be  punished,  the  proper  course  is  to  suspend  the  regular 
business,  and  after  giving  the  party  an  opportunity  to  be  heard, 
explain,  etc.,*  to  proceed — if  the  explanation  is  insufficient — to 
impose  a  punishment;  resuming  thereupon  the  original  proceedings. 
The  action  taken  is  properly  summary,  a  formal  trial  not  bein^  called 
for.  Close  confinement  in  quarters  or  in  the  guardhouse  during  the 
trial  of  the  pending  case,  or  forfeiture  of  a  reasonable  amount  of  pay, 
has  been  the  more  usual  punishment.^  R.  30,  361,  570,  May  and 
Aug.,  1870. 

^  It  was  held  by  the  Secretary  of  War  in  the  case  of  Lieut.  Col.  Backenstos — G.  0. 14, 
War  Dept.,  1850— that  a  court-martial  had,  under  this  article,  no  power  to  punish  its 
own  members. 

2  As  to  the  power  of  courts  of  inquiry  to  punish  for  contempt,  see  note  to  one  hundred 
and  eighteenth  article. 

3  By  sec.  1  of  the  act  of  Mar.  2, 1901,  "  to  pevent  the  failure  of  military  justice,  "etc., 
provision  is  made  for  the  punishment  by  civil  authority  of  civilians  refusing  to  appear 
or  testify  before  general  courts-martial. 

*  See  G.  C.  M.  O.  37,  Fourth  Mil.  Dist.,  1868. 

*  Instead  of  proceeding  against  a  military  person  for  a  contempt  in  the  mode  con- 
templated by  this  article,  the  alternative  course  may  be  pursued  of  bringing  him  to 
trial  before  a  new  court  on  a  charge  for  a  disorder  under  art.  02.  Compare  Samuel, 
634;  Simmons,  sec.  434.  The  latter  course  has  not  unfrequently  been  adopted  in  our 
practice. 


ARTICLES   OF   WAR  LXXXVI   Bib.  163 

IXXXVI  Bib.  The  authority  of  the  judge  advocate  (under  sec. 
1202,  R.  S.)  to  issue  "like  process  to  compel  witnesses  to  appear  and 
testify  which  courts  of  criminal  jurisdiction  within  the  State,  Terri- 
tory, or  district  where  such  mihtary  courts  may  be  ordered  to  sit, 
imiy^  lawfully  issue,"  does  not  vest  the  court-martial  with  power  to 
punish  a  civilian  witness  for  contempt  who  refuses  to  testify.  R.  49, 
806,  Aug.,  1885. 

LXXXVIII  A.  Held  that  the  following  are  sufiicient  grounds  of 
challenge  to  a  member  of  a  court-marti3 :  That  the  member  is  the 
author  of  the  charges  and  a  material  witness  in  the  case.  R.  2,  584, 
June,  1863;  20, 18,  Oct,  1865;  31,  210,  Mar.,  1871;  37,  43,  Sept.,  1875; 
315,  Feb.,  1876;  39, 240,  Oct.,  1877.  Or  that  he  is  the  prosecutor  in  the 
case.  R.  33,  204,  July,  1872;  33,  257,  Aug.,  1872;  36,  257,  Feb.  1875; 
37, 315,  Feb.,  1876.  Or  that  he  had  expressed  an  opinion  based  upon  the 
knowledge  of  the  facts  that  the  accused  would  be  convicted  whichever 
way  he  might  plead.  R.  37,  491 ,  Apr. ,  1876.  Or  that  a  member  was 
present  at  a  mutiny,  as  a  result  of  which  the  accused  was  before  the 
court  on  a  charge  mvolving  homicide.  R.  55,  529,  Apr.,  1888.  Or 
on  a  charge  of  conduct  unbecoming  an  officer  and  a  gentleman  that 
the  member  when  challenged  said  that  he  would  not  associate  with 
the  accused,  and  that  he  had  so  stated.  R.  24,  584,  Mar.,  1867.  Or 
that  the  member  had  previously  investigated  the  case  as  a  member  of 
a  board  of  survey.  R.  36, 599,  July,  1875.  Or  as  a  member  of  a  court 
of  inquiry.  R.  23,  406,  Apr.,  1867.  Or  as  a  member  of  a  previous 
court-martial.     R.  28,  181,  Oct.,  1868. 

LXXXVIII  B.  Held  that  a  member  of  a  court  should  not  be  excused* 
on  challenge  for  the  following  reasons :  The  mere  fact  that  he  is  to  be 
a  witness  (it.  2,  584,  June,  1863;  S3, 137,  July,  1872;  C.  10973,  Feb.  28, 
1902) ;  or  that  he  ministerially  or  by  order  of  a  superior  preferred  the 
charges  {R.  9,  258,  June,  1864) ;  or  that  ho  was  in  command  of  the 
accused  {R.  7,  534,  June,  1864;  ^j  631,  Mar. ,.1867)]  or  that  he  is 
junior  to  the  accused,  unless  he  will  gain  his  promotion  by  the  dis- 
missal of  the  accused  {R.  33,  137,  July,  1872;  37,  189,  Dec,  1875;  38, 
366,  376,  Oct.  and  Nov.,  1876;  55,  220,  Dec,  1887);  or  that  the 
member  entertained  an  opinion  as  to  the  impropriety  of  acts  such  as 
those  charged  against  the  accused  unaccompanied  by  any  opinion  as 
to  his  guilt  (P.  64,  Mar.,  1894) ;  or  that  the  member  had  had  a  dis- 
agreement with  the  accused  and  the  accused  thought  that  the  member 
''might  be  prejudiced,"  although  the  member  declared  that  he  was 
not  conscious  of  any  prejudice  to  the  interests  of  the  accused.  R.  53. 
225,  Apr.,  1887. 

LXXXVIII  C.  Where  before  arraignment,  the  accused  (an  offi- 
^^i")!^ without  having  personal  knowledge  of  the  existence  of  a  ground 
^r  challenge  to  a  member,  had  credible  information  of  its  existence, 
held  that  he  should  properly  have  raised  the  objection  before  the 
members  were  sworn,  and  that  the  court  was  not  in  error  in  refusing 
to  allow  him  to  take  it  at  a  subsequent  stage  of  the  trial.  R.  41,  41 4, 
oept.,  1878. 

^^i^^y^^^  ^'  "^^^  court,  as  a  whole,  is  not  subject  to  challenge, 
yet  all  the  members  may  be  challenged  provided  they  are  challenged 
separately.  R.  28,  632,  May  26,  1869;  30,  361,  May  23,  1870;  38, 
53,  Jan.  31,  1876;  53,  225,  Apr.  1,  1887.      '         '         '       ' 

XCI  A  1.  Where  the  evidence  of  high  officers  or  public  officials— 
as  a  department  commander,  or  chief  of  a  bureau  of  the  War  Depart- 


164  ARTICLES  OF   WAR  XCI  B. 

ment-^is  required  before  a  court-martial,  the  same,  especially  if  the 
court  is  assembled  at  a  distant  point,  should  be  taken  by  deposition, 
if  authorized  under  tliis  article.  Such  officers  should  not  be  required 
to  leave  their  public  duties  to  attend  as  witnesses,  except  where  their 
depositions  will  not  be  admissible,  and  where  the  case  is  one  of  special 
importance  and  their  testimony  as  essential.  B.  7,  5,  Jan.,  1864. 
The  Secretary  of  War  should  not  be  required  to  attend  as  a  witness, 
or  to  give  his  deposition  in  a  military  case,  where  the  chief  of  a  staff 
corps  or  other  officer,  in  whose  bureau  the  evidence  sought  is  matter 
of  record,  or  who  is  personally  acquainted  with  the  facts  desired  to 
be  proved,  can  attend  or  depose  in  his  stead.     R.  35,  505,  July,  1874. 

XCI  B.  The  party  at  whose  instance  a  deposition  has  been  taken, 
should  not  be  permitted  to  introduce  only  such  parts  of  the  deposition 
as  are  favorable  to  him  or  as  he  may  elect  to  use;  he  must  offer  the 
deposition  in  evidence  as  a  whole  or  not  offer  it  at  all.  B.  36,  236, 
Feb.,  1875. 

XCI  C.  If  the  party  at  whose  instance  a  deposition  has  been  taken 
decides  not  to  put  it  in,  it  may  be  read  in  evidence  by  the  other  party. 
One  party  can  not  withhold  a  deposition  (duly  taken  and  admissible 
under  this  article)  without  the  consent  of  the  other.  B.  37.,  9,  Feb., 
1875. 

XCI  D.  When  it  is  necessary  to  take  a  deposition  in  a  foreign 
country,  the  papers  should  be  forwarded  to  The  Adjutant  General  for 
submission  to  the  Department  of  State,  with  a  request  that  a  proper 
official  of  the  diplomatic  or  consular  service  be  designated  to  cause 
the  deposition  to  be  taken  at  the  residence  of  the  deponent  or  at  the 
nearest  point  to  such  residence  as  is  convenient  for  the  purpose.  B. 
42,  114,  Jan.,  1879;  C,  13046,  Nov.  24,  1903,  July  6,  1906,  Sept.  14, 
1906,  Nov.  18,  1911;  17953,  May  5,  1905;  21294,  Jan.  3,  1907; 
22294,  June  3,  1909. 

XCI  E.  Held  that  under  the  ninety-first  article  of  war  a  court  may 
not  decide  that  a  legal  and  material  deposition  shall  not  be  taken.  ^ 
P.  48,  59,  June,  1891;  C.  6739,  July,  1899;  18566,  Avr.  27,  1906; 
26990,  July  28, 1910. 

XCI  F.  A  deposition,  introduced  by  either  party,  which  is  not  ''duly 
authenticated,''  should  not  be  admitted  in  evidence  by  the  court, 
although  the  other  party  may  not  object.  P.  34,  75,  July,  1889.  A 
deposition  held  irregular  and  inadmissible  where  it  failed  to  show 
that  the  officer  by  whom  it  was  taken  was  authorized  to  take  it,  or 
that  he  was  qualified  to  administer  the  oath  to  the  witness.  P.  I4, 
285,  Jan.,  1887;  34,  75,  July,  1889;  57,  61,  Dec,  1892;  C.  11942, 
Jan.  21,  1902;  12021,  Feb.  1,  1902;  12035,  Feb.  6,  1902;  12036,  Feb. 
7,  1902;  18566,  Apr.  27,  1906. 

XCI  G.  A  court-martial  has  no  power  to  qualify  or  authorize  a  com- 
manding officer,  or  any  other  officer  or  person,  to  take  a  deposition  or 
administer  an  oath.     B.  55,  486,  Mar.,  1888. 

XCI  H.  Article  VI  of  the  amendments  to  the  Constitution  declares 
that  the  accused  shall  be  entitled  *'  to  be  confronted  with  the  witnesses 
against  him."  Held  that  this  appHes  only  to  cases  before  the  United 
States  courts  and  not  to  accused  persons  before  courts-martial,  as 
courts-martial  are  not  a  part  of  the  judiciary  of  the  United  States,  but 
simply   instrumentalities    of   the    executive    power.     Held   further, 

^  It  may  require  oral  testimony  before  the  court. 


ARTICLES  OF  WAR  XCI  I.  165 

therefore,  that  where  the  offense  is  not  capital  a  deposition  may  be 
introduced  before  a  court-martial.  R.  19,  35,  Oct.,  1865;  3S,  I4I, 
July,  1S76;  52,  I48,  Mar.,  1887;  55,  486,  Mar.  1888;  P.  U,  351, 
Dec,  1890;  52,  204,  Feb.,  1892;  55,  493,  Oct.,  1892;  C 13883,  Dec.  29, 
1902;  17212,  Feb.  24,  1905;  23941,  Mar.  1,  1909. 

XCI  I.  A  deposition  can  not  be  read  in  evidence  in  a  capital  case, 
that  is,  in  a  case  where  the  offense  may  be  punished  capitally.  R.  3, 
485,  Apr.  7, 1854;  9,  646,  Sept.  27, 1864;  ^^,  6.  June  11, 1871}  42, 177, 
361,  Feb.  28  and  July  18,  1879;  C.  5202,  Oct.  24,  1898;  5240,  Nov.  1, 
1898;  5702,  Oct.  24,  1898;  5708,  Jan.  24,  1899. 

XCI  K.  The  deposition  of  a  witness  who  resides  in  a  State,  etc., 
uithin  wliich  the  court  is  held,  is  not  admissible  except  by  consent  of 
the  parties.^  R.  42,  361,  July  18,  1879;  C.  1829,  Nov.  8,^1895;  5202, 
Nov.  9,  1906;  20772,  June  I4,  1907;  23481,  June  24,  1908. 

XCIII  A  1.  It  is  in  general  good  ground  for  a  reasonable  contin- 
uance, that  the  accused  needs  time  to  procure  the  assistance  of  coun- 
sel,2  if  it  is  made  to  appear  that  such  counsel  can  probably  be  obtained 
within  the  time  asked,  and  that  the  accused  is  not  chargeable  with 
remissness  in  not  having  already  provided  liimself  with  counsel. 
R.  13,  400,  Feb.,  1865. 

XCIII  A  2.  That  the  charges  and  specifications  upon  which  an 
accused  is  arraigned  differ  in  a  material  particular  from  those  con- 
tained in  the  copy  served  upon  him  before  arraignment,  may  well 
constitute  a  sufficient  ground  for  granting  him  additional  time  for  the 
preparation  of  his  defense.     R.  24,  514,  May,  1867. 

XCVI  A.  A  sentence  of  death  imposed  by  a  court  martial,  upon  a 
con\dction  of  several  distinct  offenses,  will  be  authorized  and  legal  if 
any  one  of  such  offenses  is  made  capitally  punishable  by  the  Articles 
of  "War,  although  the  other  offenses  may  not  be  so  punishable.  R.  3, 
253, 276  and  48O,  July  and  Aug. ,  1863. 

XCVI  B.  A  court  martial,  in  imposing  a  death  sentence,  should 
not  designate  a  time  or  place  for  its  execution,  such  a  designation  not 
being  within  its  province  but  pertaining  to  that  of  the  reviewing 
authority.  If  it  does  so  designate,  this  part  of  the  sentence  may  be 
disregarded,  and  a  different  time  or  place  fixed  by  the  commanding 
general.^     R.  3,  650,  Sept.,  1863.     5,  22,  Sept.,  1863. 

XCVII  A.  This  article,  by  necessary  implication,  prohibits  the 
imposition  of  confinement  in  a  penitentiary  as  a  punishment  for 
offenses  of  a  purely  or  exclusively  military  character — such  as  deser- 
tion for  example.*     R.  5,  500,  Dec,  1863;^,  538,  Apr.,  1864;  ^^,  4^^, 

^  See  G.  C.  M.  0. 102,  Dept.  of  the  East,  1871;  do.  1,  Division  of  South,  1875. 

2G.  CM.  0.25,  War  Dept.,  1875. 

2  It  was  held  by  the  Supreme  Court  in  Coleman  v.  Tennessee  (7  Otto,  509,  519,  520), 
that  a  soldier  who  had  been  convicted  of  murder  and  sentenced  to  death  by  a  general 
court  martial  in  May,  1865,  but  the  execution  of  whose  sentence  had  been  meanwhile 
deferred,  by  reason  of  his  escape  and  the  pendency  of  civil  proceedings  in  his  case, 
might  at  the  date  of  the  ruling  (October  term,  1878)  "be  delivered  up  to  the  military 
authorities  of  the  United  States,  to  be  dealt  with  as  required  by  law." 

More  recently  (May  ,1879, 16  Op.,  349),  it  has  been  held  in  this  case  by  the  Attorney 
General  that  the  death  sentence  might  legally  be  executed  notwithstanding  the  fact 
that  the  soldier  had  meanwhile  been  discharged  from  the  service;  such  discharge,  while 
formally  separating  the  party  from  the  Army,  being  viewed  as  not  affecting  his  legal 
status  as  a  military  convict.  But,  in  view  of  all  the  circumstances  of  the  case,  it  was 
recommended  that  the  sentence  be  commuted  to  imprisonment  for  life  or  a  term  of 
years. 

*  See  G.  0.  4,  War  Dept.,  1867;  also  the  action  taken  in  cases  in  the  following  Gen- 
eral Orders:  G.  O.  21  Dept.  of  the  Platte,  1866;  do.  21,  id.,  1871;  do.  44,  Eighth  Army 
Corps,  1862;  G.  C.  M.  O.  34,  35,  43,  46,  72,  73,  Dept.  of  the  Missouri,  1870. 


166  AETICLES  OF   WAR  XCVII  B. 

Apr.,  1867;  28,  126,  Sept.,  1868;  29,  260,  Sept.,  1869;  31,  296,  Apr., 
1871;  32,  255,  Jan.,  1872;  33, 175,  July,  1872;  C.  1U95,  Apr.  17, 1903; 
11^.621^,  May  7,  1903;  15623,  Bee.  12,  1903;  16023,  Apr.,  1904;  ^^4^4, 
Feh.  3,  1905;  17200,  May  10,  1905;  25481,  Sept.  1,  1909. 

Or  for  lifting  up  a  weapon  against  the  commanding  officer  and  dis- 
charging it  at  Mm  with  intent  to  kill,  in  violation  of  the  twenty-first 
article  of  war.  P.  25,  I4I,  September,  1889;  64,  385,  April,  I894. 
Or  for  joining  in  a  mutiny  in  violation  of  the  twenty-second  article 
of  war.     P.  26,  284,  Septemher  1888. 

XCVII  B.  An  offense  duly  charged  as  ''Conduct  to  the  prejudice 
of  good  order  and  military  discipline,"  or  as  a  violation  of  the  sixtieth 
article  of  war,  wliich,  however,  is  in  fact  a  larceny,^  embezzlement, 
violent  crime,  or  other  offense  made  punishable  with  penitentiary 
confinement  by  the  law  of  the  State,  etc.,  may  legally  be  visited  with 
this  punishment.  R.  9,  281,  Jan.,  1864;  P-  28,  302,  Nov.,  1888; 
C.  14624y  Apr,  22,  1903. 

XCVII  C.  The  term  ''penitentiary,"  as  employed  in  this  article, 
has  reference  to  civil  prisons  only — as  the  penitentiary  of  the  United 
States  or  District  of  Columbia  at  Washington,  the  public  prisons  or 

Eenitentiaries  of  the  different  States,  and  the  penitentiaries  "erected 
y  the  United  States"  (see  sec.  1892,  R.  S.)  in  most  of  the  Territories.^ 
The  term  State  or  State's  prison  in  a  sentence  is  equivalent  to  peni- 
tentiary.   R.  9,  70,  May,  I864. 

XCVII  D.  A  court-martial,  in  imposing  by  its  sentence  the  pun- 
ishment of  confinement  in  a  penitentiary,  is  not  required  to  follow 
the  statute  of  the  United  States  or  of  the  State,  etc.,  as  to  the  terTn  of 
the  confinement.  It  may  adjudge,  at  its  discretion,  except  as  pro- 
vided in  the  fifty-eighth  article  of  war,  a  less  or  a  greater  term  than 
that  affixed  by  such  statute  to  the  particular  offense.  At  the  same 
time  the  court  will  often  do  well  to  consult  the  statute,  as  indicating 
a  reasonable  measure  of  punishment  for  the  offense.  R.  28,  247, 
Nov.,  1868;  P.  26,  497,  Sept.,  1888;  31,  117,  Mar.,  1889. 

XCVII  E.  Wliere  a  soldier  is  convicted  of  manslaughter  in  vio- 
lation of  the  sixty-second  article  of  war,  and  shooting  his  superior 
officer  in  violation  of  the  twenty-first  article  of  war,  and  sentenced  to 
imprisonment  for  life,  held  that  as  the  maximum  sentence  for  man- 
slaughter in  the  State  where  the  offense  was  committed  is  imprison- 
ment in  the  penitentiary  for  eight  years,  the  life  imprisonment  must 
be  regarded  as  having  been  imposed  under  the  twenty-first  article 
of  war,  which  defines  a  strictly  military  offense,  so  that  under  the 
ninety-seventh  article  of  war  the  United  States  military  prison,  and 
not  the  United  States  Penitentiary,  must  be  designated  as  the  place 
of  confinement.     C.  25576,  Sept.  16,  1909. 

C  A.  The  terms  "cowardice^'  and  ^ 'fraud,"  employed  in  this  article, 
may  be  considered  as  referring  mainly  to  the  offenses  made  punish- 
able by  articles  42  and  60.  With  these,  however,  may  be  regarded  as 
included  all  offenses  in  which  fraud  or  cowardice  is  necessarily 
involved,  though  the  same  be  not  expressed  in  terms  in  the  charge  or 
specification.     R.  11,  671,  Apr.,  1865. 

^  In  a  case  of  larceny,  the  court  should  inform  itself  as  to  whether  the  value  of  the 
property  stolen  be  not  too  small  to  permit  of  penitentiary  confinement  for  the  offense 
under  the  local  law.  See  G.  O.  44,  Eighth  Army  Corps,  1862;  G.  C.  M.  O.  63,  Dept. 
of  the  Platte,  1872. 

2  See  pars.  940  and  941,  A.  R.  (981  and  982,  1910). 


AilTICLES   OF   WAR   C   B.  167 

C  B.  The  publication  throughout  the  United  States,  in  the  Associ- 
ated Press  dispatches,  of  the  ' '  crime,  punishment,  name,  and  place  of 
abode"  of  the  accused,  held  to  be  a  sufficient  compliance  with  the 
requirements  of  the  one  hundredth  article  of  war.  C.  10831,  Aug. 
3,  1901. 

CII  A.  The  Constitution  (Art.  V  of  the  amendments)  declares  that 
*'no  person  shall  be  subjected,  for  the  same  offence,  to  be  twice  put  in 
jeopardy  of  life  or  limb."  The  United  States  courts,  in  treating  the 
term  "put  in  jeopardy"  as  meaning  practically  tried,  hold  that  the 
*' jeopardy"  indicated  *'can  be  interpreted  to  mean  nothing  short  of 
the  acQuittal  or  conviction  of  the  prisoner  and  the  judgment  of  the 
court  tnereon."*  So,  held  that  the  term  ''tried,"  employed  in  this 
article,  meant  duly  'prosecuted,  before  a  court-martial,  to  a  jinal  con- 
viction or  acquittal;  and,  therefore,  that  an  ofhcer  or  soldier,  after 
having  been  duly  convicted  or  acquitted  by  such  a  court,  could  not 
be  subjected  to  a  second  military  trial  for  the  same  offense,  except  by 
and  upon  his  own  waiver  and  consent.  That  the  accused  may  waive 
objection  to  a  second  trial  was  held  by  Attorney  General  Wirt  in 
1818,2  and  has  since  been  regarded  as  settled  law.  R.  6,  172,  Oct., 
1863;  6  and  8,  62  and  37,  Mar.,  1864;  O.  6766,  Jan.,  1899;  6664, 
July  24,  1899;  24518,  Mar.  26,  1909. 

CII  A  1.  Where  the  accused  has  been  once  duly  convicted  or 
acquitted,  he  has  been  ''tried"  in  the  sense  of  the  article,  and  can  not 
be  tried  again,  against  his  will,  though  no  action  whatever  be  taken 
upon  the  proceedings  by  the  reviewing  authority  {It.  31,  300,  Apr., 
1871);  or,  though  th  proceedings,  findings  (and  sentence,  if  any)  be 
whoUy  disapproved  by  him.^  R.  9,  611,  Sept,  1864;  ^7,  348,  Nov., 
1868,  and  606,  Apr.,  1869;  38,  38,  Apr.,  1876;  P.  60,  177,  June,  1893; 
C.  16814,  Apr.  29,  1907.  It  is  immaterial  whether  the  former  con- 
viction or  acquittal  was  approved  or  disapproved.  P.  36,  269,  Nov., 
1889. 

CII  B.  Held  that  there  was  no  "second"  trial,  in  the  sense  of  the 
article,  in  the  following  cases,  viz:  Where  the  party,  after  being 
arraigned  or  tried  before  a  court  which  was  illegally  constituted  or 
composed,  or  was  without  jurisdiction,  was  again  brought  to  trial 
before  a  competent  tribunal.  R.  9,  261,  June,  1864;  18,  214,  Sept., 
1865;  28,  68,  Aug.,  1868;  C.  1645,  Sept.,  1896;  4036,  Apr.,  1898; 
16710,  Aug.  9, 1904.  Where  the  accused,  having  been  arraigned  upon 
and  having  pleaded  to  certain  charges,  was  rearraigned  upon  a  new  set 
of  charges  substituted  for  the  others  which  were  withdrawn.  R.  19, 
212,  Oct.,  1865.  Wliere  one  of  several  distinct  charges  upon  which 
the  accused  had  been  arraigned  was  withdrawn  pending  the  trial,  and 
the  accused,  after  a  trial  and  finding  by  the  court  upon  the  other 
charges,  was  brought  to  trial  anew  upon  the  charge  thus  withdrawn. 
R.  5,  213,  Oct.,  1863.  Where,  after  proceedings  commenced,  but  dis- 
continued without  a  finding,  the  accused  was  brought  to  trial  anew 
upon  the  same  charge.  R.  6,  192,  Oct.,  1863.  Where,  after  having 
been  acquitted  or  convicted  upon  a  certain  charge  which  did  not  in 

1  United  States  v.  Haskell,  4  Wash.  C.  C,  402,  409.  And  see  United  States  v.  Shoe- 
maker, 2  McLean,  114;  United  States  v.  Gilbert,  2  Sumner,  19;  United  States  v.  Perez, 
9  Wheaton,  579;  1  Op.  Atty.  Gen.,  294. 

n  Op.  Atty.  Gen.,  233.    And  see  also  6  id.,  200,  205. 

3 Compare  Macomb,  sec.  159;  O'Brien,  277;  Rules  for  Bombay  Army,  45;  McNaugh- 
ion,  io.1,  ioo. 


168  ARTICLES  OF   WAR  CII  C. 

fact  state  the  real  offense  committed,  the  accused  was  brought  to  trial 
for  the  same  act,  but  upon  a  charge  setting  forth  the  true  offense. 
R.  25,  675,  June,  1868;  27,  604,  ^pr.,  1869.  Where  the  accused  was 
brought  to  trial  after  having  had  his  case  fully  investigated  by  a  dif- 
ferent court,  which,  however,  failed  to  agree  in  a  finding  and  was  con- 
sequently dissolved.^  R.  25,  73,  Sept.,  1867.  Where  the  court  was 
not  sworn.  C.  9472,  Dec.  24,  1900.  Where  the  first  court  was  dis- 
solved because  reduced  below  five  members  by  the  casualties  of  the 
service  pending  the  trial.  R.  6,  62,  Mar.,  1864-  Where,  for  any 
cause,  without  fault  of  the  prosecution,  there  was  a  ''mistrial,"  or 
the  trial  first  entered  upon  was  terminated,  or  the  court  dissolved,  at 
any  stage  of  the  proceedings  before  a  final  acquittal  or  conviction. 
R.  5,  192,  Oct.,  1863;  P.  32,  29,  Apr.,  1889;  14761,  June  5,  1903; 
16710,  Aug.  25,  1904;  17773,  Apr.  3,  1905. 

CII  C.  It  is  no  objection  to  the  assuming  by  a  court-martial  of 
jurisdiction  of  a  military  offense  committed  by  an  officer  or  soldier, 
that  he  may  be  amenable  to  trial,  or  may  actually  have  been  tried 
and  convicted,  by  a  criminal  court  of  the  State,  etc.,  for  a  criminal 
offense  involved  in  his  act.  Thus,  a  soldier  may  be  tried  for  a  viola- 
tion of  article  21,  in  striking  or  doing  other  violence  to  a  superior 
officer,  after  having  been  convicted  by  a  State  court  for  the  criminal 
assault  and  battery.  So,  an  officer  or  soldier  may  be  brought  to  trial 
under  a  charge  of  ''Conduct  to  the  prejudice  of  good  order  and  mili- 
tary discipline"  for  the  military  offense  (if  any)  involved  (see  sixty- 
second  article)  in  a  homicide  or  a  larceny  of  which,  as  a  civil  offense, 
he  has  been  acquitted  or  convicted  by  a  State  court.^  And  the 
reverse  is  also  law,  viz,  that  the  State  court  may  legally  take  cog- 
nizance of  the  criminal  offense  involved,  without  regard  to  the  fact 
that  the  party  has  been  subjected  to  a  trial  and  conviction  by  court- 
martial  for  his  breach  of  military  law  or  discipline.  In  such  instances 
the  act  committed  is  an  offense  against  the  two  jurisdictions  and  may 
legally  subject  the  offender  to  be  tried  and  punished  under  botli.^ 

1  See  United  States  v.  Perez,  9  Wheat.,  579. 

2  Grafton  v.  U.  S.  Although  the  same  act  when  committed  in  a  State  mi^ht  con- 
stitute two  distinct  offenses,  one  against  the  United  States  and  the  other  against  the 
State,  for  both  of  which  the  accused  might  be  tried,  that  rule  does  not  apply  to  acts 
committed  in  the  Philippine  Islands.  The  government  of  a  State  does  not  derive 
its  powers  from  the  United  States,  while  that  of  the  Philippine  Islands  does  owe  its 
existence  wholly  to  the  United  States.     (206  U.  S.,  334.) 

^  That  an  officer  may  be  amenable  to  the  civil  and  the  military  jurisdiction  at  the 
same  time  for  the  same  act,  see  cases  of  Asst.  Surg.  Steiner  and  Capt.  Howe,  6  Op. 
Atty.  Gen.,  413,  506.  In  the  former  case  it  is  held  that  the  "conviction  or  acquittal 
of  an  officer  by  the  civil  authorities  of  the  offense  against  the  general  law  does  not 
discharge  him  from  responsibility  for  the  military  offense  involved  in  the  same  facts." 
In  the  latter  case  it  is  observed:  "An  officer  may  be  tried  by  court-martial  for  the 
military  relation  of  an  act  after  having  been  tried  by  the  civil  authorities  for  the 
civil  relations  of  the  same  act."  And  see  3  Op.  Atty.  Gen.,  749,  and  6  Op.  Atty.  Gen., 
413,  506.  In  a  case  published  in  G.  C.  M.  O.  20,  Hdqrs.  of  Army,  1869,  an  officer  was 
charged  with  and  convicted  of  "Conduct  to  the  prejudice  of  good  order  and  military 
discipline,"  for  the  killing  of  a  soldier,  for  which,  as  "manslaughter,"  he  had  previ- 
ously been  acquitted  by  a  civil  court.  And  see  cases  in  G.  O.  78,  Dept.  of  the  East, 
1869;  G.  C.  M.  O.  50,  Dept.  of  the  Missouri,  1871.  See  Grafton  v.  U.  S.  (206  U.  S., 
333). 

In  cases  of  double  amenability,  while — ^in  view  of  the  subordination  of  the  military 
to  the  civil  power — the  civil  jurisdiction  is  entitled  to  the  preference,  yet,  in  general, 
that  jurisdiction  which  is  first  fully  attached  is  ordinarily  properly  allowed  to  have  the 
precedence  in  its  exercise  over  the  other.  (See  Ex  parte  McRoberts,  16  Iowa,  606; 
6  Op.  Atty.  Gen.,  423;  G.  O.  25,  Hdqrs.  of  Army,  1840.) 


ARTICLES  OF  WAR  CII  C  1  a.  169 

B.  5,  140,  Oct,  14,  1863;  4I,  187,  Apr.  5,  1878;  43,  210,  Feb.  17, 
1880;  49,  657,  Jan.  18,  1886;  P.  65,  268  and  269,  June  30,  1894;  G. 
6862,  Aug.  7,  1899;  14851,  July  19,  1903;  17017,  Oct.  17,  1904,^ 

CII  C  1  a.  Wliere  an  ofiicer  who  had  killed  a  superior  officer  in  an 
altercation  at  a  military  post  was  brought  to  trial  before  a  civil  court 
on  a  charge  of  murder  and  acquitted,  and  was  subsequently  arraigned 
before  a  court-martial  for  an  offense  a^jainst  military  discipline  in- 
volved in  his  criminal  act,  Tield  that  a  plea  of  former  trial  interposed 
by  him  was  properly  overruled  by  the  court.  P.  65,  268,  and  269, 
June,  1894;  C.  14851,  July  13,  1903;  17017,  Oct.  17, 1904. 

CII  0  1  b.  Held  that  the  trial  and  acquittal  of  a  soldier  for  murder 
by  the  civil  authorities  was  not  a  bar  to  his  subseq^uent  trial  and  con- 
viction by  a  general  court-martial  for  assault  with  a  rifle  and  the 
infliction  of  a  mortal  wound  on  a  fellow  soldier.*  0.  17402,  May  I4, 
1906. 

CII  C  2.  A  soldier  was  convicted  of  "manslaughter,"  but  the  find- 
ings and  sentence  were  disapproved.  He  was  then  brought  to  trial 
on  a  charge  of  mutiny,  as  committed  on  the  occasion  of  the  homicide, 
the  latter  being  alluded  to  in  the  specification  as  an  incidental  cir- 
cumstance of  aggravation,  and  was  found  guilty  and  sentenced.  Held 
that  the  accused  was  not,  in  the  sense  of  this  article,  "  tried  a  second 
time  for  the  same  offense,"  the  mutiny  not  consisting  in  the  act  of 
homicide  but  constituting  a  distinct  oflfense.     P.  26,  284,  Sept.,  1888. 

CII  D.  There  can  not,  in  view  of  this  article,  be  a  second  trial 
where  the  offense  is  really  the  same  though  it  may  be  charged  under 
a  different  description  and  under  a  different  article  of  war.  Thus, 
where  the  Government  elects  to  try  a  soldier  under  the  thirty-second 
article  for  "absence  without  leave,"  or  under  the  forty-second  for 
"lying  out  of  quarters,"  and  the  testimony  introduced  develops  the 
fact  that  the  onense  was  desertion,  the  accused,  after  an  acquittal  or 
conviction,  can  not  legally  be  brought  a  second  time  to  trial  for  the 
same  absence  charged  as  a  desertion.  P.  34, 4^1 ,  Aug.,  1889;  C.  11025, 
Sept.  4,  1901;  19740,  Mar.  6,  1907. 

CII  E  1.  It  is  not  misrepresentation  or  concealment  by  an  appli- 
cant for  enlistment,  but  the  procuring  of  his  enlistment  by  means  of 
misrepresentation  or  concealment,  together  with  the  receipt  of  pay 
or  allowance,  which  constitutes  the  military  offense  of  fraudulent 
enlistment  under  the  act  of  Congress  approved  Jul}^  27,  1892.  (27 
Stat.,  278).  Held,  therefore,  where  a  soldier  was  tried  for  and  con- 
victed of  fraudulent  enlistment  in  procuring  his  enlistment  by  means 
of  a  misrepresentation  or  concealment,  that  to  again  try  him  for  the 

^  In  re  Stiibbs,  133  Fed.  Rep.,  1012,  in  which  the  court  said,  quoting  from  the 
syllabi:  "Where  a  United  States  soldier  killed  a  fellow  soldier  during-  a  military 
encampment,  and  on  being  surrendered  to  the  civil  authorities  of  the  State  was  prose- 
cuted for  murder  and  acquitted,  such  acquittal,  though  a  final  determination  of  his 
innocence  of  murder  and  of  each  lesser  offense  necessarily  included  therein,  was  no 
bar  to  his  subsequent  military  arrest  and  trial  by  a  general  court-martial  for  '  conduct 
to  the  prejudice  of  good  order  and  military  discipline,'  in  violation  of  the  sixty- 
second  article  of  war  (U.  S.  Comp.  St.  1901,  p.  957),  though  based  on  the  same  act. 

"A  charge  of  assault  with  a  rifle  and  the  infliction  of  a  mortal  wound  by  accused  upon 
a  fellow  soldier,  with  particulars  of  the  time  and  place  clearly  stated,  sufficiently 
alleged  an  offense  within  the  sixty-second  article  of  war  (U.  S.  Comp.  St.  1901,  p. 
957),  providing  for  trial  and  punishment  of  all  crimes  not  capital,  and  all  disorders 
and  neglects  which  officers  and  soldiers  may  be  guilty  of  to  the  prejudice  of  good  order 
and  military  discipline.'? 


170  ARTICLES  OF  WAR  CII  F. 

same  enlistment  on  account  of  another  misrepresentation  or  conceal- 
ment subsequently  discovered  would  be  a  second  trial  for  the  same 
offense  within  the  meaning  of  this  article.  G.  2768,  Nov.,  1896  and 
Jan.,  1897;  7668,  Feb.  9,  1900;  11988,  Feb.  6,  1902;  25703,  Oct.  25, 
1909;  236U,  July  8,1910. 

CII  F.  The  reconsideration  by  a  court-martial  of  a  finding,  whether 
of  guilty  or  not  guilty,  when  duly  reconvened  for  that  purpose,  is  not 
a  second  trial  within  the  meaning  of  this  article.  The  original  and 
revised  proceedings  are  merely  parts  of  one  and  the  same  trial. ^  C. 
5654,  July,  1899;  12177,  Mar.  11,  1902.^ 

CII  G.  An  opinion  ^iven  by  a  court  of  inquiry  is  not  in  the  nature 
of  a  sentence  or  adjudication  pronounced  upon  a  trial.  The  accused, 
upon  a  subsequent  trial,  by  court-martial,  of  charges  investigated  by 
a  court  of  inquiry,  can  not  plead  the  proceedings  or  opinion  of  the 
latter  as  a  former  trial,  acquittal,  or  conviction.  R.  16,  389,  July, 
1865;  29,  98,  July,  1869. 

CII  H  1 .  Where  a  soldier  on  duty  as  sentinel  at  a  military  reserva- 
tion commits  homicide  to  prevent  prisoners  from  escaping  or  in  self- 
defense  in  the  discharge  of  his  duty,  held  that  it  is  to  the  advantage 
of  both  the  military  service  and  the  soldier  that  he  first  be  tried  by  a 
military  court,  to  attain  which  it  is  necessary  that  a  military  juris- 
diction vest  before  the  civil  courts  have  assumed  jurisdiction,^  and 
that  whenever  a  soldier  commits  an  offense  which  is  liable  to  cause  a 
civil  court  to  take  action  and  the  offense  is  one  which  may  be  excused 
as  one  involved  in  the  performance  of  a  military  duty,  charges  be 
immediately  formulated  and  lodged  with  the  proper  authority  with  a 
view  to  vesting  military  jurisdiction,  subject  to  such  later  action 
as  may  be  necessary.^     U.  21694,  June  18, 1907. 

iSee6Op.Atty.Gen.,200,204;  7  id.,  338;  18id.,  113;Swaira  v.  U.  S.,  165U.S.,  553. 

2  Grafton  v.  U.  S.,  206  U.  S.,  333,  in  which  the  court  said,  quoting  from  the  syllabus: 
"The  prohibition  of  double  jeopardy  is  applicable  to  all  criminal  prosecutions  in  the 
Philippine  Islands. 

"A  person  is  not  put  in  second  jeopardy  unless  his  prior  acquittal  or  conviction  was 
by  a  court  having  jurisdiction  to  try  him  for  the  offense  charged. 

"The  judgment  of  a  court-martial  having  jurisdiction  to  try  an  officer  or  soldier  for 
a  crime  is  entitled  to  the  same  finality  and  conclusiveness  as  to  the  issues  involved  as 
the  judgment  of  a  civil  court  in  cases  within  its  jurisdiction  is  entitled  to. 

' '  General  courts-martial  may  take  cognizance,  under  the  sixty-second  article  of  war, 
of  all  crimes,  not  capital,  committed  against  public  law  by  an  officer  or  soldier  of  the 
Army  within  the  limits  of  the  territory  within  which  he  is  serving;  and,  while  this 
jurisdiction  is  not  exclusive,  but  only  concurrent  with  that  of  the  civil  courts,  if  a 
court-martial  first  acquires  jurisdiction  its  judgment  can  not  be  disregarded  by  the 
civil  courts  for  mere  error,  or  for  any  reason  not  affecting  the  jurisdiction  of  the  court 
rendering  it. 

"The  same  acts  constituting  a  crime  against  the  United  States  can  not,  after  the 
acquittal  or  conviction  of  the  accused  in  a  court  of  competent  jurisdiction,  be  made 
the  basis  of  a  second  trial  of  the  accused  for  that  crime  in  the  same  or  in  another  court, 
civil  or  military,  of  the  same  government. 

"Although  the  same  act  when  committed  in  a  state  might  constitute  two  distinct 
offenses,  one  against  the  United  States  and  the  other  against  the  State,  for  both  of 
which  the  accused  might  be  tried,  that  rule  does  not  apply  to  acts  committed  in  the 
Philippine  Islands.  The  government  of  a  State  does  not  derive  its  powers  from  the 
United  States,  while  that  of  the  Philippine  Islands  does  owe  its  existence  wholly  to 
the  United  States. 

"A  soldier  in  the  Army,  having  been  acquitted  of  the  crime  of  homicide,  alleged 
to  have  been  committed  by  him  in  the  Philippine  Islands,  by  a  military  court-martial 
of  competent  jurisdiction  proceeding  under  authority  of  the  United  States,  can  not  be 
subsequently  tried  for  the  same  offense  in  a  civil  court  exercising  authority  in  that 
Territory." 

3  Armv  Regulation  970,  of  1910. 


ARTICLES   OF   WAR  CTI   H   2.  171 

Cn  H  2.  Wliere  a  sentinel  lias  committed  homicide  in  the  execu- 
tion of  his  duty  by  firing  upon  an  escaping  prisoner  and  accidentally 
killing  a  third  person,  for  which  he  was  subsequently  acquitted  by  a 
general  court-martial,  in  which  jurisdiction  had  vested,  lield  that  it  is 
within  the  power  of  the  civil  authorities  of  the  State  to  assume  juris- 
diction, and  surrender  of  custody  should  be  made  on  demand  of  such 
authority,  and  the  right  of  the  State  authorities  to  hold  the  soldier 
should  be  raised  on  writ  of  habeas  corpus  ^  in  a  United  States  court. 
a2194,Aua.U,1907. 

CII  I.  Wnere  a  soldier  of  the  Philippine  Scouts  made  an  assault 
upon  a  Chino,  for  which  he  was  tried,  convicted,  and  punished  by  a 
summary  court,  and  subseauently  a  formal  demand  was  made  upon 
his  conmianding  officer  for  nis  surrender  to  the  civil  authorities,  held 
that  the  fifty-ninth  article  of  war  was  applicable  to  the  case,  and  that 
the  question  as  to  whether  or  not  the  soldier  was  subject  to  the  juris- 
diction of  the  civil  court,  from  which  the  warrant  of  arrest  issued, 
was  a  judicial  one  which  could  not  be  decided  by  the  post  commander, 
and  that  he  should  have  surrendered  the  offender  instead  of  returning 
the  warrant  with  the  information  that  he  had  been  tried  by  a  regu- 
larly constitued  military  tribunal  having  jurisdiction  of  the  offender 
described  in  the  warrant,  leaving  the  question  of  double  jeopardy  to 
be  raised  before  the  proper  civil  tribunal.     C.  21694-,  Aug.  14,  1908. 

cm  A.  The  ''order  for  such  trial,"  within  the  meaning  of  this  arti- 
cle, is  the  reference  of  the  charges  to  the  court  for  trial,  and  not  the 
order  appointing  the  court.     C.  I646,  Aug.,  1895. 

cm  B  1 .  The  mere  fact  that  the  offense  was  concealed  by  the 
accused  and  remained  unknown  to  the  military  authorities  for  more 
than  two  years  constitutes  no  ''impediment"  in  the  sense  of  the 
article.2  R.  21,  635,  Sept.,  1866;  50,  633,  Aug.,  1886;  0.  18605,  Sept. 
22,  1905;  23644,  July  8,  1910. 

cm  B  2.  A  mere  allegation  in  a  specification,  to  the  effect  that  the 
whereabouts  of  the  offender  was  unknown  to  the  military  authorities 

'  See  U,  S.  V.  Lipsett,  ex  parte  Gillette,  156  Fed.  Rep.,  65,  in  which  the  court  said, 
quoting  from  the  syllabi:  "Under  R.  S.  sees.  752,  753,  761  (U.  S.  Comp.  St.  1901,  pp. 
592,  594),  a  court  or  judge  of  the  United  States  has  power  to  issue  a  writ  of  habeas 
corpus  on  petition  of  the  United  States  for  the  purpose  of  an  inquiry  into  the  cause  of 
detention  of  a  prisoner  held  by  a  State  to  answer  to  a  criminal  charge,  where  it  is  alleged 
by  the  petitioner  that  the  act  charged  as  a  crime  was  committed  by  the  prisoner  in  the 
performance  of  his  duty  as  a  soldier  of  the  United  States;  and' it  has  authority  to 
determine  summarily  as  a  fact  whether  or  not  such  allegation  is  true,  and,  if  found  to 
be  true,  to  discharge  the  prisoner  on  the  ground  that  the  State  is  without  jurisdiction 
to  try  him  for  such  act." 

"A  soldier  in  the  service  of  the  United  States  was  placed  on  guard  over  prisoners  and 
furnished  with  a  gun  and  ammunition.  By  the  manual  of  guard  duty,  with  which 
he  was  familiar,  it  was  made  his  duty  if  a  prisoner  attempted  to  escape  to  command 
him  to  halt,  and  if  he  failed  to  do  so,  and  there  was  no  other  possible  means  to  prevent 
his  escape,  to  fire  upon  him.  One  of  the  prisoners  started  to  run  away  down  a  public 
street,  and  the  guard  pursued,  calling  on  him  to  halt,  to  which  no  attention  was  paid. 
The  guard,  being  lame,  was  unable  to  overtake  the  prisoner,  and  after  reaching  a  place 
where  the  street  was  apparently  clear  fired  upon  him,  but  the  bullet  went  over  his 
head  and  struck  and  killed  a  young  woman  who  was  walking  with  others  in  the  street 
upon  higher  ground  and  was  not  seen  by  the  guard.  He  fired  again  at  the  prisoner, 
but  the  latter  escaped  temporarily.  There  was  no  claim  that  the  killing  was  inten- 
tional, or  that  the  guard  acted  maliciously  or  wantonly,  or  otherwise  than  in  good  faith. 
Held,  that  under  such  facts  the  guard  in  shooting  was  acting  in  the  supposed  perform- 
ance of  his  duty  as  a  soldier,  and  was  not  subject  to  arrest  and  trial  for  manslaughter 
by  the  State."  "■ 

2 14  Op.  Atty.  Gen.,  52,  266-268. 


172  AETICLES  OP  WAR  CIII  C. 

during  the  interval  of  more  than  two  years  which  had  elapsed  since 
the  offense  is  not  a  good  averment  of  a  '^ manifest  impediment"  in  the 
sense  of  the  article.^  ^  R.  85,  6JfO,  Oct.,  1874. 

CIII  C.  The  liability  to  trial  after  discharge,  imposed  by  the  last 
clause  of  article  60,  held  subject  to  the  limitation  prescribed  in  article 
103.1  R.  12,  481,  636,  July  and  Aug.,  1865;  15,  133,  Apr.,  1865; 
21,  4,  Nov.,  1865;  26,  670,  July,  1868.  And  so  held  as  to  the  liability 
to  trial  after  the  expiration  of  the  term  of  enlistment,  under  article  48. ^ 
R.  31,  384,  May,  1871.^ 

CIII  D.  The  limitation  is  properly  a  matter  of  defense  to  be  spe- 
cially pleaded  andproved.3  P. 21, 156, Bee, 1887; 40,476,  May, 1908; 
59,  278,  May,  1893;  65, 346,  June,  1894;  C.  17950,  Oct.  22, 1906.  By  a 
plea  of  guilty  the  accused  is  assumed  to  waive  the  right  to  plead  the 
limitation  by  a  special  plea  in  bar.  R.  56,  75,  Apr.,  1888.  But  under 
a  plea  of  not  guilty  the  limitation  may  be  taken  advantage  of  by 
evidence  showing  that  it  has  taken  effect.  P.  21, 156,  supra;  55,  266, 
Sept.,  1892;'  C.  16172,  Apr.  12,  1904;  16122,  Apr.  13,  1904;  16254, 
May  8, 1904;  16859,  Sept.  7,  1904;  17034,  Oct.  21,  1904;  15607,  Nov. 
18,  1905;  17950,  Oct.  22,  1906;  22784,  Sept  13,  1909. 

CIII  E.  By  the  absence  referred  to  in  the  original  article,  in  the 
term — ''unless  by  reason  of  having  absented  himself" — is  intended, 
not  necessarily  an  absence  from  the  United  States,  but  an  absence  by 
reason  of  a  "fleeing  from  justice,"  analogous  to  that  specified  in  sec- 
tion 1045,  K.  S.,  which  has  been  held  to  mean  leaving  one's  home, 
residence  or  known  abode  within  the  district,  or  concealing  one's 
self  therein,  with  intent  to  avoid  detection  or  punishment  for  the 
offense  against  the  United  States.^  Thus  held  that,  in  a  case  other 
than  desertion,  it  was  not  essential  for  the  prosecution  to  be  prepared 
to  prove  that  the  accused  had  been  beyond  the  territorial  jurisdiction 
of  the  United  States  in  order  to  save  the  case  from  the  operation  of 
the  limitation.  P.  58,  268,  Mar.,  1893;  64,  137,  and  151,  Mar., 
1894;  C.  15607,  Dec.  11,  1903;  16064,  Mar.  22,  1904;  16122,  Mar. 
23,  1904;  16172,  Apr.  12,  1904;  16254,  May  3  and  26,  1904;  17034, 
Oct.  21,  1904,  and  May  12,  1905;  18023,  May  19,  1905;  18137,  June 
9,  1905;  18605,  Sept.  22,  1905;  18812,  Nov.  7,  1905;  19374,  May  16, 
1906;  21367,  Apr.  12,  1907;  21760,  July  9,  1907;  21829,  July  22, 
1907;  12563,  Sept.  30, 1907,  and  July  30,  1909;  22874,  Feb.  27,  '1908; 
15257,  Mar.  10,  1908,  and  May  4,  1910;  23034,  Apr.  3,  1908;  22784, 
July  10,  1909;  8287,  Nov.  23,  1909;  20754,  Apr.  29,  1910. 

CIII  F  1 .  Prior  to  the  amendment  of  the  One  hundred  and  third 
article  of  war  by  the  act  of  April  11,  1890  (26  Stat.,  54),  it  was  held 
that  the  statute  of  limitation  began  to  run  in  a  case  of  a  desertion  only 
upon  the  return  of  the  deserter  to  military  control.  It  is  now  held 
that  the  act  of  April  11,  1890,  cited  above,  operates  to  cause  the  statute 
of  limitation  to  begin  to  run  at  the  end  of  the  term  for  which  the  soldier 

1  14  Op.  Atty.  Gen.,  52. 

2  See,  to  a  similar  effect,  13  Op.  Atty.  Gen.,  462;  15  id.,  152;  16  id.,  170;  also.  In  re 
Bird,  2  Sawyer,  33. 

3  In  re  Bogart,  2  Sawyer,  396,  397;  In  re  White,  17  Fed.  Rep.,  723;  In  re  Davison, 
21  Fed.  Rep.,  618;  In  re  Zimmerman,  30  Fed.  Rep.,  176;  G.  O.  22  of  1893.  And  com- 
pare U.  S.  V.  Cooke,  17  Wallace,  168. 

^  See  XII  Comp.  Dec,  276. 

^U.  S.  V.  O'Brien,  3  Dillon,  381;  U.  S.  v.  Wliite,  5  Cranch  C.  C,  38,  73  (Fed. 
Cas.,  16675);  Gould  &  Tucker,  Notes  on  Revised  Statutes,  349. 


ARTICLES   OF   WAR   CIII   F  2.  173 

was  enlisted  or  mustered  into  the  service.  C.  4^30,  May  17,  1898; 
12563,  May  6,  1902  and  Sept.  30,  1907;  28321,  May  8,  191 L 

CIII  F  2.  Ileld  that  tlio  statute  of  limitations  does  not  run  in  the 
case  of  desertion  in  time  of  war.  C.  11850,  Jan.  6,  1902;  13532,  Oct. 
23,  1902;  16064,  Mar.  22,  1904;  16254,  May  3,  1904;  16859,  Sept.  7, 
1904;  17034,  Oct.  21,  1904;  17439,  Jan.  6,  1905;  17609,  Mar.  1,  1905; 
18023,  May  20,  1905;  23070,  Apr.  10,  1908. 

CIII  F  2  a.  xV  soldier  deserted  November  17,  1900,  from  the  Ninth 
United  States  Infantiy,  which  was  then  a  part  of  the  force  with  wliich 
the  United  States  was  making  war  in  Clunese  territory.  The  active 
operations  against  the  enemy  began  June  20,  1900,  when  the  admirals 
of  certain  powei-s  issued  a  proclamation  announcing  that  they  intended 
to  use  force  against  the  Boxers,  and  the  hostile  operations  ended 
May  12,  1901,  when  the  commanding^  general,  Cliina  Relief  Expe- 
dition, issued  an  order  relieving  the  American  forces  from  further 
service  in  China.  Held  that  although  war  was  not  declared  nor  a 
treaty  of  peace  ratified,  nevertheless  a  condition  of  war  existed,  and 
that  as  tliis  soldier  was  a  deserter  in  time  of  war  he  was  not  entitled 
to  the  benefit  of  the  statute  of  limitation  provided  in  the  one  hundred 
and  tliird  article  of  war.     0.  17609,  Mar.  22,  1905. 

CIII  F  3.  A  soldier  deserted,  was  convicted,  and  given  a  sentence 
less  than  dishonorable  discharge.  At  a  date  previous  to  the  expira- 
tion of  his  term  of  eidistment  he  again  deserted.  Held  ih-d^t  the  stat- 
ute of  limitations  began  to  run,  as  to  the  second  desertion,  two  years 
after  the  offense  had  been  committed  plus  the  length  of  time  from  the 
date  of  the  second  desertion  to  the  end  of  his  term  of  enlistment.  G. 
15257,  May  4,  and  Oct.  20,  1910. 

CIII  F  4.  A  soldier  deserted,  was  convicted,  and  given  a  sentence 
less  than  dishonorable  discharge.  After  he  had  been  returned  to 
duty,  and  at  a  date  subsequent  to  the  expiration  of  his  term  of  enlist- 
ment, and  while  making  good  the  time  lost  in  the  first  desertion,  he 
again  deserted.  At  Ms  trial  for  the  second  desertion  it  was  claimed 
that  the  statute  of  limitations  had  run.  Held  that  the  statute  of  limi- 
tations did  not  begin  to  run  as  to  the  second  desertion  until  the  sol- 
dier had  made  good  Under  the  forty-eighth  article  of  war  the  time 
lost  in  desertion.!     C.  15257,  Jan.  28,  1909. 

CIII  F  5.  The  one  hundred  and  third  article  of  war,  which  is  the 
statute  of  limitations,  contains  the  provision  that:  ''No  person  shall 
be  tried  or  punished  by  a  court-martial  for  desertion  in  time  of  peace 
and  not  in  the  face  of  an  enemy. ' '  Held  that  the  words  ''in  time  of 
peace  and  not  in  the  face  of  an  enemy"  refer  to  a  situation  in  which 
the  United  States,  although  not  at  war,  is  confronted  with  warlike 
conditions  and  has  an  enemy,  and  that,  therefore,  the  statute  of  limi- 
tations will  run  at  that  time  in  the  case  of  a  desertion  wliich  was  not 
in  the  presence  of  such  enemy.     C.  17034,  Oct.  20,  1904. 

Similarly  lield  that  that  phrase  applies  to  conditions  which  exist 
when  the  country  at  large  is  at  peace,  but  when  portions  of  its  armed 
forces  are  confronting  strikers,  rioters,  or  are  engaged  in  active  opera- 
tions as  the  result  of  an  Indian  outbreak.     C.  17294,  Dec.  24,  1904. 

CIII  F  6.  A  soldier  deserted  and  was  for  a  considerable  time  there- 
after continuously  employed  on  an  Army  transport.     The  question 

^  *  See  XII  Comp.  Dec.  592,  Apr.  7,  1906.  If  arrested  after  expiration  of  term,  time 
iri  confinement  or  while  serving  sentence  is  not  military  service  and  can  not  be  counted 
to  make  good  time  lost  under  the  forty-eighth  article  of  war. 


174  ARTICLES   OF   WAR   CIII   G. 

was  raised  as  to  whether  or  not  he  had  absented  himself  from  the 
United  States  as  those  words  are  used  in  the  one  hundred  and  third 
article  of  war.  Held  that  absence  from  the  United  States  under  the 
one  hundred  and  third  article  of  war  means  absence  from  the  juris- 
diction of  the  United  States,  and  that  absence  from  the  geographical 
limits  of  the  United  States  on  a  Government  vessel  would  not  be  such 
absence  from  the  United  States  as  is  contemplated  by  the  statute, 
particularly  where  the  deserter  passed  under  the  same  name  as  that 
which  he  bore  when  he  enlisted  and  deserted,  as  in  this  case.  C.  21 760, 
July  9,  1907;  28321,  May  11,  191L 

CIII  G.  Held  that  the  one  hundred  and  third  article  of  war  applies 
to  escape,  as  escape  is  not  a  continuing  offense.  C.  22784,  Mar.  11, 
1908. 

CIII  H.  Held  that  in  cases  of  fraudulent  enlistment,  except  those 
of  enlistment  without  a  discharge  from  a  previous  enlistment,  the 
limitation  provided  in  the  one  hundred  and  third  article  of  war  begins 
to  run  from  the  date  of  receipt  of  last  pay  or  allowances.  C.  13322, 
July  6,  1911. 

CIV  A  1.  The  approval  of  the  sentence  indicated  by  this  article 
should  properly  be  of  Si  formal  character.  An  indorsement,  signed 
by  the  commander,  of  the  single  word  ''approved" — a  form  not 
unfrec[uently  employed  during  the  Civil  War — though,  strictly,  suffi- 
cient m  law  {R.  26,  511,  Apr.,  1868),  is  irregular  and  objectionable. 
So,  lield  that  a  mere  statement,  written  in  or  upon  the  proceedings, 
in  transmitting  them  to  the  President,  that  the  record  was  ''for- 
warded" for  the  action  of  superior  authority,  was  insufficient  as  not 
implying  the  requisite  approval  according  to  the  article.  R.  2,  99, 
Mar.,  1863;  7,  1^76,  Apr.,  1864.  -^^^  similarly  held  of  a  mere  recom- 
mendation that  the  proceedings  be  approved  by  such  authority. 
R.  9,  SO  and  64,  May,  1864;  G.  2844,  Jan.,  1897.  The  article  requires 
the  sentence  to  be  "approved."  Held,  therefore,  where  a  sentence 
had  been  duly  adjudged,  that  a  formal  approval  of  the  "findings" 
only  did  not  meet  the  requirement  of  the  article.     G.  5095,  Oct.,  1898. 

CIV  A  2.  This  article  is  properly  to  be  complied  with  by  an 
approval  of  the  sentence  (where  the  same  is  approved  in  fact)  by  "the 
officer  ordering  the  court,"  etc.,  although — as  in  a  case  of  a  sentence 
of  dismissal  in  time  of  peace — he  may  not  be  empowered  ^7ia%  to 
confirm  and  give  effect  to  the  sentence.  His  approval  is  required  as 
showing  that  he  does  not,  as  he  is  authorized  to  do,  disapprove.  R.  9, 
15,  May,  I864. 

CIV  B.  Where  the  men  who  had  been  tried  by  a  general  court- 
martial  had  passed  with  their  command  from  the  department  in  which 
they  had  been  tried  before  action  had  been  taken  on  their  cases  by 
the  reviewing  authority,  held  that  the  commanding  general  of  the 
department  in  which  tney  had  been  tried  was  the  proper  reviewing 
authority  for  the  cases.     C.  4942,  Sept.  9,  1898;  7166,  Oct.  13,  1899. 

CIV  C  1.  The  "officer  commanding  for  the  time  being,"  indicated  in 
this  article,  is  an  officer  who  has  succeeded  to  the  command  of  the 
officer  who  convened  the  court;  as  where  the  latter  has  been  regu- 
larly relieved  and  another  officer  assigned  to  the  command;  or  where 
the  command  of  the  convening  officer  has  been  discontinued,  and 
merged  in  a  larger  or  other  command,  at  some  time  before  the  pro- 
ceedings of  the  court  are  completed  and  require  to  be  acted  upon.  Thus 
where,  under  these  circumstances,  a  separate  brigade  has  ceased  to 


ARTICLES   OF  WAR  CIV   Ola.  175 

exist  as  a  distinctive  organization  and  been  merged  in  a  division,  or  a 
division  has  been  similarly  merged  in  an  army  or  department,  the  com- 
mander of  the  division  in  the  one  case  and  of  the  army  or  department 
in  the  other,  is  "the  officer  commanding  for  the  time  being,"  in  the 
sense  of  the  article.  R.  8,  633,  July,  1864;  9,  621,  Sept.,  1864;  IS,  298, 
Jan.,  1865;  20, 153  and  194,  Nov.,  1865;  C.  5231,  Oct.,  1898;  5274  and 
5294,  Nov.,  1898;  5471,  Bee,  1898;  10849,  July  17,  1901;  12210,  Mar. 
14,  1902;  16710,  Jan.  20  and  July  29,  1908;  25832,  Mar.  4,  1910. 

CIV  C  1  a.  When  the  officer  who  convened  a  court-martial  and 
referred  a  case  to  trial  before  it  was  succeeded  by  another  officer,  held 
that  the  latter  when  acting  as  reviewing  authority  should  indicate  on 
the  proceedings  that  he  had  succeeded  to  the  command  of  the  officer 
who  convened  the  court.  C.  5078,  Sept.  29,  1898;  5079,  Sept.  29, 
1898;  5080,  Sept.  29,  1898;  10849,  July  16, 1901;  16710,  Aug.  9,  1904. 

CIV  C  1  b.  Ileld  that  it  is  not  necessary  that  the  "officer  command- 
ing for  the  time  being"  should  be  of  the  rank  required  of  a  convening 
officer.  All  that  is  required  in  order  that  he  may  lawfully  act  upon 
a  record  of  trial  is  that  he  succeeds  lawfully  to  the  command.  C. 
10849,  July  16,  1901;  11796,  Dec.  19,  1901;  16710,  Aug.  9,  1904,  ^eb. 
8  and  Mar.  2,  1908. 

CIV  C  2.  A  court  was  convened  by  division  commander,  but  before 
the  reviewing  authority  had  acted  upon  the  sentence  the  division  was 
discontinued  and  the  organizations  cornposing  it  were  distributed 
among  the  divisions  of  another  corps.  Held  that  the  commander  of 
this  other  corps  was  the  officer  "commanding  for  the  time  being," 
and  therefore  the  proper  reviewing  officer.  C.  5231,  Oct.  31,  1898; 
5274,  Nov.  9,  1898;  5294,  Nov.  8,  1898;  5471,  Bee.  7,  1898;  5473, 
Bee.  8,  1898;  16710,  Mar.  20,  1906. 

CIV  C  3.  Wliere  a  separate  brigade  was  merged  in  a  division,  ad- 
vised that  a  court  convened  by  the  commander  of  the  separate  brigade 
need  not  be  dissolved  on  account  of  the  merger,  but  may  legally  try 
all  the  cases  which  have  been  referred  to  it,  the  division  commander 
becoming  the  reviewing  authority.     C.  5151,  Oct.,  1898. 

CIV  C  4.  Where,  before  the  proceedings  of  a  garrison  court  con- 
vened by  a  j)ost  commander  were  completed,  the  post  command  had 
ceased  to  exist  and  the  command  become  distributed  in  the  depart- 
ment, lield  that  the  department  commander,  as  the  legal  successor  of 
the  post  commander,  was  the  proper  authority  to  approve  the  sen- 
tence under  this  article.  R.  42,  48  Nov.,  1878;  C.  16800,  Aug.  25, 
1904. 

CIV  C  5  a.  Held  that  the  illness  of  a  department  commander  is  a 
''disability"  under  which  the  senior  line  omcer  present  and  on  duty 
in  the  department  is  the  ''officer  commanding  for  the  time  being" 
within  the  meaning  of  the  one  hundred  and  fourth  article  of  war.  G. 
10849,  July  16,  1901. 

Cyi  A.  Held  that  a  department  commander  can  confirm  a  sentence 
of  dismissal  of  an  officer  and  order  its  execution  while  a  state  of  war 
continues.!  C.  5860,  Feb.  11,  1899;  6240,  Apr.  12,  1899;  8197,  May 
3, 1900;  10002,  Mar.  18,  1901;  12184,  Mar.  12,  1902;  15754,  Bee.  23, 
1903. 

CVII  A.  Held  that  when  a  division  or  separate  brigade  does  not 
belong  to  a  separate  army  in  the  field,  the  President  of  the  United 

!  As  to  general  officers,  see  article  108. 


176  ARTICLES   OF    WAR   CXI   A. 

States  is  the  proper  confirming  authority  within  the  meaning  of  the 
one  hundred  and  seventh  article  of  war.  C.  ^980,  Sept.,  1898;  10910, 
Aug.  17,1901. 

CXI  A.  Under  this  article  a  reviewing  authority  should  first  for- 
mally approve  the  sentence,  as  forwarding  the  record  for  the  action 
of  the  President  without  such  approval  would  be  incomplete  and 
irregular.  B.  4,  337,  Nov.,  1863;  9,  15,  May,  I864.  Eeld,howeYer, 
that  when  a  record  reached  the  President  without  any  action  of  the 
reviewing  authority  being  recorded  thereon  he  very  properly  regarded 
it  as  having  reached  him  under  the  one  hundred  and  eleventh  article 
of  war.  C.  12251,  Mar.  19,  1902.  Held  tlmt  the  President  may, 
when  a  record  reaches  him  under  the  operation  of  this  article  approve 
or  disapprove  the  sentence  in  whole  or  in  part  and  may  exercise  the 
usual  power  of  remission  or  mitigation,  u.  3,  4^2,  Aug.,  1863;  7, 
594,  Apr.,  I864. 

CXII  A  1.  A  military  commander  vested  with  the  power  of  pardon 
or  mitigation  under  this  article  is  not  authorized  to  delegate  the  same 
to  an  inferior.  Thus  held  that  a  department  commander  could  not 
legally  authorize  a  post  commander  to  remit  in  part,  upon  good 
behavior,  the  punishment  of  a  soldier  under  sentence  at  the  post  of 
the  latter,  who  had  been  convicted  by  a  general  court,  convened,  and 
whose  proceedings  had  been  acted  upon,  by  the  former.  R.  33,  119, 
June,  1872;  G.   11028,  Aug.  16,  1901. 

CXII  Ala.  Held  that  a  reviewing  officer  other  than  the  President 
was  not  empowered  by  this  article  to  commute  a  punishment;  that 
the  ''pardon"  here  specified  was  remission,  which,  unlike  the  pardon- 
ing power  vested  in  the  President,  did  not  include  commutation  or 
conditional  pardon.  So,  held  that  a  reviewing  commander  was  not 
authorized  to  commute  the  punishment  of  dishonorable  discharge, 
and  that,  as  such  punishment  was  not  susceptible  of  mitigation,  it 
could  not  legally  be  reduced  under  this  article.  R.  4^,  666,  Jan., 
1885;  57,  89,  Oct.,  1888;  P.  32,  4OI,  May,  1889;  34,  237,  Aug.,  1889; 
C.  5887,  Feb.,  1899;  21390,  Apr.  16,  1907. 

CXII  A  1  a  (1).  The  power  to  remit  or  commute  sentences  of  death 
(and  dismissal  in  case  of  an  officer)  remains  with  the  President.  A 
military  commander  can  not  exercise  such  power  even  where,  in  time 
of  war,  he  is  authorized  to  approve  and  execute  the  sentence.  Held, 
therefore,  that  the  action  of  a  department  commander  in  directing 
the  commutation  of  a  sentence  of  death  was  a  nullity,  but  that  such 
action  might  be  regarded  as  a  recommendation  to  be  considered  by 
the  President.!     R.  2,  67,  Mar.,  1863;  C.  12213,  Mar.  13,  1902. 

CXII  Alb.  The  order  prescribing  maximum  punishments  was  not 
intended  to  and  does  not  affect  the  established  principle  that  the 
reviewing  authority,  in  the  exercise  of  his  power  of  mitigation,  can  not 
change  the  kind  of  punishment.  The  power  of  substitution  which 
may  be  exercised  by  the  court  under  the  order  has  no  relation  to  the 
power  of  the  reviewing  officer.  Thus  licld  that  the  substitution  by 
the  reviewing  officer  of  confinement  for  forfeiture,  though  the  period 
of  confinement  proposed  were  less  than  the  court  could  have  substi- 
tuted, would  not  be  legal  mitigation.  C.  2381,  June  20,  1896;  2751, 
Nov.  18,  1896;  3487,  Sept.,  1897;  3850,  Feb.  7,  1898;  5887,  Feb.  18, 
1899. 

»See  6  Op.  Atty.  Gen.  123. 


ARTICLES   OF   WAR  CXII  A  1  C.  177 

CXII  A  1  c.  The  pardoning  power  under  the  one  hundred  and 
twelfth  article  of  war  is  not  limited  in  its  exercise  to  the  moment  of 
the  approving  of  the  sentence,  but  may  bo  emi)loyed  as  long  as  there 
remains  any  material  for  its  exercise.^  R.  5,  71,  Sept.  30,  1863;  6,  35, 
Mar.  21,  1864;  S,  682,  June  20,  1864;  21,  49,  Nov.  21,  1865;  26,  463, 
Feb.  20,  1868;  27, 243,  Sept.  21, 1868;  C.  10393,  June  10, 1901;  14678, 
May  18,  1903;  16552,  July  6,  1904;  16710,  July  27,  1908;  18467, 
Aug.  23,  1905;  21705,  Aug.  20,  1907. 

CXII  A  1  c  (1).  A  military  prisoner  sentenced  to  confinement  in  a 
penitentiary  or  in  the  United  States  military  prison  or  any  branch 
thereof  will,  so  far  as  concerns  the  exercise  of  clemesncy,  be  considered 
to  have  passed  beyond  the  jurisdiction  of  a  division  or  department 
commander  from  the  date  of  the  approval  of  his  sentence  without 
regard  to  the  fact  of  his  being  temporarily  retained  within  the  com- 
mand of  such  division  or  department  commander  pending  transfer 
to  penitentiary  or  to  the  United  States  military  prison  or  any  branch 
thereof.  C.  21705,  June  19, 1907;  16710,  July  29, 1908.  All  punish- 
ments of  confinement  in  a  penitentiary,  where  legal,  may,  however, 
at  the  time  of  action  on  the  case  by  the  reviewing  authority,  be  miti- 
gated to  confinement  in  a  military  prison  or  at  a  rmlitary  post.  P.  29, 
209,  Jan.,  1889. 

CXII  B.  The  reviewing  authority,  in  approving  the  punishment 
adjudged  by  the  court  and  ordering  its  enforcement,  is  authorized, 
if  he  deems  it  too  severe,  to  graduate  it  to  the  proper  measure  hy 
reducing  it  in  quantity  or  quality,  without  changing  its  species:  this 
is  mitigation.  R.  37,  22,  June,  1875;  41,  618,  Mar.,  1879.  ^  Impris- 
onment, fine,  forfeiture  of  pay,  and  suspension,  are  punishments 
capable  of  mitigation.  As  an  instance  of  a  mitigation  both  in  quan- 
tity and  quality,  lield  that  a  sentence  of  imprisonment  for  three  years 
in  a  penitentiary  was  mitigable  to  an  imprisonment  for  two  years  in  a 
military  prison.     R.  41,  618,  supra;  C.  21390,  Apr.  16,  1907.^  ^ 

CXII  C.  A  punishment  in  itself  illegal  is  not  capable  of  mitiaation. 
Thus  where  a  sentence  of  imprisonment  in  apenitentiar^r  is  not  legally 
authorized,  it  can  not  be  made  valid  by  mitigating  this  imprisonment 
to  confinement  in  a  military  prison.  In  such  case  the  latter  will  be 
equally  invalid  and  inoperative  with  the  original  punishment.^  P.  29, 
209,  Jan.,  1889;  43,  151,  Oct.,  1890;  63,  181,  Apr.,  1892. 

CXII  D.  Held  that  a  sentence  of  dishonorable  discharge  by  a  court- 
martial  can  not  be  commuted  or  mitigated  to  confinement  or  forfeit- 
ure by  the  reviewing  authority  except  the  President.  C.  2751,  Nov, 
18, 1896;  5887,  Feb.  20, 1899. 

CXII  E.  Where  the  station  of  a  soldier  who  is  undergoing  sentence 
imposed  by  an  inferior  court  is  changed,  lieTd  that  the  power  to  miti- 
gate the  sentence  passes  to  the  new  post  commander.  C.  10393 j 
June  10,  1901. 

'  See  G.  O.  167  A.  G.  O.,  Dec.  31,  1901. 

See  par.  958,  A.  R.,  Ed.  1910,  which  requires  that  an  application  for  clemency  in 
case  of  a  prisoner  sentenced  to  confinement  in  a  penitentiary  or  in  the  United  States 
military  prison  or  any  branch  thereof  will  be  forwarded  to  The  Adjutant  General  of 
the  Army  for  the  action  of  the  Secretary  of  War  and  the  President. 

See  also  19  Op.  Atty.  Gen.,  106,  Feb.  27,  1888. 

^  But  see  A.  R,  981  of  1910,  which  provides  that  when  a  penitentiary  has  been 
erroneously  designated  in  the  sentence  the  reviewing  authority  may  disapprove  that 
portion  of  the  sentence  and  designate  a  proper  place. 

31106°— 12 12 


178  AETICLES   OF   WAE  CXIV  A. 

CXIV  A.  Under  the  one  hundred  and  fourteenth  article  of  war  and 
the  practice  of  the  War  Department,  every  person  tried  by  a  general 
court-martial  or  by  a  military  commission  is  entitled  to  one  copy  of 
the  record  of  proceedings  in  his  case  upon  demand  therefor  made  by 
him  or  by  any  person  in  his  behalf  ((7.  6606,  June  15, 1899)  before  his 
decease.  R.  56,  17,  Mar.,  1888;  P.  25,  188,  June,  1888.  The  appli- 
cation should,  in  the  first  instance,  be  addressed  to  the  Judge  Advocate 
General,  and  if  not  made  by  the  accused  himself,  should  exhibit  satis- 
factory evidence  that  the  applicant  represents  the  accused,  as  a  person 
other  than  the  accused,  applying  on  his  own  account,  is  not  entitled 
to  a  copy.  R.  3,  348  and  409,  Aug.,  1863;  19,  318,  Jan.,  and  459, 
Mar.,  1866;  21,  12  and  583,  Nov.,  1865,  and  Aug.,  1866;  31,  499, 
July,  1871;  37,  106,  Nov.,  1875;  C.  26559,  Apr.  20,1910.  HeU  that 
otherwise  than  as  above  a  copy  of  a  court-martial  record  can  be 
secured  only  by  order  of  the  Secretary  of  War.  R.  19,  635,  May, 
1866;  31,  449,  July,  1871;  37,  106,  Nov.,  1875.  The  report  of  the 
Judge  Advocate  General  will  not  be  furnished  under  the  one  hun- 
dred and  fourteenth  article  of  war.  R.  19,  657,  June,  1866;  32,  54, 
Oct.,  1871. 

CXV  A.  Rdd,  that  neither  the  President  nor  a  commanding  officer 
is  obliged  to  order  a  court  of  inquiry  on  the  application  of  an  officer. 
C.  18772,  Oct.  26,  1905;  23059,  May  12,  1908;  20754,  Mar.  12,  1909; 
27472,  Nov.  9, 1910.  And  in  a  case  where  an  officer  requested  a  court 
of  inquiry,  and  it  was  apparent  that  the  real  purpose  of  the  request 
was  to  secure  an  opinion  by  the  court  of  inquiry  on  a  question  of 
infringement  of  patent,  held  that  it  was  not  a  proper  subject  for  a 
court  of  inquiry.     C.  '25188,  Jan.  20,  1912. 

CXV  B.  The  court  of  inquiry  authorized  by  the  one  hundred  and 
fifteenth  article  of  war  can  examine  into  the  nature  of  transactions  of 
officers  or  enlisted  men  only.^  R.  1,  395,  402,  Nov.,  1862;  19,  71,  Oct, 
1865;  27,  601,  Apr.,  1869;  38,  210,  Aug.,  1876;  39,  619,  Aug.,  1878; 
51,  263,  June,  1878.  The  accused  appears  and  examines  witnesses 
before  such  a  court  as  freely  as  before  a  court-martial.  The  proceed- 
ings of  a  court  of  inquiry  may  be  open  at  the  discretion  of  the  court.^ 
R.  28,  586,  May,  1869. 

GXIX  A.  Where,  as  in  the  majority  of  cases,  the  inquiry  is  instituted 
with  a  view  of  assisting  the  determination  by  the  President,  or  a  mili- 
tary commander,  of  the  question  whether  the  party  should  be  brought 
to  trial,  the  opinion  of  the  court  will  properly  be  as  to  whether  further 
proceedings  before  a  court-martial  are  called  for  in  the  case,  with  the 
reasons  for  the  conclusions  reached,  Wliere  no  such  view  enters  into 
the  inquiry,  but  the  court  is  convened  to  investigate  a  question  of 
military  right,  responsibility,  conduct,  etc.,  the  opmion  will  properly 
confine  itself  to  the  special  question  proposed  and  its  legitimate  mili- 
tary relations.     A  court  of  inquiiy,  composed  as  it  is  of  military  men, 

*  A  court  of  inquiry  is  not  a  court  in  the  legal  sense  of  the  term,  but  rather  a  board. 
It  takes  no  pleadings,  and  its  proceedings  are  not  a  trial  of  the  guilt  or  innocence  of  the 
accused,  nor  does  it  come  to  a  verdict  or  pass  sentence.  (1  Winthrop's  Mil.  Law, 
chap.  24.) 

2  Although  the  challenge  of  members  of  a  court  of  inquiry  is  not  specifically  provided 
for,  yet  in  the  interest  of  justice  it  is  generally  allowed.  (See  Macomb,  sec.  204; 
O'Brien,  292;  1  Hart,  278.)  See  S.  Doc.  no.  701,  61st  Cong.,  3d  sess.,  which  publishes 
the  proceedings  and  conclusions  of  the  Brownsville  Court  of  Inquiry.  That  Court  of 
Inquiry  had  jurisdiction  by  the  act  of  Mar.  3,  1909  (35  Stat.  836),  to  make  eligible  for 
reenlistment  men  who  had  been  discharged  without  honor. 


ARTICLES   OF  WAR   CXIX  B.  179 

will  rarely  find  itself  called  upon  to  express  an  opinion  upon  questions 
of  a  purely  legal  character.*  R,  16,  389,  July,  1865;  G.  28277,  Oct.27, 
1908. 

CXIX  B.  Wliile  it  is  of  course  desirable  that  the  members  of  a  court 
of  inquiry,  directed  to  express  an  opinion,  should  concur  in  their  con- 
clusions, they  are  not  required  to  do  so  bjr  law  or  regulation.^  The 
majority  does  not  govern  the  minority  as  in  the  case  of  a  finding  or 
sentence  by  court-martial.  If  a  member  or  a  minority  of  members 
can  not  conscientiously  and  without  a  weak  yielding  of  independent 
convictions  aOTee  with  the  majority,  it  is  better  that  such  member 
or  members  siiould  formally  disagree  and  present  a  separate  report 
(or  reports)  accordingly.  The  very  disagreement  indeed  of  intelligent 
minds  is  a  material  and  important  fact  in  the  case,  and  one  of  which 
the  reviewing  authority  is  entitled  to  have  the  advantage  in  his  con- 
sideration of  and  action  upon  the  same.     R.  41,  207,  Apr.,  1878. 

CXXI  A.  Wliile  the  proceedings  of  a  court  of  inquiry  can  not  be 
admitted  as  evidence  on  the  merits  upon  a  trial  before  a  court-martial 
of  an  offense  for  which  the  sentence  of  dismissal  will  be  mandatory 
upon  conviction,'  yet  lield  that  upon  the  trial  of  such  offense,  as  upon 
any  other,  such  proceedings,  properly  authenticated,  would  be  admis- 
sible in  evidence  for  the  purpose  of  impeaching  the  statements  of  a 
witness  upon  the  trial  who,  it  was  proposed  to  show,  had  made  quite 
different  statements  upon  the  hearing  before  the  court  of  inquiry.'' 
R.  43,  339,  June,  1880. 

GXXII  A.  Officers  of  the  Marine  Corps  traveling  without  troops 
on  Army  transports  can  not  exercise  command  of  the  troops  on 
board  in  the  operation  of  this  article  or  exercise  command  .m  the 
Army  at  any  time  unless  duly  assigned  thereto  by  the  President.^ 
C.  20461,  Oct.  3,  1906;  22905,  Mar.  17,  1908;  24712,  Apr,  2,  1909; 
25586,  Oct.  9,  1909. 

CXXII  B.  The  command  at  joint  encampments  of  the  Regular 
Army  and  Organized  Militia  remains  with  the  regular  post  commander 

1  In  an  exceptional  case,  that  of  the  special  court  of  inquiry  authorized  by  Congress 
in  the  joint  resolution  of  Feb.  13,  1874,  the  court  was  required  to  express  an  opinion 
not  only  upon  the  "moral,"  but  upon  the  "technical  and  legal  responsibility"  of 
the  officer  for  the  "offenses"  charged.  It  is  not  irregular,  but  authorized,  for  a  court 
of  inquiry,  in  a  proper  case,  to  reflect,  in  connection  with  its  opinion,  upon  any 
improper  language  or  conduct  of  the  accused,  prosecuting  witness,  or  other  person, 
appearing  before  it  during  the  investigation.  Thus,  the  court  of  inquiry  on  the  con- 
duct of  the  Seminole  War,  adverted,  in  its  opinion,  unfavorably  upon  certain  offensive 
and  reprehensible  language  employed  against  each  other  by  the  two  general  officers 
concerned,  the  one  in  his  statement  to  the  court,  and  the  other  in  his  official  commu- 
nications which  were  put  in  evidence.     (See  G.  O.  13,  Hdqrs.  of  Army,  1837.) 

^In  the  case  of  the  court  of  inquiry  (composed  of  seven  general  officers),  on  the 
Cintra  convention,  in  1808,  the  members  who  dissented  from  the  majority  wore 
required  by  the  convening  authority  to  put  on  record  their  opinions,  and  three  dis- 
senting opmions  were  accordingly  given.  A  further  instance,  in  which  two  of  the 
five  members  of  the  court  gave  each  a  separate  dissenting  opinion,  is  cited  by  Hough 
(Precedents),  642.  Mainly  upon  the  authority  of  the  former  case,  both  Hough  (Prece- 
dents), 642,  and  Simmons,  sec.  339,  hold  that  members  nonconcurring  with  the 
rnajority  are  entitled  to  have  their  opinions  reported  in  the  record.  In  the  Browns- 
ville case  see  S.  Doc.  no.  701,  eist  Cong.,  3d  sess.,  the  court  was  unanimous  as  to  some 
of  its  conclusions,  but  as  to  others,  the  record  states  that  certain  members  did  not 
concur. 

3  Compare  G.  O.  33,  Dept.  of  Arizona,  1871. 

*  See  this  ruling  published,  as  adopted  by  the  President,  in  G.  C.  M.  O.  40,  Hdqrs. 
of  Army,  1880.     See  also  G.  C.  M.  O.  88,  Navy  Dept.,  1895. 

*  See  28  Op.  Atty.  Gen.,  15. 


180  AETICLES   OF    WAR — ASSIGNMENT. 

without  regard  to  rank  of  senior  officer  of  the  Organized  Militia.  G, 
141/^8,  May  H,  1910;  25586,^  Feb.  3,  1910. 

CXXVI  A.  Held  that  it  is  within  the  discretion  of  a  company 
commander  under  the  one  hundred  and  twenty-sixth  and  one  hun- 
dred and  twenty-seventh  articles  of  war  to  convert  into  cash  the 
effects  left  by  a  deceased  soldier.  He  is  then  required  to  pay  over 
to  the  personal  representatives  of  the  deceased  the  proceeds  of  the 
sale,  and  if  expense  is  incurred  by  the  sale  it  must  be  defrayed  out 
of  the  sum  realized.  After  such  expense  is  deducted,  the  result  will 
be  the  ''net  proceeds,"  which  is  the  term  referred  to  in  the  Army 
Regulations.     G.  18500,  Sept.  5,  1905, 

CXXVII  A.  This  article,  in  connection  with  the  two  preceding 
articles,  provides  for  the  securing  of  the  effects  of  deceased  officers 
and  soldiers,  making  inventory  of  the  same,  and  accounting  for  them 
to  the  proper  legal  representative,  etc.  These  articles  have  special 
reference  to  cases  of  deaths  of  military  persons  while  in  active  service 
in  the  field  or  at  remote  military  posts,  and  their  provisions  apply 
only  to  such  effects  as  are  left  by  the  deceased  ''in  camp  or  quar- 
ters." An  attempt  by  the  commander,  etc.,  to  secure  effects  left 
elsewhere  would  not  be  within  the  authority  here  given,  and  might 
subject  the  officer  to  the  liability  of  an  administrator;  such  a  pro- 
ceeding would  not  therefore  be  advisable.  Upon  accounting  to  the 
duly  qualified  legal  representative,  as  directed  in  the  article,  the 
responsibility  of  the  officer  is  discharged,  and  it  remains  for  the  rep- 
resentative to  dispose  of  the  property  according  to  the  law  applicable 
to  the  case.     R.  43,  266,  Mar.,  1880. 

CXXVII  B.  Held  that  the  term  "legal  representatives,"  as  em- 
ployed in  the  one  hundred  and  twenty-seventh  article  of  war,  is  to 
De  construed  as  equivalent  to  duly  appointed  legal  personal  repre- 
sentative, i.  e.,  the  duly  appointed  executor  or  administrator  of  the 
estate  of  the  deceased.     G.  29333,  Dec.  27,  1911. 

CROSS   REFERENCE. 

Construction  of  Articles  of  War See  Laws  I  B  7  a. 

ASSAULT  AND  BATTEKY. 

See  Articles  op  War  LXII  D. 

ASSAULT   WITH  INTENT   TO   KILL. 

See  Articles  of  War  LXII  B. 

ASSIGNEE. 

Execution  of  contract  by See  Contracts  I  B  2. 

ASSIGNMENT. 

Bonds See  Bonds  III  C. 

Contracts See  Contracts  XIV  to  XV. 

Franchise See  Navigable  Waters  III  C  to  D. 

Lease See  Public  Property  VII  A  1. 

License See  Public  Property  VIII  A  2  to  3. 

Patentright See  Patent  III;  III  A. 

Pay  account See  Pay  and  Allowances  I  B  -i. 

Secretary  of  War See  Army  I  B  2a  (1). 

To  duty  according  to  brevet  rank See  Rank  IV  B  to  C. 


ASYLUM — BADGES.  181 

ASYLUM. 

Admission  to See  Insanity  I  B  2. 

ATHLETICS. 

Line  of  duty  status See  Gratuity  I  A  5  a. 

See  Claims  VIII. 

ATTORNEY. 

Claim  for  service  as  counsel See  Claims  XII  C. 

Officer  as See  Claims  X. 

ATTORNEY  GENERAL. 

Alloidng  completion  of  work See  Bonds  V  H. 

Requests  on See  Desertion  III  A. 

Discipline  IV  B  4  a 

Army  I  B  5  a  b;  G  3  b  (2)  (a)  [3]  [c] 

Claims  XII  M.  v  ^  v  ;  l  j  l  J 

AUCTIONEER. 

Employment  of See  Public  Property  IX  A  2  c. 

Payment  of See  Articles  op  War  LXII  C  4. 

Soldier  as See  Pay  and  Allowances  I  C  6  b. 

AUTHENTICATION. 

By  President See  Discipline  XIV  H  1  a. 

By  Secretary  of  War  for  President See  Army  IB  1  a  (1);  (2) 

By  reviemng  authority See  Discipline  XIV  E  9  m. 

By  judge  advocate See  Discipline  IV  C  3  b  (1)  to  (4). 

By  indorsement See  Discipline  VII  B  1. 

Of  proceedings See  Discipline  IX  M 

Official  papers See  Discipline  XI  A  17  a  (2)  (a)  [1]  [a]. 

AUTHOR. 

May  copyright  his  work See  Copyright  I. 

AUTHORITY. 

Delegation  of See  Articles  op  War  LXII  A. 

Of  general  court-martial See  Discipline  VII  A  to  F. 

To  discharge  soldier See  Discharge  III  B  1 ;  XX  A  to  F. 

Trial  judge  advocate See  Discipline  IV  B  1  to  5. 

AUTOMOBILES. 

Not  subject  to  State  license  when  in  service 

of  United  States See  Tax  III  M. 

Transportation  by See  Army  I  G  3  b  (2)  (a)  [4]. 

Militia  VI  B  2  f . 

BACHELOR'S   MESS. 

Use  of  liquor  at See  Intoxicants  II  C. 

Mess  bill. See  Army  I  G  3  b  3  (a)  [1]. 

BADGES. 

See  Insignia  of  merit  III. 
Campaign,  issue  to  Militia See  Militia  XIII  B. 


182  BAGGAGE — BLANKET  GUARANTIES.  ^      '^^ 

BAGGAGE. 

Transportation  of  retired  officers' See  Ketirement  I  n  4.   , 

BAIL. 

See  Articles  of  War  LIX  K. 
See  Discipline  I  C. 
0/ enlisted  men See  Command  V  A  2  c. 

BAKERY   SAVINGS. 

See  Government  agencies. 
At  joint  encampment See  Militia  VI  B  2  a. 

BALLOON. 

Finder  of. See  Public  property  I  A  6. 

BANKRUPTCY. 

Of  contractor See  Contracts  X  E;  XX  C  10. 

BARRACKS  AND  QUARTERS. 

See  Appropriations  XXVIII. 

BATTALION   COMMANDER. 

Authority  to  recommend  appointments See  Command  V  C  1  b. 

BATTALION  STAFF  OFFICERS. 

Appointment  of. See  Command  V  C  1  b. 

BEER. 

7s  intoxicating See  Intoxicants  I  a. 

BENEFICIARY. 

Under  Act  of  May  11,  1908  (35  Stat.  108).  .See  Gratuity  I  A;  B  1  to  4. 

BIDS   AND   BIDDERS. 

See  Contracts  VI  to  VII. 

Bondby See  Bonds  III  F. 

Liability  of. See  Contracts  XI  to  XII. 

Nonfatal  defect  in  guaranty See  Bonds  I  C. 

On  Government  contracts See  Contracts  XXIII  E. 

Partnership See  Contracts  XXX. 

Receiver See  Contracts  XXXVII. 

BIGAMY. 

See  Articles  of  War  LXI  B  12;  LXII D. 

"BLANKET"  GUARANTIES. 
Are  legal See  Contracts  XI  E. 


BOABD   OF   OFFICEKS — BONDS:   SYNOPSIS.  183 

BOAKD   OF   OFFICERS. 

See  Discipline  XVIII  A  to  E. 
Character  of  soldier See  Discharge  III  C;  XI  A  2. 

Enlistment  I  D  3  to  4. 
Claim  damaged  property See  Claims  II. 

Militia  VI  C  1  i. 

Evidence  of  record See  Discipline  XI  A  13. 

Fifty-fourth  article  of  war See  Article  of  war  LIV  E. 

Inventor  can  not  serve  on,  tvhich  is  consider-  See  Patent  V. 
ing  his  invention. 

Promotion See  Retirement  I  B  6  to  8. 

Retiring! See  Retirement  I  B  1  to  6. 

Squatters  improvements  by.'. See  Public  property  III  H  2. 

Volunteer  officers,  examination  of See  Discharge  XXI  A. 

Volunteers,  character  of See  Volunteer  Army  IV  H  2. 

Enlistment  I  D  3  d  (4). 

BOARD   OF   REVIEW. 

See  Discharge  XVII  B. 
See  Army  I  G  3  d  (2)  to  (3). 
See  Retirement  I  B  7  a. 

BONDS.i 

I.  BONDS  IN  GENERAL. 

A.  Bond  May  be  Required  in  Absence  op  Statute Page  187 

B.  Guaranty  Should  be  as  Legally  Sufficient  as  a  Bond Page  188 

C.  Nonfatal  Defects  in  Bidders'  Guaranties  Waived Page  189 

D.  Objection  that  Partner  was  Guarantor  for   Copartner  may  be 

Waived. 

E.  Construction  of  Guaranty  Incompletely  Filled  Out. 

F.  The  Seal. 

1.  Effect  of  guaranty  without  seal. 

2.  Bonds  not  under  seal  may  still  be  valid  contract. 

3.  Printed  scroll  or  other  device  valid  substitute  for  adhesive  seal  in  most 

States Page  190 

G.  Bonds  of  Corporations. 

1.  Corporate  name  must  be  exactly  expressed. 

2.  Officer  signing  name  of  corporation  and  attaching  seal  should  have 

proper  authority  to  do  so. 

3.  Practice  where  authority  to  execute  bonds  does  not  clearly  appear  and 

it  is  impracticable  to  have  bonds  reexecuted. 

4.  Corporation  may  use  any  seal  like  an  individual Page  191 

H.  Bonds  of  Organization  that  have  no  Legal  Entity. 

1.  In  practice  bonds  on  behalf  of  such  organizations  are  signed  by  a 

proper  person  as  principal. 

2.  Proper  procedure  where  United  States  Soldiers'  Home  gives  bond. 

3.  Where  individual  conducts  business  under  company  name  papers 

should  be  in  name  of  individual, 

4.  Bond  of  Philippine  Islands  while  being  administered  under  authority 

of  the  President  should  run  in  name  of  United  States Page  192 

^Prepared  by  Maj.  H.  M.  Morrow,  judge  advocate,  assistant  to  Judge  Advocate 


'■  rrep; 
General 


184  BONDS  :  ■  SYNOPSIS. 

I.  BONDS  IN  GENERAL— Continued. 

I.  Contracting  Officer  in  a  Bond  May  be  Designated  by  Title  Alone. 
J.  Validity  of  Bond  Not  Affected  by  Absence  of  Witness  to  Signature 

OP  Principal. 
K.  Date  of  Bond. 

1.  Validity  of  bond  not  affected  by  omission  of  date. 

2.  Where  date  of  bond  differs  from  date  of  resolution  authorizing  its 

execution. 

3.  Where  bond  recites  that  the  principal  had  on  a  subsequent  date  entered 

into  a  contract  for  performance  of  which  bond  was  given. .  Page  193 
L.  Guaranty  Signed  by  Members  of  Bidder's, Family. 
M.  Sureties. 

1.  Bond  should  not  be  accepted  unless  sureties  are  clearly  bound. 

2.  Erasures  and  interlineations  in  bond  without  consent  of  surety. 

3.  Sureties  not  bound  by  supplemental  contract  unless  they  assent. 

4.  Not  bound  by  unauthorized  modifications  of  contract Page  194 

5.  Sureties  not  bound  beyond  period  originally  fixed  by  contract,  unless 

they  assent. 

6.  Where  bond  provides  surety  shall  be  bound  during  period  of  extension 

of  contract,  surety  continues  to  be  bound  though  contract  extended 
more  than  once. 

7.  Double  aspect  of  bond  to  secure  performance  of  contract  and  payment 

of  laborers.     Obligation  not  affected  as  to  labor  and  material- men 
by  modification  without  surety's  consent. 

8.  Validity  of  bond  not  affected  by  omission  of  name  of  surety  from  body 

of  bond. 

9.  Affidavit  of  justification  of  sureties Page  195 

10.  Failure  to  secure  consent  of  one  surety  to  modification  of  contract  re- 

leases all  sureties. 

11.  Where  one  surety  on  joint  and  severel  bond  dies,  new  bond  not  required. 

12.  Where  changes  are  made  in  bond  and  it  is  not  known  whether  they 

were  made  by  consent  of  sureties. 

13.  Stockholders  of  a  corporation  as  sureties  for  the  corporation. 

14.  Married  woman  as  surety Page  196 

N.  Bond  to  United  States  Usually  Considered  as  Made  and  to  be  Per- 
formed at  Washington.  Bond  Connected  with  River  Improve- 
ment is  Possible  Exception. 

O.  Power  of  Treasury  Department  to  Review  or  Exercise  Control 

Over  War  Department  Bonds. 
P.  Contrary  to  Practice  op  War  Department  to  Surrender  Bonds 

After  Performance  or  to  Release  Sureties Page  197 

Q.  In  Absence  of  Law  Requiring  a  Joint  and  Several  Bond,  Such 

Bond  Not  Required. 
R.  Power  of  Partners  to  Execute  Bond  for  Partnership. 
S.  Authority  to  Sign  All  Bonds  Necessary  to  Carry  on  Business  of 

Company  is  Prospective  Only Page  198 

T.  Rule  as  to  Obligation  Where  New  Bond  for  Reduced  Amount  is 

Given  in  Place  of  Old  Bond. 
n.  BONDS  OF  DISBURSING  OFFICERS. 

A.  May  be  Taken  Even  Where  no  Statutory  Authority. 

B.  Cumulative  Bonds Page  199 

C.  Sureties  Should  Justify  in  Double  the  Amount  op  Bond..  Page  200 


BONDS:   SYNOPSIS.  185 

II.  BONDS  OF  DISBURSING  OFFICERS— Continued. 

D.  Where  Each  op  Sureties  on  Joint  and  Several  Bond  is  not  Bound 

FOR  Full  Amount  of  Bond. 

E.  Bond  Inoperative  as  to  Future  Acts  on  Promotion  of  Principal 

to  Higher  Grade,  or  on  His  Ceasing  to  Hold  Office Page  201 

F.  Bond  Once  Given  Continues  in  Force,  Notwithstanding  Officer 

Not  for  the  Moment  Disbursing  Funds. 

G.  "Office"  Means  Office  Named  in  Bond;  Does  Not  Apply  to  Office 

TO  Which  Promoted. 

H.  Bond  Continues  Where  Only  Title  of  Office  Changed Page  202 

I.  Upon  Promotion  to  Higher  Grade  Officer  Not  Required  to  Give 
Bond  Uuntil  He  Enters  on  Performance  op  Duty. 

J.  Where  a  Line  Officer  Appointed  Disbursing  Officer. 

K.  Army  Officer  May  Be  Surety  on  Official  Bond  op  Another  Army 
Officer. 

L.  By  Regulations  in  Aid  op  Section  1191,  R.  S.,  Which  Requires  Certain 
Officers  to  Give  Bond,  Secretary  op  War  May  Authorize  Ac- 
ceptance OP  Bond  Signed  by  Surety  Only,  and  May  Delegate  to 
Commanding  General,  P.  I.,  Right  to  Approve  Bonds. 

M.  Sufficiency  op  Description  op  Office  in  Bond, 

N.  Par.  589,  A.  R.,  1910,  as  to  Substituting  One  Surety  Company  for 
Another Page  203 

O.  Disbursing  Officer's  Bond  Under  Military  Government  o  Cuba 
Should  be  Filed  in  Insular  Bureau. 

P.  Bond  op  Treasurer  of  United  States  Military  Academy  for  Funds 
Not  Strictly  Public. 

Q.  Inspection  of  Official  Bonds  Under  Act  of  March  2,  1895. 

R.  Bond  Given  to  Carefully  Discharge  Duties  of  Office,  No  Responsi- 
bility FOR  Failure  of  Subordinate  to  Perform  Duties Page  204 

m.  BONDS  OF  CONTRACTORS. 

-    A.  Bond  May  be  Waived  Where  Not  Required  by  Statute. 

B.  Approval  op  Contract  Includes  Acceptance  of  Bond Page  205 

.  C.  Can  not  be  Assigned  to  Creditors  op  Contractor  to  Enable  Them  to 
Sue. 

D.  Where  Contract  Partly  Performed  New  Bond  May  be   Propor- 

tionately Reduced. 

E.  Requirement  Fixed  by  Regulation  as  to  Amount  of  Bond  May  be 

Waived. 

F.  W^here  Bidder  Notified  that  Bond  will  be  Required  to  Secure 

Performance  of  Contract  and  Lowest  Bidder  Failed  to  Enter 
into  Contract,  and  Thereupon  Contract  Let  to  Another,  Such 
Contract  Not  Required  to  be  Secured  by  Bond Page  206 

G.  Where  Sureties  are  Individuals  Additional  Security  can  not  be 

Required.     • 
IV.  BONDS  OF  EDUCATIONAL  INSTITUTIONS— COLLEGES. 

A.  There  Must  be  Evidence  that  Officer  Signing  has  Authority  to 

Represent  Institution. 

B.  Usually  Must   be    Shown    that   Officer   Signing   has   been   Duly 

Elected.    Exceptions Page  207 

C.  Resolution  Authorizing  Officer  to  Sign  Bond  Must  be  Clear  and 

Specific  as  to  Such  Authority. 

D.  General  Authority  to  Sign  Bonds  is  Sufficient. 


186  bonds:  synopsis. 

IV.  BONDS  OF  EDUCATIONAL  INSTITUTIONS— COLLEGES— Continued. 

E.  Authority  of    Officer    to    Sign    Bond  Must  Appear  from  Copy  of 

Records;  Certificate  of  Officer  to  this  Fact  Not  Sufficient. 

F.  Copy  of  Records  Must  Show  that  the  Particular  Person  Signing 

is  an  Officer Page  208 

G.  Bond  of  Corporation  Must  be  Strictly  in  Corporate  Name;    Name 

OF  Corporation  on  Seal. 

H.  It  Must  Appear  that  Board  or  Committee  Executing  Bond  or 
Authorizing  Officer  to  Sign  Bond  is  Vested  with  Sufficient  Power 
FOR  the  Purpose.    Instances. 

I.  Bond  Should  be  Accompanied  by  Copy  of  Charter  Showing  Insti- 
tution has  Power  to  Give  Bond Page  209 

J.  Under  Section  1225,  Revised  Statutes,  Principal  on  Bond  for  Cor- 
poration May  be  Individual  Instead  of  Corporation Page  210 

K.  Bond  with  One  Surety  May  be  Accepted. 

L.  Under  Section  1225,  Revised  Statutes,  Bond  May  be  Given  by  Surety 
Company  Alone,  Institution  Not  Signing Page  211 

M.  Bond  Must  State  College  can  Educate  150  Male  Students. 

N.  Bond  Given  Pursuant  to  Resolution  of  Board  Should  Not  be 
Accepted  where  it  is  Greater  than  the  Amount  Authorized  by 
Board, 

O.  Condition  that  Property  of  College  Should  be  Resorted  to  Before 
Surety  is  Liable  Not  Proper. 

P.  Bond  May  be  Given  to  Secure  Future  Issues  of  Ordnance,  as  Well 
as  Issues  Already  Made. 

Q.  Bond  Double  the  Value  of  Stores  Issued. 

R.  Bond  Should   Distinguish   Between   Stores  Already   Issued  and 
Those  to  be  Issued. 
V.  BONDS  WITH  CORPORATE  SURETY. 

A.  Even  in  Absence  of  Statute  Authorizing  Corporate  Surety  Such 

May  be  Accepted Page  212 

B.  Copy  of  Record  Showing  Selection  and  Qualification  of  Officers 

Must    be    Attached    to    Bond;    Certificate  of    Secretary    Not 
Sufficient. 

C.  Surety    Bound    Notwithstanding    Failure    of    Principal    to    Pay 

Premium. 

D.  Surety  Bound  by  Acts  of  Agent  Until  Notice  Given  of  Ratification 

OF  His  Authority. 

E.  Act  op  March  2,  1895,  Biennial  Examination  of  Bonds Page  213 

F.  Letter  of  Superintendent  of  Surety  Company  that  Company  Would 

Be  Held  on  Bond  After  Promotion  of  Officer  to  Higher  Grade 
NOT  Sufficient  to  Bind  Company. 

G.  Appointment  of  Agent  on  W^hom  Process  May  be  Served. 

H.  Under  Act  of  August  13,  1894,  Which  Authorizes  the  Acceptance  of 
Corporate  Sureties,  Attorney  General  Can  Not  Require  Addi- 
tional Security  for  Work  Already  Done  as  Condition  of  Being 

Allowed  to  Complete  Work Page  214 

I.  Foreign  Corporation  Not  Required  to  Comply  With  Laws  of  State 

Before  Doing  Business  with  United  States. 
J.  Act  of  August  13,  1894,  Which  Authorizes  the  Acceptance  of  Cor- 
porate Sureties,  Does  Not  Apply  to  Contract  with  Foreign  Con- 
tractor to  be  Performed  in  Foreign  Country  or  to  be  Performed 
IN  the  Philippine  Islands. 


BONDS  I  A.  187 

V.  BONDS  WITH  CORPORATE  SURETY— Continued. 

K.  Paragraph  585-(2),  Army  Regulations,  1910,  as  to  Bond  Being  Not 
Greater  than  Ten  Per  Cent  of  Company's  Paid-up  Capital  and 
Surplus Page  215 

L.  Act  op  March  23,  1910,  Amending  Act  of  August  13,  1894,  Authoriz- 
ing Secretary  op  the  Treasury  to  Inquire  into  Solvency  of 
Corporation. 

I  A.  Although  there  may  be  no  express  statutory  provision 
requiring  a  disbursing  officer  to  give  a  bond,  the  Government  may 
require  such  officer  to  give  one/   and  where   public    property   is 

*  Bonds  may  be  required  by  the  Government  from  officers  appointed  to  places  of 
trust  though  there  is  no  statutory  authority  to  take  such  bonds,  and  they  will  be 
valid  instruments.  In  a  bond  with  sureties  jjiven  by  an  officer  of  the  Government 
it  is  sufficient  to  make  the  bond  valid  that  it  is  voluntarily  given  and  that  the  office 
and  the  duties  assigned  to  the  officer  and  covered  by  the  bond  are  duly  authorized 
by  law. 

In  United  States  v.  Tingey  (5  Pet.,  116)  the  court  said:  "A  voluntary  bond  taken 
by  authority  of  the  proper  officers  of  the  Treasury  Department,  to  whom  the  dis- 
bursement of  the  public  moneys  is  intrusted,  to  secure  the  fidelity  in  official  duties 
of  a  receiver  or  an  agent  for  disbursement  of  public  moneys,  is  a  binding  contract 
between  him  and  his  sureties  and  the  United  States,  although  such  bondf  may  not 
be  prescribed  or  required  by  any  positive  law.  The  right  to  take  such  a  bond  is  in  our 
view  an  incident  to  the  duties  belonging  to  such  a  department,  and,  the  United 
States  having  a  political  capacity  to  take  it,  we  see  no  objection  to  its  validity  in  a 
moral  or  a  legal  view."  See  to  the  same  effect  Jessup  v.  United  States  (106  U.  S.,  147). 
In  Moses  v.  United  States  (166  U.  S.,  587)  the  court  said:  "The  consideration  or  the 
condition  of  the  bond  must  not  be  in  violation  of  law;  it  must  not  run  counter  to  any 
statute;  it  must  not  be  either  malum  prohibitum  or  malum  in  se.  Otherwise,  and  for 
all  purposes  of  security,  a  bond  may  De  valid  though  no  statute  directs  its  delivery. 

"We  do  not  understand  by  the  decision  in  Peters,  above  cited,  that  the  meaning 
of  the  term  '  voluntary  bond '  is  that  the  bond  must  have  been  offered  and  pressed 
upon  the  Government  when  never  asked  for  or  demanded  by  it.  It  is  a  voluntary 
bond  when  it  is  not  demanded  by  any  particular  statute  or  regulation  based  thereon 
and  when  it  is  not  exacted  in  violation  of  any  law  or  valid  regulation  of  a  department. 
Having  the  right  to  take  a  bond,  the  Government  in  a  case  like  this  has  the  right 
to  demand  it  from  the  officer  and  to  say  to  him  that  if  he  do  not  give  it  he  will  not 
be  continued  as  a  'property  and  disbursing  officer  of  the  Signal  Service.'  Such  a 
demand  when  complied  with  does  not  amount  to  the  illegal  exaction  or  extortion  of  the 
bond.  The  case  of  a  bond  so  procured  differs  radically  from  a  case  like  that  of  Tingey, 
supra,  inasmuch  as  the  bond  in  the  latter  case  was  extorted  from  a  reluctant  officer 
with  a  condition  therein  contained  different  from  that  which  the  statute  called  for. 

"The  power  of  the  Government  to  take  bonds  in  cases  of  this  nature  in  the  absence 
of  any  law  or  general  regulation  to  that  effect,  but  by  direction  of  the  head  of  a 
department,  was  recognized  again  in  the  case  of  the  United  States  v.  Bradley  (10  Pet., 
343,  359).  In  that  case  the  bond  taken  contained  conditions  beyond  those  provided 
for  in  the  act  of  Congress,  yet  it  was  held  that  those  conditions  which  were  within  the 
act  were  valid  and  could  not  be  regarded  as  extorted  from  the  obligor,  although  they 
were  set  forth  in  the  same  instrument  which  contained  other  and  illegal  conditions. 
The  case  of  Tingey  supra,  was  cited  by  the  court  and  approved  as  to  the  principle 
that  the  United  States  may  take  a  bond  as  security,  etc.,  when  not  in  violation  of 
any  statute. 

"In  this  case  we  think  the  bond  was  a  voluntary  bond  in  the  sense  that  it  was  not 
illegally  extorted  from  the  defendant  Howgate  under  color  of  office  or  by  threats  from 
a  superior  officer;  that  the  United  States,  through  the  Secretary  of  War,  had  the  right 
to  demand  a  bond  with  conditions  such  as  the  bond  in  question  contains,  and  that  it 
did  not  cease  to  be  a  volimtary  bond  merely  because  Lieut.  Howgate  did  not  gra- 
tuitously and  without  request  proffer  it  and  ask  that  it  might  be  received,  or  because 
he  was  reluctant  to  give  it  and  onlj^  gave  it  upon  the  demand  of  the  Secretary.  Under 
the  facts  developed  in  this  case,  situated  as  Lieut.  Howgate  was  with  respect  to  the 
public  moneys,  the  United  States,  having  the  right  to  take  a  bond,  had  the  right  to 
demand  it  under  penalty  of  refusing  to  permit  him  to  longer  remain  as  a  disbursing 
officer  or  to  further  receive  public  moneys  for  disbursement  by  him."  (See  also 
United  States  v.  Rogers,  28  Fed.  Rep.,  607,  and  32  id.,  890;  6  Op.  Atty.  Gen.,  24.) 


188  BONDS  I  B. 

intrusted  to  individuals,  there  being  no  law  requiring  a  bond,  the  Sec- 
retary of  War  may  properly  require  a  bond.  51  P.  4^.6,  Jan.  28, 1892. 
In  practice  bonds  are  frequently  required  by  the  United  States  in 
the  course  of  its  business,  although  there  may  be  no  statutory  author- 
ity for  the  bond.  Such  bonds  have  been  required  under  the  fol- 
lowing circumstances:  Where  the  title  to  property  leased  by  the 
United  States  from  a  private  individual  is  in  litigation,  recommended 
that  a  bond  be  required  from  the  lessor  before  payment  of  the  rent 
is  made.  C.  5352,  Nov.  19,  1898.  Where  a  statute  directed  the 
Secretary  of  War  to  deliver  obsolete  cannon  to  national  and  State 
homes  for  soldiers  and  sailors,  ''subject  to  such  regulations  as  he 
may  prescribe."  Held,  that  the  Secretary  would  properly  require 
that  bonds  be  furnished  for  the  safe-keeping  and  due  return  of  such 
ordnance.     51,  R.  44^,  Jcli^-  ^8,  1892.     Where  the  title  to  personal 

Eroperty  to  be  purchased  by  the  United  States  is  at  all  doubtful  a 
ond  of  indemnity  might  be  required  from  the  seller.  C.  6881, 
Aug.  12,  1899.  Where  a  vessel  was  made  in  a  foreign  country  and 
it  was  possible  the  laws  of  the  country  would  give  labor  and  material- 
men a  lien,  and  the  act  of  Congress  of  August  13, 1894  (28  Stat.,  278), 
would  not  be  applicable,  a  bond  might  be  required  to  secure  thepay- 
ment  of  laborers  and  material-men.  C.  19164,  Feb.  14, 1906.  Wliere 
certain  payments  to  a  contractor  had  been  suspended  by  the  auditor, 
and  an  appeal  had  been  taken  to  the  comptroller  and  pending  the 
comptroller's  decision  further  payments  to  the  contractor  had  been 
suspended  by  the  Secretary  of  War,  and  the  contractor  requested  a 
removal  of  the  suspension  and  payment  to  him,  offering  to  give  bond 
to  secure  the  repayment,  lield,  a  bond  might  be  accepted  as  requested 
conditioned  to  refund  all  payments  if  the  decision  of  the  comptroller 
should  be  adverse  to  the  contractor,  but  the  refunding  should  not 
be  conditioned  upon  the  determination  of  a  question  of  fact  which 
might  have  to  be  referred  to  the  courts  for  decision.  C.  13359, 
Sejpt.^  24,  1902.  Where  a  contract  for  the  installation  of  a  steam- 
heating  plant  provided  that  the  plant  should  stand  a  certain  test 
during  the  coming  winter,  but  in  fact  the  plant  was  not  installed 
until  spring,  thereby  making  it  imj^ossible  to  apply  the  test,  held, 
there  was  no  legal  objection  to  paying  the  amount  retained  on  the 
contractor  filing  a  bond  conditioned  to  make  good  any  defects 
that  might  develop  at  a  proper  test  in  freezing  weather.  C.  13001  j 
July  22,  1902.  Wnere  certain  officers  representing  the  United  States 
used  certain  patented  articles,  the  patent  not  being  owned  by  the 
contractor  from  whom  obtained,  and  although  the  United  States 
could  not  be  sued  in  tort  or  enjoined  from  using  the  articles,  yet  the 
officers  and  agents  of  the  United  States  possessed  no  such  exemption 
from  suit,  recommended  a  bond  be  required  from  the  contractor, 
before  payment  to  him  of  the  money  due  under  the  contract,  con- 
ditioned to  indemnify  the  officers  and  agents  of  the  United  States. 
C.  21164,  Sejn.  3,  1907. 

I  B.  The  purpose  of  a  bidder's  guaranty  is  to  furnish  sufficient 
security  that  the  bidder  will,  if  his  bid  be  accepted,  enter  into  con- 
tract as  prescribed.  But  the  direct  object  is  to  enable  the  Govern- 
ment to  collect  the  difference  between  the  bidder's  bid  and  the  amount 
the  Government  would  have  to  pay  some  one  else  for  the  supplies  or 
work  in  case  the  bidder  should  not  enter  into  contract  according  to 
his  bid.     The  guaranty  can  not  be  used  to  force  him  to  enter  into 


BONDS  10.  189 

his  contract;  but  it  is  valuable  and  essential  in  the  event  of  a  suit  to 
recover  such  dilTerence.  It  should  therefore  be  as  formal  and  legally 
suflicient  as  a  contractor's  bond,  and  prepared  with  a  view  to  serving 
as  a  basis  for  a  legal  claim  by  suit  if  necessary.  P.  66,  412,  Nov.  29, 
1892, 

I  C.  Such  defects  in  bidders'  guaranty  bonds  as  are  not  fatal  to 
the  vaUdity  of  the  bond,  are  in  practice  waived  by  the  department. 
C.  26905,  June  17,1910. 

I  D.  Where  instructions  to  bidders  provide  that  a  partner  will 
not  be  accepted  as  a  guarantor  or  surety  for  a  copartner,^  this  objec- 
tion may  be  waived  smce  it  would  not  in  any  way  affect  the  validity 
of  the  guaranty.     C.  20670,  Nov.  2-3,  1906. 

I  E.  A   bid  was   accompanied   by  a  guaranty  defective   in  that 

blank  spaces  were  left  in  filling  it  out  as  follows:  "We hereby 

guarantee  that  if  the  accompanying  proposal  of be  accepted 

m  any  or  all  of  its  items  within  60  days  after  the  opening  of  said 
proposal,  the  said  bidder  (naming  him)  will,  upon  written  notice  of 
such  acceptance,  if  so  required  by  the  United  States  or  its  legal 

representatives,  within  days  after  written  notification  of  said 

acceptance,  enter  into  a  contract,"  etc.  Held,  the  first  omission 
does  not  affect  the  validity  of  the  guaranty  and  may  be  waived; 
the  second  omission  is  cured  by  the  subsequent  appearance  of  the 
name  of  the  bidder;  the  third  omission  as  to  the  time 'of  entering 
into  the  contract  is  cured  by  the  fact  that  in  the  "accompanying 
proposal"  the  bidder  undertook  to  enter  into  the  contract  within 
the  time  designated  in  the  advertisement."     C.  20701,  Nov.  30,  1906. 

I  F  1.  Bids  were  required  to  be  accompanied  by  a  guaranty  that 
the  bid  if  not  withdrawn  prior  to  the  opening  of  bids  should  remain 
open  for  60  days  thereafter,  and  that  if  accepted  within  that  time  the 
bidder  would  dehver  the  required  articles,  or,  if  required,  enter  into 
a  contract  for  delivery  of  the  articles  in  accordance  with  the  terms 
of  the  proposal  and  acceptance,  and  give  proper  bond  for  performance 
of  the  contract.  Bidders  were  advised  that  no  bid  would  be  con- 
sidered unless  accompanied  by  a  proper  guaranty.  A  bid  was 
received  accompanied  by  a  guaranty  that  was  defective  by  reason  of 
the  omission  of  a  seal.  Held,  that  such  a  guaranty  was  not  enforce- 
able and  was  equivalent  to  no  guaranty,  that  the  actual  omission  of 
the  seal  destroyed  the  validity  of  the  instrument  as  a  sealed  instru- 
ment (which  is  valid  without  a  consideration  as  it  conclusively  pre- 
sumes a  consideration),  even  though  it  recited  that  a  seal  was  attached. 
The  instrument  was  not  valid  as  an  unsealed  instrument,  that  is  a 
common  contract,  because  it  lacked  consideration  to  sustain  the 
undertaking  of  the  guarantors.  C.  20670,  Nov.  26,  1906;  21707, 
J  art  ^/^  1907.  But  where  a  guaranty  was  made  and  delivered  in 
California  and  was  intended  to  be  binding  on  delivery,  the  proper  law 
of  the  contract  is  the  law  of  California,  and  where  the  code  of  that 
State  abolished  all  distinctions  between  sealed  and  unsealed  instru- 
ments, and  provided  that  a  written  instrument  was  presumptive 
evidence  of  a  consideration,  held  that  the  omission  of  a  seal  did  not 
affect  the  validity  of  the  guaranty.     C.  18583,  Sept.  18,  1905. 

I  F  2.  Where  a  paper  purporting  to  be  a  bond  and  reciting  that  it 
was  "sealed,"  was  not  in  fact  sealed,  lield  that  not  being  sealed  it 

1  See  par.  581,  A.  R.,  1910,  to  same  effect. 


190  BONDS  I  F  3. 

was  not  a  bond,  but  if  it  was  entered  into  by  competent  parties,  and 
for  a  lawful  purpose  not  prohibited  by  law,  and  was  founded  upon  a 
sufficient  consideration,  it  would  be  a  valid  contract,  and  could  be 
legally  enforced.^    R.  34,  Ul,  Feb.  25,  187,3. 

I  F  3.  As  a  printed  scroll  or  other  device  is  recognized  in  all  States 
and  Territories  (including  Alaska,  Hawaiian  Islands,  Porto  Kico,  and 
the  Philippines)  where  any  seal  at  all  is  required,  except  Maine,  Mass- 
achusetts, and  New  Hampshire,  as  a  valid  substitute  for  a  seal  in  the 
execution  of  an  instrument  under  seal,  the  War  Department  will  not 
require  an  adhesive  seal  to  be  attached  to  a  Government  instrument 

Eurporting  to  be  under  seal,  unless  such  instrument  is  executed  or  to 
e  performed  in  one  of  these  excepted  States.^     C.  1769,  May  29, 
1907. 

I  G  1.  Where  a  corporation  is  principal  in  a  bond  given  to  the 
United  States  its  full  legal  corporate  name  should  be  expressed. 
Thus  where  the  laws  of  the  State  in  wliich  such  a  corporation  was 
created  required  that  the  name  of  a  corporation  should  always  include 
the  name  of  the  city  or  county  in  which  it  was  formed,  and  a  corpora- 
tion obligor  had  been  incorporated  as  ''The  *  *  *  Company  of 
Baltimore  City,"  held  that  the  bond  was  incomplete  unless  this  addi- 
tion was  set  forth,  and  the  instrument  executed  accordingly.^  P.  58, 
147,  Feb.  24,  1893;  G.  2395,  July  21,  1896. 

I  G  2.  Where  a  corporation  is  named  as  principal  in  a  bond  its 
corporate  name  and  seal  (if  it  has  one)  should  be  affixed  by  the  officer 
having  authority  to  do  so.  R.  55,  686,  June  30,  1888;  P.  65,  190, 
409,  412,  and  414,  June  to  Sept.,  1894. 

1  G  3.  Where  the  principal  on  a  bond  was  a  foreign  corporation 
and  there  was  no  evidence  to  show  that  the  persons  who  executed  it 
as  the  directors  and  manager  were  such  or  that  they  had  authority 
to  execute  it  as  required  by  Army  Kegulations,*  and  the  case  would 
not  admit  of  the  delay  necessary  to  secure  proper  evidence  as  to  the 
execution  of  the  bond,^  recommended,  that  the  individual  sureties  on 
the  bond  be  required  to  sign  a  statement  that  the  bond  is  properly 
executed  by  and  is  binding  upon  the  principal.  This  would  estop 
the  sureties  from  contending  in  case  of  a  suit  on  the  bond  that  it 
is  not  binding  on  the  principal.^     C.  6817,  July  29,  1899.     So,  also, 

^  United  States  v.  Linn,  15  Peters,  290.  Where  an  official  bond  offered  by  the 
principal  without  seals  was  returned  to  him  to  have  the  seals  put  on,  and  was  brought 
back  by  him  with  the  seals  attached,  the  consent  of  the  sureties  thereto  will  be  pre- 
sumed in  action  on  the  bond,  unless  the  contrary  appears.  Moses  v.  U.  S.,  166  U.  S., 
571;  18  Op.  Atty.  Gen.,  458. 

2  Par.  578,  A.  R.,  1910,  requires  that  contractor's  bonds  shall  be  under  seal  (not 
necessarily  an  adhesive  seal).  In  practice  bonds  of  all  kinds  in  the  business  of 
the  War  Department  are  invariably  required  to  be  under  seal  (not  necessarily  an 
adhesive  seal)  regardless  of  any  requirement  of  statute  or  regulation,  and  a  scroll  seal  is 
printed  on  the  blank  forms,  which  scroll  is  adopted  by  the  signer  as  his  seal.  See 
District  of  Columbia  v.  Camden  Iron  Works,  181  U.  S.,  453,  that  either  a  corporation 
or  an  individual  may  use  and  adopt  any  seal. 

3  See  "Bonds"  IV  G. 

*  Par.  582j  A.  R.,  1910,  is  to  the  sSme  effect. 

*  In  practice  it  is  only  in  cases  where  it  is  very  difficult  to  obtain  the  regular  execu- 
tion of  the  bond  by  the  principal,  or  where  the  conditions  will  not  permit  of  delay, 
that  it  is  recommended  the  bond  be  approved  upon  obtaining  the  statement  of  the 
sureties  that  the  principal  has  properly  executed  the  bond. 

®  The  statement  by  the  sureties  need  not  be  under  seal,  as  their  liability  would  be 
based  on  the  principles  of  equitable  estoppel  and  not  on  any  principle  relating  to 
sealed  instruments. 


BONDS  I  G  4.  191 

where  the  surety  was  a  corporation,  recommended,  that  the  proper 
agent  of  the  surety  company  be  required  to  sign  a  similar  statement. 
C.  6901,  Aug.  18,  1899;  7278,  Dec.  11,  1899;  6817,  Sept.  15,  1904; 
28049,  Mar.  29,  1911.  So,  also,  where  a  corporation  was  principal 
and  its  board  of  directors  attempted  to  ratify  tne  prior  execution  of  a 
bond,  but  failed  to  show  that  the  bond  when  executed  was  binding  on 
the  corporation,  recommended,  that  the  sureties  be  required  to  sign  a 
similar  statement.  C.  6887,  Sept.  22,  1899.  So,  also,  where  it  did 
not  clearly  appear  that  the  person  executing  the  bond  for  the  corpo- 
ration principal  was  authorized  to  do  so,  a  similar  recommendation 
was  made.  C.  6901,  Aug.  18,  1899;  13024,  Dec.  14,  1908.  So,  also, 
where  there  was  no  evidence  of  the  express  authority  of  a  partner  to 
sign  the  firm  name  to  a  bond,  and  it  was  impossible  to  obtain  such 
authority,  similar  action  was  recommended.     C.  7348,  Nov.  28,  1899. 

I  G  4.  The  fact  that  a  corporation  has  not  adopted  a  corporate 
seal  will  not  affect  the  validity  of  its  execution  of  a  bond  in  which 
it  is  principal  or  surety,  provided  some  form  of  seal  be  added  to  its 
signature.  A  corporation  may  make  and  use  any  seal  in  its  discre- 
tion in  the  same  manner  as  a  private  individual.^  R.  50,  525, 
July  15,  1886;  C.  836,  Nov.  7,  1905. 

I  H  1.  An  unincorporated  body  that  has  no  legal  entity  can  not 
become  a  party  to  a  bond  to  secure  the  safe  return  of  public  property 
received  by  it.  In  such  a  case  it  is  the  practice  to  require  the  Dond 
to  be  signed  by  a  private  person  as  principal. ^  As,  where  public 
property  was  by  authority  of  Congress  loaned  to  the  inaugural  com- 
mittee a  bond  signed  by  a  private  individual  as  principal  was  required. 
C.  9788,  Feb.  24,  1909.  Where  public  property  was  loaned  as  an 
exliibit  to  an  unincorporated  body.  0. 12868,  June  27,  1902;  27003, 
July  11,  1910.  So  also  where  a  railroad  company  carried  on  a  trans- 
fer business  under  the  name  of  "The  Blue  Line  Transfer  Co."  Jield 
that  as  there  w^as  no  such  legal  entity  as  the  Blue  Line  Transfer  Co. 
the  bond  should  be  in  the  name  of  the  railroad  company  as  principal, 
or  if  desired  in  the  name  of  the  manager  of  the  Blue  Line  Transfer 
Co.  individually  as  a  principal,  and  that  if  the  latter  method  was 
adopted  the  condition  of  the  bond  should  recite  that  the  contract 
had  been  entered  into  by  the  raih*oad  company  under  the  name  of 
the  Blue  Line  Transfer  Co.     C.28614,  Sept.  5,  1911. 

I  H  2.  The  United  States  Soldiers'  Home  desired  to  obtain  from  a 
bank  money  of  a  deceased  inmate  of  the  home.  Held  that  as  the 
home  was  not  a  legal  entity  it  could  not  give  a  bond,  but  that  the 
proper  procedure  would  be  to  have  the  board  of  commissioners  pass 
a  resolution  authorizing  the  treasurer  of  the  home  in  his  official 
capacity  to  execute  the  bond,  and  the  bond  should  then  be  executed 
by  the  treasurer  in  his  official  capacity.  ^  G.  11965,  Jan.  23,  1902. 

1  H  3.  Where  an  individual  conducts  his  business  under  a  company 
name,  a  contract  and  bond  should  be  in  the  name  of  the  individual 
and  not  in  the  name  of  the  company,  as  the  latter  being  a  mere  name 
having  no  existence  as  an  artificial  being  such  as  a  partnership  or 
corporation  has,  is  incapable  of  being  a  party  to  a  bond.  C.  18197, 
May  11,  1907. 

^See  26  Op.  Atty.  Gen.,  507,  and  District  of  Columbia  v.  Camden  Iron  Works, 
181  U.  S.,  453,  to  same  effect. 

2  See  "  Bonds  "  IV  J. 


192  BONDS  I   H  4. 

I  H  4.  While  the  government  of  the  Philippine  Islands  was  being 
administered  under  the  authority  of  the  President,  there  being  no 
act  of  Congress  or  the  Phihppine  Commission  establishing  a  political 
society  with  corporate  existence  by  the  name  of  the  '^Government 
of  the  Phihppine  Islands/'  held  there  was  no  legal  entity  by  the 
name  of  '^ Government  of  the  Philippine  Islands"  capable  of  being 
the  obligee  in  a  bond;  that  a  bond  given  to  secure  the  deposit  of 
funds  of  the  government  of  the  Philippine  Islands  should  run  to 
''The  United  States  of  America"  either  with  or  without  the  addi- 
tional words  "for  the  use  of  the  government  of  the  Philippine  Islands." 
C.  12852,  June  24,  1902. 

1 1.  There  is  no  legal  objection  to  a  bond  reciting  that  the  contract 
secured  thereby  has  been  executed  by  the  "Chief  of  Ordnance," 
"Commanding  officer,  Watervliet  Arsenal,"  etc.,  the  name  of  the 
officer  being  omitted.     C.  18396,  Aug.  3,  1905. 

I  J.  The  absence  of  a  witness  to  the  signature  of  a  principal  or 
surety  on  a  bond  does  not  affect  the  validity  of  the  bond,  and  may 
be  waived  where  the  signature  of  the  principal  is  known  to  the 
department.     C.  1435,  Nov.  26,  1900. 

I  K  1.  A  bond  should  of  course  be  dated,  but  the  omission  of  the 
date  will  not  affect  the  validity  of  the  instrument,  as  the  true  date  of 
execution  can  be  otherwise  proved,  in  the  event  of  a  suit  on  the 
bond.i  C.  3511,  Sept.  15,  1897;  2687,  Nov.  2,  1897;  2990,  Aug.  13, 
1904;  1595,  Aug,  13, 1906;  4279,  June  8,  1898;  3645,  Oct.  28,  1902. 

I  K  2.  Where  a  bond  was  executed  on  a  certain  date  by  a  cor- 
poration as  principal  to  secure  the  safe-keeping  of  a  deposit  of  public 
funds  and  the  bond  recited  that  on  a  subsequent  date  a  resolution  of 
the  board  of  directors  had  been  passed  authorizing  the  execution  of 
the  bond,  Tield  this  inconsistency  of  dates  did  not  constitute  a  fatal 
defect,  that  parol  evidence  could  be  introduced  to  prove  the  real  date 
of  the  bond  was  different  from  that  stated  in  the  bond  and  the  bond 
would  take  effect  from  delivery.  C.  6817,  Oct.  27,  1904.  But  where 
a  bond  given  by  a  corporation  to  secure  the  safe-keeping  of  a  deposit 
of  public  funds  was  dated  September  6,  1900,  and  recited  that  the 
board  of  directors  on  September  19,  1900,  had  authorized  the  execu- 
tion of  the  bond,  and  the  authority  given  by  the  board  referred  only 
to  the  execution  of  bonds  in  the  future,  held  that  if  the  dates  were 
correct  the  bond  should  be  reexecuted  on  a  date  subsequent  to  Sep- 
tember 19,  1900,  or  the  bond  of  September  6,  1900,  should  be  ratified. 
C.  6825,  Oct.  5,  1900;  20656,  Mar.  19,  1907.  So,  where  a  bond  for 
the  safe  keeping  of  ordnance  issued  to  an  educational  institution  was 
dated  September  9,  1906,  the  authority  for  the  execution  of  the  bond 
being  a  resolution  of  the  board  of  regents  passed  October  4,  1906. 
Held,  the  bond  should  be  reexecuted  as  of  or  subsequent  to,  October 
4,  1906.  C.  3543,  Oct.  15,  1906;  27659,  Jan.  4,  1911.  But  where  a 
bond  given  by  a  corporation  was  dated  July  5,  1907,  while  the  resolu- 
tion authorizing  its  execution  was  dated  July  8,  1907,  held  that  the 
irregularity  of  dates  in  no  way  affected  the  validity  of  the  bond,  that 

1  Bishop,  on  Contracts,  sec.  114.  "It  (an  instrument  under  seal)  need  have  no 
date;  it  is  even  good  with  an  impossible  one,  or  one  differing  from  the  fact.  Its 
date  in  law  is  that  of  the  delivery.  Nor  need  it  mention  the  place  where  executed." 
See,  also,  Murfree  on  Official  Bonds,  sec.  6. 


BONDS   I   K  3.  193 

the  bond  became  operative  from  delivery  wliicli  was  subsequent  to  the 
(hite  of  the  resolution.     C,  15730,  July  24,  1907. 

I  K  3.  A  bond  was  executed  on  a  certain  date,  and  it  was  recited 
therein  that  the  i)rinci})al  had  on  a  subsequent  date  entered  into  the 
contract  for  the  due  performance  of  which  the  bond  was  given.  Held, 
the  inconsistency  does  not  atfect  the  vaHdity  of  the  bond;  the  fact 
that  the  bond  was  executed  before  the  contract  was,  is  immaterial, 
but  the  recital  is  a  part  of  the  means  of  identifying  the  bond  and 
should  not  be  contradictoij.  Therefore  reco^mnended  in  the  par- 
ticular case  that  to  avoid  m  the  event  of  a  suit  on  the  bond  the 
lu^cessity  of  resorting  to  outside  evidence  to  identify  the  contract, 
a  new  bond  be  required,  the  latter  to  refer  to  the  contract  as  one  which 
irill  be  entered  into.  C.  2765,  Nov.  24,  1896;  3053,  Apr.  12,  1897; 
ol64,  Apr.  29,  1897;  3640,  Nov.  5,  1897. 

I  L.  AVhcre  a  guaranty  accompanying  a  bid  was  signed  by  the 
father  of  the  bidder,  held,  binding  on  the  father.  C.  580,  Oct.  29, 
1S94.  But  where  a  contractor  offered  a  bond  subscribed  by  his 
two  daughters  as  sureties,  advised  that  notwithstanding  the  financial 
relations  of  the  daughters  to  the  parent  might  be  satisfactorily 
explained,  and  notwithstanding  the  daughters  were  unmarried,  the 
bond  should  not  be  accepted.     R.  39,  518,  Apr.  26,  1878. 

IM  1.  Obhgations  incurred  by  sureties  are  strictly  construed  in 
their  favor,  and,  as  a  rule,  are  paid  only  when  enforced  by  law.  A 
bond,  therefore,  should  not  be  accepted  where  suit  can  not  be  suc- 
cessfully brought  upon  it  against  the  sureties,  whose  contract,  on  the 
face  of  the  instrument,  must  thus  be  clearly  valid  and  binding.  P.  56, 
412,  Nov.  29,  1892. 

I  M  2.  If  after  the  execution  of  a  bond  a  material  change  be  made 
in  the  name  or  description  of  the  principal,  by  erasure,  interlineation, 
or  otherwise,  without  the  assent  of  the  sureties  or  a  surety,  even 
though  such  change  be  made  to  correct  a  mistake,  the  surety  or  sure- 
ties not  consenting  will  be  released.  In  a  case  of  such  an  alteration  rec- 
ommended that  a  new  bond  be  required,  as,  for  instance,  where  the 
name  of  the  principal  is  changed  from  ''Mchigan  State  Board  of  Agri- 
culture" to  ''The  State  Board  of  Agriculture."  P.  35,  283,  Sept.  27, 
1889.  Where  the  name  of  the  principal  is  changed  from  '^  Purdue 
University"  to  ''The  Trustees  of  Purdue  University."  P.  57,  4U 
Dec.  14, 1892;  58, 400,  Mar.  24, 1893.  So,  also,  where  the  name  of  one 
of  two  sureties  was  erased  and  a  new  surety  was  substituted  without 
the  consent  of  the  remaining  surety,  recommended  that  the  written 
assent  of  the  remaining  surety  to  the  substitution  be  obtained.  C. 
1262,  May  21,  1895.  And  where  the  penalty  was  changed  by  the 
principal  from  $40,000  to  $20,000  subsequent  to  the  execution  of  the 
bond,  recommended  that  a  statement  signed  by  the  sureties  be  required 
to  the  effect  that  the  change  was  made  with  their  consent.  O.  237, 
Sept.  12, 1898.  But  the  alteration  of  a  bond  by  striking  out  the  words 
''captain  and  commissary  U.  S.  Army,"  which  described  the  principal, 
and  interlining  the  words  "commissary  U.  S.  Army  with  rank  of  cap- 
tain" is  not  a  material  alteration.     C.  9119,  Aug.  31,  1901. 

I  M  3.  A  bond  for  the  faithful  performance  of  a  contract  will  not 
cover  material  modifications  of  the  contract,  in  the  form  of  a  supple- 
mental agreement  or  otherwise,  unless  the  sureties  formally  assent  to 
31106°— 12 13 


194  BONDS   I   M   4. 

the  same.^  P.  30,  116,  Feb.  6,  1889;  55,  365,  Sept.  14,  1892;  C.  12U, 
Apr.  12,  1895;  21688,  Nov.  19,  1907. 

I  M  4.  A  bond  to  secure  the  performance  of  a  contract  is  valid  to 
secure  the  performance  of  any  such  modifications  thereof  as  are 
authorized  by  the  terms  of  the  contract  itself,^  but  will  not  cover 
modifications  not  thus  authorized  and  which  substantially  make  a 
new  contract.     P.  54,  7  and  162,  May  27  and  June  20, 1892. 

I  M  5.  A  bond  can  not  be  extended  beyond  the  period  originally 
fixed  by  its  terms  so  as  to  continue  to  bind  the  sureties,  unless  they 
consent  to  such  extension.  R.  20,  270,  Apr.  13,  1870.  Where  the 
United  States  rented  certain  premises  to  a  private  individual  and  the 
rent  was  secured  by  bond  and  the  lessee  applied  for  a  material  delay 
in  making  payment  of  rent,  held  that  to  grant  such  application  would 
discharge  the  sureties  unless  they  gave  their  assent  to  the  delay,  and 
recommeded  that  the  same  be  not  acceded  to  without  their  consent  to 
the  arrangement.3    R.  55,  196,  May  12,  1888. 

I  M  6.  Where  a  bond  given  for  the  due  performance  of  a  contract 
provided  that  the  surety  should  be  bound  "as  well  during  any  period 
of  extension  of  said  contract  that  may  be  granted  on  the  part  of  the 
United  States  as  during  the  original  term  of  the  same,"  lield  that  the 
surety  would  continue  to  be  bound  even  though  the  contract  was  ex- 
tended more  than  once,  either  by  an  extension  to  a  specific  date  or  by  a 
waiver  of  the  time  limit.^     C.  13906,  Jan.  3, 1903;  20423,  Nov.  21 ,  1906. 

I  M  7.  A  contract  was  modified  by  supplemental  agreement  with- 
out the  consent  of  the  surety  on  the  contractor's  bond.  Held,  that 
such  a  bond  may  be  considered  as  in  effect  two  obligations,  one  to  the 
United  States  to  secure  the  due  performance  of  the  contract,  and  the 
other  to  the  United  States  but  on  behalf  of  labor  and  material-men 
to  secure  their  payment,  and  that  the  obligation  for  the  benefit  of 
the  labor  and  material  men  was  not  released  by  the  action  of  the 
contractor  and  the  United  States  in  modifying  the  contract  without 
the  surety's  consent.^     G.  17474,  Feb.  3,  1905. 

IMS.  The  omission  of  the  name  of  the  principal  or  surety  from 
the  body  of  the  bond  does  not  affect  its  validity.     C.  24908,  May  10, 

^  See  also,  VIII  Comp.  Dec,  555,  where,  as  to  the  payment  of  retained  percentages  to 
a  contractor  before  completion  of  the  contract,  it  is  said:  "  *  *  *  the  very  purpose 
of  such  retention  was  to  keep  the  contractor  a  creditor  and  spur  him  on  to  complete 
the  work  according  to  the  contract  in  order  that  he  may  collect  such  retentions  and 
make  them  his  own.  The  sureties  are  interested  in  such  retention,  and  if  the  owner 
should  pay  them  to  the  contractor  before  they  are  due  under  the  contract  such  act 
would  result  in  the  release  of  the  sureties  on  the  ground  that  such  action  deprives 
them  of  a  substantial  means  of  indemnity  from  loss  if  they  are  called  upon  to  finish  the 
work  or  respond  in  damages  in  case  the  work  is  relet  at  an  advance  in  price  over 
that  originally  contracted  for.     (See  57  Fed.  Rep.,  179.)" 

2  See  United  States  v.  Freel,  186  U.  S.,  309. 

3  See  U.  S.  V.  McMuUen  (222  U.  S.,  460),  where  the  contract  provided  for  possible  ex- 
tensions of  time,  but  did  not  expressly  provide  that  the  sureties  should  continue  bound, 
and  it  was  held  that  the  sureties  were  not  discharged  by  an  extension  of  the  time  for 
performance.  See  also  U.  S.  v.  Fidelity  &  Guaranty  Co.  (178  Fed.  Rep.,  721),  where 
It  was  held,  on  the  authority  of  Guaranty  Co.  v.  Pressed  Brick  Co.  (191  U.  S.,  416),  that 
the  obligation  of  a  paid  surety  company  in  respect  to  labor  and  material-men  is  not 
affected  by  a  reasonable  extension  of  the  time  ioi  payment  of  such  claims  in  the  absence 
of  a  showing  of  actual  injury. 

*  All  contract  bonds  under  the  War  Department  contain  the  above-quoted  pro- 
vision continuing  the  liability  of  sureties  during  any  period  of  extension  of  the  contract. 

s  See  Conn.  v.  State,  125  Ind.  514;  46  Nebr.,  644;  41  Nebr.,  655;  40  Minn.,  27; 
U.  S.  Rundle,  100  Fed.  Rep.,  400;  U.  S.  v.  National  Surety  Co.,  92  id.,  549;  U.  S.  v. 
American  Bonding  Co.,  89  id.,  921;  U.  S.  Fidelty,  etc.,  Co.  v.  Golden  Pressed  Brick 
Co.,  191  U.S.,  416. 


BONDS   I   M   9.  195 

1909.  So  wliere  tlie  Christian  name  of  tlie  ])rincij)al  in  the  body  of 
the  bond  was  written  "Alvin"  while  the  name  signed  was  ''Alva," 
held  in  view  of  the  similarity  in  sound  of  the  names,  and  the  fact  that 
it  is  the  signature  or  seal  of  the  party  that  fixes  his  liability  on  the 
bond,  not  tlie  recital  of  liis  name  in  the  body  of  the  instrument,  the 
bond  is  valid.     C.  25293,  Aug.  U,  1907, 

I  M  9.  The  affidavit  of  justification  should  be  taken  before  some 
officer,  like  a  notary  public,  having  authority  to  administer  oaths  for 
general  purposes.^  Ii  the  officer  has  an  official  seal  it  must  be  affixed; 
otherwise  tne  proper  certificate  as  to  his  official  character  must  be 
furnished.  P.  38,  412,  Feb,  12,  1890;  63,  117,  Jan.  2,  1894;  65,  192, 
June  4,  1894'  But  as  the  justification  is  no  part  of  the  bond,  and  as 
the  administration  of  the  oath  by  an  official  not  competent  to  admin- 
ister it  does  not  affect  the  validity  of  the  bond,  the  irregularity  of  the 
justification,  where  there  is  nothing  to  show  that  the  oath  was  not 
taken  in  good  faith  by  the  surety,  may  be  waived  b}^  the  Secretary  of 
War,  and  in  practice  is  waived  and  the  bond  accepted  if  otherwise  valid. 
P.  62, 367,  Nov.  21 ,  1893;  C.  78,  Nov.  5, 1894;  372,  Sept.  24, 1894.^  The 
omission  of  affidavits  of  justification  and  the  omission  of  a  certificate 
as  to  the  sufficiency  of  tne  guarantors  of  a  bid  docs  not  affect  the  va- 
lidity of  the  guaranty  and  may  be  waived.     C.  23365,  June  5,  1908. 

The  affidavit  of  justification  oi  a  surety  should  be  dated,  so  that  it  may 
appear  when  he  was  worth  the  amount  specified.  P.  30,  233,  Feb.  19, 
1889. 

I  M  10.  The  failure  to  secure  the  consent  of  one  of  the  bondsmen 
to  the  modification  of  a  contract  releases  not  only  that  bondsman,  but 
afi  the  bondsmen.     C.  1244,  ^pr.  12,  1895. 

I  M  11.  Wliere  the  obhgation  of  a  bond  is  joint  and  several  ^  (as 
is  the  case  in  official  bonds),  the  estate  of  the  deceased  surety  is  not 
discharged  by  the  death  of  the  surety,  and  there  is  no  necessity  of  a 
new  bond.     C.  4341,  Sept.  9,  1902. 

I  M  12.  Where  it  became  known  to  the  United  States  that  at  the 
time  a  bond  given  to  secure  a  contract  was  delivered  to  the  agent  of 
the  United  States  it  was  incomplete  by  reason  of  the  omission  of  the 
date  of  the  contract,  the  names  of  the  members  of  the  commission 
representing  the  United  States  and  the  seals  opposite  the  names  of  the 
principals  and  sureties,  and  these  omissions  were  supplied  before  the  ap- 
proval of  the  bond,  but  whether  with  the  knowledge  and  consent  of  the 
sureties  was  not  known.  Held,  that  it  should  be  assumed  the  supply- 
ing of  the  omissions  was  not  with  the  knowledge  and  consent  of  the  sure- 
ties and  that  a  new  bond  should  be  required.     C.  2765,  Nov.  24,  1896. 

I  M  13.  Paragraph  561,  Army  Regulations,  1895  (581  of  1910), 
provides  that  ''stocKholders  who  are  not  officers  of  a  corporation  may 
be  accepted  as  sureties  for  such  corporation."  Held,  that  a  director 
or  member  of  a  board  of  trustees  of  a  corporation  are  ''officers."  C. 
8745,  Aug.  9,  1900.  Held,  also,  that  the  regulation  does  not  apply 
where  the  treasurer  of  a  corporation  is  not  a  stockholder,  and  he  may 
be  accepted  as  surety.  The  reason  for  the  regulation  is  that  usually 
officers  of  corporations  are  the  principal  stockholders  and  have  the 

^  See  par.  586,  A.  R.,  1910,  to  same  effect.  Under  section  19  of  act  of  Congress  of 
May  28,  1896  (29  Stat.,  184),  United  States  commissioners  and  all  clerks  of  United 
States  courts  are  authorized  to  administer  oaths  generally.     (Ill  Comp.  Dec,  65 .> 

^  If  the  obligation  should  be  joint  only,  the  estate  of  the  deceased  surety  would  be 
discharged  by  death,  and  the  surviving  surety  alone  would  remain  liable  on  the  bond. 


196  BONDS   I   M   14. 

bulk  of  their  fortunes  invested  in  the  business  of  the  corporation,  so 
that  the  Government  would  get  little,  if  any,  additional  security  by 
accepting  them  on  the  bond  of  the  corporation.  C.  272J,.2,  Sept.  13, 
1910.  Held,  also,  that  if  a  stockholder  of  a  contracting  company 
becomes  a  surety  on  the  company's  contract  and  subsequently  during 
the  performance  of  the  contract  is  elected  secretary  of  the  contracting 
company,  he  does  not  thereby  become  disqualified  from  continuing  as 
surety.  C.  28351,  May  17,  1911.  The  objection  that  a  stockholder 
who  is  an  officer  of  a  corporation  is  a  surety  on  the  bond  of  the  cor- 
poration does  not  affect  the  vahdity  of  the  bond  and  may  be  waived. 
.a  27302,  Nov.  29,  1910. 

I  M  14.  It  is  not  the  practice  of  the  War  Department  to  accept  a 
married  woman  as  surety,  and  before  an  unmarried  female  surety 
mil  be  accepted  she  is  required  to  make  oath  that  she  is  single  in 
addition  to  justifying  as  requked  of  other  sureties,  the  affidavit  show- 
ing that  she  is  worth  the  sum  stated  in  her  own  right.  C.  1262,  Apr. 
18,  1895;  2360,  June  12,  1896;  2990,  Mar.  8,  1897;  4623,  July  15, 
1898;  424.7,  Apr.  9,  1910. 

I  N.  The  law  of  the  place  at  which  a  contract  was  made  governs 
as  to  its  interpretation,  obligation,  and  legal  effect,  except  where  the 
contract  is  to  be  performed  elsewhere,  in  which  case  the  law  that 
governs  in  these  respects  is  the  law  of  the  place  of  performance;  but 
the  law  of  the  place  where  the  contract  was  made  or  the  act  was  done 
governs  in  respect  to  the  formahties  of  execution  and  the  capacity  of 
the  parties.^  An  official  bond,  made  to  the  United  States,  wherever 
actually  signed,  is,  as  has  been  held  by  the  Supreme  Court,  a  contract 
to  be  performed  at  Washington,  and  is  to  be  governed  as  to  its  inter- 
pretation, obligation,  and  legal  effect  by  the  law  of  the  District  of 
Columbia. 2  So  where  the  river  and  harbor  act  of  March  2,  1907 
(34  Stat.,  1073),  provided  for  the  improvement  of  Bayou  Teche,  La., 
''upon  the  United  States  being  secured  against  possible  claims  for 
damages  resulting  from  the  overflow  of  lands  by  reason  of  the  lock 
and  dam  improvement,  or  from  the  draining  of  Spanish  Lake,"  and 
the  bonds  given  were  not  under  seal  but  were  executed  in  Louisiana 
where  the  laws  do  not  provide  for  instruments  under  seal,  recom- 
mended that,  as  the  bonds  were  to  be  accepted  by  the  Government 
and  as  the  law  as  to  the  formalities  of  execution  is  the  law  of  the 
place  where  the  acceptance  is  made,  the  bonds  be  referred  to  the 
district  engineer  officer  at  New  Orleans  for  acceptance  in  the  State 
of  Louisiana.     C.  24625,  Sept.  1,  1909. 

I  O.  The  duty  of  taldng  and  approving  bonds  under  the  War 
Department,  whether  taken  by  virtue  of  a  statute  or  not,  rests 
entirely  in  the  War  Department.  The  Treasury  Department  has  no 
authority  to  review  the  action  of  the  War  Department  so  taken  or  to 
pass  upon  the  sufficiency  of  the  sureties  on  bonds  given  under  section 
1191,  R.  S.3  P.  50, 118,  Nov.  2, 1891;  C.  18002,  Apr.  18, 1908;  13893, 
July  23,  1909;  and  Aug.  6,  1909. 

1  U.  S.  V.  Garlinghouse  (Fed.  Cas.  No.  15189);  9  Cyc,  671,  and  authorities  cited. 

2  Cox  V.  U.  S.  (6  Pet.,  172);  Duncan  v.  U.  S.  (7  id.,  435). 

^  In  U.  S.  V.  Jones,  18  Howard,  92,  the  court  said  "the  acts  and  decisions  of  the  head 
of  a  department  on  subjects  submitted  to  his  jurisdiction  and  control  by  the  Consti- 
tution and  laws  do  not  require  the  approval  of  any  officer  of  another  department  to 
make  them  valid  and  conclusive.  The  accoimting  officers  of  the  Treasury  have  not 
the  burden  of  responsibility  cast  upon  them  of  revising  the  judgments,  correcting  the 
supposed  mistakes  or  annulling  the  orders  of  the  heads  of  departments." 


BONDS   I   P.  197 

I  P.  Even  after  due  performance  of  the  conditions  of  a  bond,  it  is 
contrary  to  the  practice  of  the  department  to  surrender  such  bonds. 
Where  the  records  show  that  all  tlie  conditions  have  been  fully  per- 
formed bondsmen  in  answer  to  a  reouest  arc  so  advised.  If  the  infor- 
mation so  given  should  happen  to  be  erroneous  it  is  not  believed  its 
communication  would  operate  as  an  estoppel,  as  the  question  of 
whether  the  bond  is  valid  bv  reason  of  complete  performance  depends 
upon  the  question  of  whether  or  not  the  conditions  have  been  per- 
formed in  fact.  C.  18610,  Sept.  20,  1907.  So,  where  a  surety 
requested  to  be  advised  whether  '^  deliveries  have  been  satisfactorily 
completed"  by  his  principal,  held,  there  was  no  objection  to  advising 
him  of  the  status  of  the  contract  in  question,  coupled  with  the  caution 
that  the  information  is  not  intended  to  compromise  the  interest  of  the 
United  States,  should  it  be  found  that  the  contract  has  not,  in  fact, 
been  faithfully  performed  by  the  contractor.  C.  18589,  Sept.  21 ,  1905. 
So,  held,  where  a  bond  was  given  for  the  disbursement  of  funds  appro- 
priated for  a  Cuban  exhibit.  C.  8034,  Jan.  14,  1901.  In  case  of  a 
contractor's  bond,  the  requirement  of  the  act  of  August  13,  1894  (28 
Stat.,  278),  that  the  principal  ''shall  promptly  make  full  payments  to 
all  persons  supplying  it  labor  or  material  in  the  prosecution  of  the  work 
pro\4ded  for,"  and  the  requirement  that  the  Secretary  of  War  shall  fur- 
nish a  copy  of  the  bond  to  labor  and  material-men,  would  deprive  the 
Secretary  of  authority  to  surrender  the  bond.  C.  781^9,  Mar.  16, 1900. 
But  there  is  no  objection  to  returning  a  bond  that  the  United  States 
refused  to  accept.  C.  7313,  Nov.  18,  1899.  Held,  also,  that  in  the  ab- 
sence of  a  statute  no  executive  officer  had  authority  to  cancel  or  nullify 
a  bond  or  release  a  surety  thereon.*  C.  1999,  Jan.  22, 1896;  8553,  July 
5,1900;  5352,  Aug.  22,  1900;  131^5,  Jan.  7,  1903;  22194,  Nov.  18, 
1 907 .  Such  release  can  not  be  given  even  if  other  sureties  of  undoubted 
financial  responsibihty  should  be  ^iven.     C.  5352,  Sept.  28,  1900. 

I  Q.  There  being  no  law  requiring  bonds  under  the  War  Depart- 
ment to  be  joint  and  several,  a  bond  so  worded  that  each  surety  is 
bound  as  to  a  specific  part  only  of  the  penalty  and  is  not  bound 
jointly  and  severally  with  the  principal  or  with  another  surety  is 
legally  sufficient.^     C.  23165,  Apr.  30,  1908. 

I  R.  The  implied  authority  of  a  partner  to  execute  contracts  for 
the  firm  of  which  he  is  a  member  does  not  extend  to  contracts  under 
seal — bonds,  for  instance.  Therefore,  where  a  partner  signs  a  bond 
for  the  firm  there  should  be  filed  with  it  evidence  of  an  express 
authority  from  the  other  partners  to  sign  for  them.^  O.  5066,  Sept. 
28,  1898;  6902,  Aug.  19,  1899;  7348,  Oct.  30  and  Nov.  28,  1899; 
15894,  Feb.  12,  1904;  21219,  Mar.  12,  1907;  23734,  Aug.  18,  1908; 
20947,  May  10,  1909.  Such  express  authority  need  not  be  under 
seal.  ^  C.  7348,  Nov.  28,^  1899;  23734,  Aug.  18,  1908.  The  above 
principle  has  been  applied  where  the  names  of  all  partners  were 
signed  to  a  bond  but  all  the  names  were  in  the  same  handwriting, 

^  7  Op.  Atty.  Gen.,  62. 

^  See,  however,  par.  576,  A.  E,.,  1910,  which  requires  the  oflicial  bonds  of  disbnrsing 
officers  to  be  joint  and  several. 

^  In  20  Op.  Atty.  Gen.,  312,  it  was  held:  "The  rule  that  one  partner  has  no  implied 
authority  to  bind  his  copartners  l)y  executing  a  bond  in  the  firm  name  is  well  estab- 
lished. It  can  not  be  said,  however,  that  the  partners  constituting  a  firm  are  power- 
less to  authorize  one  of  their  number,  or  another  proper  person,  to  bind  the  partner 
ship  by  executing  a  bond  to  be  used  in  the  transaction  of  its  business.  The  inlii- 
bition  of  the  common-law  nde  referred  to  is  against  an  implied  power  in  one  partner 
to  execute  the  instrument  without  specific  authority." 


198  BONDS  I  S. 

which  suggested  that  one  had  signed  for  all.  C.  5031,  Sept  21,  1898. 
However,  if  the  instrument,  although  sealed  in  fact,  is  of  a  character  that 
does  not  require  a  seal,  the  presence  of  the  seal  may  be  disregarded  and 
the  instrument  treated  as  a  simple  contract.     C.  20989  B,  July  31,1911. 

Where  a  contract  is  made  with  a  partnership  there  is  no  legal 
objection  to  accepting  as  a  bond  for  the  performance  of  the  con- 
tract one  signed  by  less  than  all  of  the  partners,  as  principals,  the 
partners  who  do  sign  to  sign  as  individuals,  not  as  partners,  and  the 
partnership  name  not  to  be  signed.     G.  6902,  Aug.  19,  1899. 

I  S.  A  resolution  of  a  board  of  directors  which  purports  to  vest 
the  treasurer  with  *^  power  to  make  and  sign  on  behalf  of  the  com- 
pany all  contracts  that  may  be  necessary  to  carry  on  the  business  of 
the  company"  is  prospective  only  and  does  not  ratify  the  execution 
of  a  bond  already  made.     C.  20319,  Sept.  1,  1906. 

I  T.  Where  a  contractor  gave  a  bond  guaranteeing,  among  other 
things,  to  replace  or  repair  all  defects  in  cables  which  might  develop 
in  five  years,  and  in  case  of  failure  to  do  so  promptly  to  pay  the 
Government  on  demand  the  cost  of  such  repairs,  and  most  of  the 
work  having  been  performed,  the  bond  of  $37,500  was  considered 
unnecessarily  large  for  the  Government's  protection;  held  that  if  a 
new  bond  in  the  penal  sum  of  $5,000  were  accepted,  with  recitals 
that  the  penalty  of  the  existing  bond  is  unnecessarily  large  and  that 
the  new  bond  is  intended  as  a  substitute  for  the  present  bond  and  is 
given  to  relieve  the  principal  from  the  p)ayment  of  premiums  thereon, 
these  recitals,  together  with  the  cessation  of  payments  of  premiums 
under  the  old  bond,  would  make  the  loss  fall  entirely  on  the  sureties 
under  the  new  bond  to  the  extent  of  the  penalty  of  the  same.  Of 
course,  the  United  States  might  sue  under  the  old  bond,  but  any  loss 
recovered  thereunder  would  be  recoverable  by  the  sureties  on  the 
old  bond  from  the  sureties  on  the  new  bond.  C.  22194,  Nov.  18, 
1907.  Also,  where  a  contractor  desired  to  substitute  personal 
bondsmen  in  lieu  of  the  corporate  bond  then  in  force  in  order  to  avoid 
the  payment  of  another  annual  premium  to  the  surety  company; 
field  there  was  no  legal  objection  to  the  contractors  presenting  a 
further  bond  signed  by  personal  sureties,  but  the  effect  would  not 
be  to  release  the  old  bond  unless  there  was  some  special  provision 
in  the  old  bond  which  allowed  it  to  be  discontinued.  Ordinarily  the 
old  bond  would  remain  in  full  force  as  to  all  defaults  of  the  contractor 
committed  up  to  the  date  of  the  new  bond,  and  thereafter  the  lia- 
bility of  the  two  bonds  would  be  joint. 

II  A.  Although  there  may  be  no  express  statutory  provision 
requiring  a  disbursing  officer  to  give  a  bond,^  the  Government  may 
req^uire  such  officer  to  give  one,  and  where  public  property  is  intrusted 
to  mdividuals,  there  being  no  law  requiring  a  bond,  the  Secretary  of 
War  may  properly  require  a  bond.^    P.  51,  4^6,  Jan.  28, 1892. 

*  The  form  of  official  bond  authorized,  Dec.  31,  1900,  secures  the  fidelity  of  the 
officer  from  the  date  of  approval  of  the  bond.  C.  9482,  Dec.  28,  1900.  This  change 
enables  accounting  officers  to  definitely  fix  the  responsibility  under  each  bond,  so  as 
to  prevent  bonds  from  overlapping.  (J.  9482,  Dec.  28,  1900;  Feb.  18,  1902.  In  prac- 
tice the  date  of  approval  is,  for  the  convenience  of  accounting  officers,  on  the  first 
day  of  a  month,  in  all  cases  except  where  the  bond  is  the  first  one  given.  Sec.  1191, 
R.  S.,  requires  all  officers  of  the  Quartermaster's,  Subsistence,  and  Pay  Departments 
to  give  a  bond,  but  it  does  not  refer  to  other  disbursing  officers. 

2  See  U.  S.  V.  Tingey,  5  Pet.,  116;  Jessup  v.  U.  S.,  lOG  U.  S.,  147;  Moses  v.  U.  S., 
166  U.  S.,  587;  U.  S.  v.  Rogers,  28  Fed.  Rep.,  607;  32  id.,  890;  6  Op.  Atty.  Gen.,  24, 
and  note  to  "Bonds"  I  A. 


BONDS  II  B.  199 

II  B.  Where  a  bond  had  been  given  by  a  commissary  ofRcer  con- 
ditioned to  become  void  if  he  shoiilcl  during  his  holding  and  remaining 
in  the  ofHce  of  commissary  of  subsistence  with  the  rank  of  major, 
carefully  discharge  the  duties  of  said  office,  and  a  new  bond  was  given 
with  the  same  conditions,  TiM,  the  giving  of  the  new  bond  would  be 
cumulative,  and  would  operate  to  make  the  sureties  on  both  the  old 
and  new  bonds  responsible  as  to  future  transactions,  but  would  not 
release  the  sureties  on  the  old  bond.^     C.  667,  Nov.  ^,  1894;  20591, 

'  See  Disrest  Dec.  Second  Comp.,  vol.  3,  sec.  1356;  II  Dec.  First  Comp.,  337.  In 
V  Comp..  918,  it  was  held  that  where,  under  the  act  of  Mar.  2,  1895  (28  Stat.,  807), 
which  pro\'ide3  that  ''every  officer  whose  duty  it  is  to  take  and  approve  official  bonds 
shall  cause  all  such  bonds  to  be  renewed  every  four  years  after  their  dates,"  an  officer 
renews  his  bond  by  giving  a  bond  diu-ing  the  same  term  of  office,  the  new  bond  does 
not  operate  to  release  the  sureties  on  the  first  bond  from  liability  for  future  transac- 
tions, but  the  sureties  on  the  old  and  new  bonds  would  be  jointly  and  severally  liable 
therefor.  As  appears  below  in  order  to  overcome  the  embarrassing  effect  of  the  above 
rule,  the  form  of  official  bond  was  changed  on  Dec.  14, 1895,  so  that  the  condition  would 
be  that  the  officer  should  be  bound  under  the  bond  "until  a  new  official  bond  in  his 
case  shall  be  approved."  Under  this  form  of  bond  it  was  intended  that  the  old  bond, 
after  the  approval  of  a  new  one,  should  remain  in  force  simply  to  cover  any  defaults 
that  might  nave  occurred  prior  to  the  date  of  approval  of  the  new  bond.  C.  21784, 
July  10,  1907;  2S656,  July  27,  190S.  On  Oct.  17,  1906,  in  26  Op.  Atty.  Gen.  70,  the 
Attorney  General,  however,  gave  the  opinion  that  a  provision  in  an  official  bond  short- 
ening the  life  of  the  bond  from  the  entire  period  during  which  the  office  is  held  until 
such  time  as  "a  new  official  bond  shall  be  accepted  by  the  proper  authority  and  sub- 
stituted "  therefor,  ran  counter  to  the  statute  and  would  be  without  effect,  but  that 
in  other  particulars  the  bond  would  be  good.  As  to  this  opinion  of  the  Attorney 
General,  the  Judge  Advocate  General  of  the  Army  stated  that  the  opinion  "is  under- 
stood to  apply  to  a  case  where  the  form  of  bond  is  prescribed  by  statute  and  the  officer 
is  appointed  for  a  limited  term.  Such  is  not  the  case  with  army  officers.  They  are 
appointed  for  an  indefinite  tenure,  practically  during  good  behavior  and  until  pro- 
moted, and  the  statute  (sec.  1191,  R.  S.),  provides  simply  that  they  shall,  before 
upon  the  duties  of  their  respective  offices,  give  good  and  sufficient  bonds  to 


the  United  States,  in  such  sums  as  the  Secretary  of  War  may  direct.  The  statute  is 
understood,  and  has  been  construed  as  imposing  on  the  Secretary  of  War  the  duty  of 
approving  the  bond  both  as  to  form  and  amount."  C.  20591,  Jan.  26,  1907.  Official 
bonds  under  the  War  Department  are  still  conditioned  that  the  officer  shall  continue 
to  be  bound  "until  a  new  official  bond  in  his  case  is  approved." 

The  recent  history  of  the  form  of  disbursing  officers'  bonds  is  as  follows:  The  form 
of  official  bond  authorized  by  the  Secretary  of  War,  Dec.  14,  1895,  was  conditioned 
that  the  officer  should  at  all  times  "henceforth  during  his  holding  and  remaining  in 
said  office,  until  a  new  official  bond  in  his  case  shall  be  approved  by  the  Secretary  of  War, 
carefully,"  etc.  C.  1769;  the  form  authorized  Dec.  31,  1900,  was  conditioned  that 
if  the  officer  "shall  and  do  at  all  times  during  his  holding  and  remaining  in  said  office, 
from  and  including  the  date  of  approval  of  this  bond  by  the  Secretary  of  War  thenceforth 
until  the  date  of  approval  by  the  Secretary  of  War  of  a  new  official  bond  in  his  case,  care- 
fully," etc.  C.  9482,  Dec.  28, 1900.  The  form  authorized  Mar.  13,  1902,  amended  the 
preceding  form  by  substituting  the  words  "proper  authority"  for  "Secretary  of  War," 
the  purpose  being_  to  include  approval  by  the  Assistant  Secretary  of  War,  who,  pur- 
suant to  the  distribution  of  business  in  the  Secretary's  office,  now  passes  upon  and 
approves  official  bonds.  C.  9482,  Mar.  6, 1902.  In  1907,  the  Secretary  of  War  author- 
ized the  commanding  general,  Philippines  Division,  to  approve  bonds  of  paymasters. 
C.  22296,  Oct.  29, 1907.  In  such  case  the  action  of  the  Secretary  of  War  if  he  approves, 
is  expressed  in  the  following  language :  '  'Approval  by  division  commander  confirmed . ' ' 
C.  4216,  Mar.  6,  1908.  In  April,  1901,  the  War  Department  adopted  also  a  form  of 
bond,  the  condition  of  which  is  so  worded  that  it  covers  a  recess  appointment  and  con- 
tinues to  secure  the  fidelity  of  the  officer  after  his  appointment  and  confirmation  by 
the  Senate  "until  a  new  official  bond  in  his  case  shall  be  approved  by  proper  author- 
ity." In  the  absence  of  such  a  provision,  as  held  by  the  United  States  Supreme  Court 
in  U.  S.  V.  Kirkpatrick,  9  Wheaton,  720,  a  bond  given  under  a  recess  appointment  for 
the  fidelity  of  the  officer  would  not  cover  his  fidelity  after  his  confirmation  by  the 
Senate,  the  offices  being  legally  different  offices  having  different  terms  of  tenure,  etc. 
C.  3689,  Nov.  29,  1897,  and  Jan.  10, 1906;  9482,  Feb.  18,  1902;  20591,  Jan.  26,  1907. 


200  BONDS   II   C. 

Jan.  26y  1907.  So  lield,  also,  where  an  ordnance  storekeeper  gave  a 
new  bond  intending  to  release  the  surety  on  a  former  bond.  C.  67 J^, 
Nov.  24,  1894.     So  held,  as  to  a  paymaster.     C.  733,  Dec.  11,  1894. 

II  C.  Where  the  Army  Regulations^  (par.  990,  A.  R.,  1863)  pro- 
vided that  the  sureties  on  the  bonds  of  certain  disbursing  officers 
should  be  bound  jointly  and  severally  for  the  whole  amount  of  the 
bond,  and  should  satisfy  the  Secretary  of  War  that  they  were  worth 
jointly  double  the  amount  of  the  bond,  by  the  affidavit  of  each  surety 
that  he  is  worth  that  sum  over  and  above  his  debts  and  Habilities, 
Jield,  that  although  this  regulation  appears  to  contemplate  that  there 
shall  be  two  or  more  sureties  on  the  bond,  the  regulation  is  not 
mandatory  and  such  a  bond  with  one  surety  who  justified  in  double 
the  amount  of  the  bond  may  be  accepted.  R.  41,  169,  Apr.  2,  1878. 
And  where  the  sureties  on  such  a  bond  made  a  joint  affidavit  that 
they  were  jointly  worth  double  the  amount  of  the  bond  over  and 
above  their  debts  and  liabilities,  Tield,  the  justification  did  not  com- 
ply with  the  regulation  as  the  affidavit  might  be  true  and  yet  one  of 
the  sureties  be  worth  nothing.  R.  S3,  272,  Aug.  23,  1872.  But  lieU 
■further  that  where  the  aggregate  of  the  amounts  in  which  the  sureties 
on  such  a  bond  justify  equms  or  exceeds  double  the  amount  of  the 
bond,  the  objection  that  one  or  more  of  them  individually  justified  in 
less  than  that  sum  may  be  and  is  in  practice  frequently  waived. 
C.  373,  Sept.  24,  1894  and  Dec.  21,  1898;  2212,  Apr.  15,  1896;  3261, 
June  5,  1897,  Jan.  8,  1898  and  Mar.  31,  1904.^  Held,  further,  that 
each  of  the  sureties  on  such  a  bond  should  sign  his  own  separate 
affidavit,  an  affidavit  signed  only  by  the  official  administering  the 
oath  is  irregular,  but  the  irregularity  may  be  waived.  R.  34,  14'^, 
Feb.  27,  1873,  271,  May  19,  1873,  and  337,  June  28,  1873.  So,  also, 
where  a  disbursing  officer  having  given  a  bond  in  the  sum  of  $12,000, 
one  of  the  sureties  deceased,  and  a  new  bond  was  offered  with  only 
one  suretv  in  the  sum  of  $6,000.  Held,  that  the  new  surety  would  not 
be  bound  either  jointly  or  severally  with  the  surviving  surety  for 
the  whole  amount  required,  and,  therefore,  the  bond  was  not  legally 
sufficient.     P.  62,  351,  Nov.  18,  1893. 

II  D.  The  obligation  of  each  surety  on  a  bond  given  by  a  dis- 
bursing officer  must  be  for  the  whole  amount  of  the  penalty;  the 
regulation  2  requiring  that  the  sureties  shall  be  jointly  and  severally 
bound  for  the  whole  amount  of  the  bond.  So,  where  the  penalty  in 
a  quartermaster's  joint  and  several  official  bond  was  $10,000,  and  the 
sureties,  in  executmg  the  same,  assumed  to  be  bound  only  in  the  sum 
of  $5,000  each,  the  words  *'for  five  thousand  dollars"  being  written 
under  each  signature — held,  that  the  instrument  was  contradictoiy, 
did  not  conform  to  the  regulations,  and  should  not  be  accepted.^ 
R.  26,  327,  Dec.  29,  1867.  And  similarly  held  in  a  case  of  a  bond  of  a 
disbursing  officer  with  a  penalty  of  $40,000,  where  the  sureties  wrote 

^  Par.  576,  A.  R.,  1910,  is  to  the  same  effect.  The  only  statute  on  the  subject  is 
sec.  1191,  R.  S,,  which  requires  that  all  officers  of  the  Quartermaster's  Department, 
Subsistence  Department,  and  Pay  Department  shall,  before  entering  upon  the  duties 
of  their  offices,  give  bond  in  such  sum  as  the  Secretary  of  War  may  direct,  faithfully 
to  account  for  all  public  moneys  and  property  which  they  may  receive. 

2  Par.  576,  A.  R.,  1910,  is  to  the  same  effect. 

^  In  a  contractor's  bond,  however,  where  the  sureties  are  two  or  more  surety  com- 
panies, a  form  has  been  authorized  whereby  each  surety  is  bound  jointly  and  severally 
with  the  principal  for  a  part  only  of  the  penalty. 


BONDS  II  E.  201 

opposite  their  signatures,  respectively,  ''for  $35,000,"  "for  $5,000." 
R.34,  183,  Mar.  20,  1873;  C.  1974,  Jon.  8,  1896;  2895,  Jan.  27, 1897. 

II  E.  The  official  bond  of  a  disbursing  officer  bein^  in  terms 
Hmited  to  the  office  he  held  at  the  time  he  gave  it,  becomes  moperative 
upon  the  promotion  of  such  officer  to  a  higher  grade.  He  then  enters 
upon  a  new  office  and  a  new  bond  is  required.  The  old  bond  remains, 
however,  a  valid  obligation  to  cover  any  defaults  which  may  subse- 
quently be  found  to  have  occurred  between  the  dates  of  its  execution 
and  the  date  of  the  officer's  promotion.  C.  1999,  Jan.  22, 1896;  9^82, 
Dec,  21,  1900.  So,  also,  a  disbursing  officer's  bond  terminates  as  to 
future  acts  on  the  officer  ceasing  to  hold  the  office,  by  resignation  or 
otherwise,  or,  if  the  bond  is  conditioned  that  it  shall  be  in  force 
''until  a  new  official  bond  in  his  case  is  approved,"  it  will  so  terminate 
by  the  approval  of  a  new  bond,  even  though  the  officer  continues  to 
hold  the  same  office.     C.  9482,  Dec.  21,  1900. 

II  F.  Where  a  disbursing  officer  has  given  a  bond  to  continue  in 
force  while  he  holds  his  office  until  a  new  official  bond  shall  be 
approved  by  the  Secretary  of  War  the  bond  continues  in  force  until 
a  new  official  bond  shall  be  approved  by  the  Secretary  of  War  in 
Ueu  of  it,  notwithstanding  that  the  officer  may  be  performing  duties 
that  do  not  call  upon  him  to  disburse  the  money  covered  by  the 
bond,  as,  for  instance,  in  case  of  a  commissary  officer  detailed  on  the 
General  Staff  (C.  4396,  Feb.  19,  1904);  or  a  quartermaster  acting  as 
treasurer  of  the  island  of  Cuba  (C.  4156,  May  19,  1899);  or  a  com- 
missary officer  as  colonel  of  a  volunteer  regiment  (C.  6250,  Nov.  7, 
1900),  and  the  bond  will  continue  in  force  to  cover  the  officer's 
fidelity  after  he  shall  have  been  reUeved  from  his  nondisbursing 
duties  and  returned  to  his  ordinary  duties  as  a  disbursing  officer. 
C.  4156,  May  19,  1899.  However,  where  the  surety  is  a  companj 
that  charges  a  premium  for  performing  the  services  of  a  surety  it 
would  be  proper  for  the  disbursing  officer  to  stipulate  with  the  surety 
that  no  premiums  shall  be  paid  during  any  period  that  he  is  on  duty 
which  involves  no  disbursement  of  public  money.  Such  an  agree- 
ment, however,  would  not  affect  the  liability  of  the  surety  to  the 
Government.     C.  4396,  Feb.  19,  1904;^  27191,  July  26,1911. 

II  G.  A  disbursing  officer  (a  commissary  officer)  while  under  bond 
which  provided  that  the  officer  should  carefully  discharge  his  duties 
"during  his  holding  and  remaining  in  office  until  a  new  official  bond 
in  his  case  shall  be  approved  by  the  Secretary  of  War,"  was  promoted 
during  a  recess  of  the  Senate,  received  letters  of  appointment,  accepted 
and  qualified  thereunder,  lield  that  the  word  "office"  in  the  bond 
meant  the  office  named  in  the  bond;  that  by  accepting  his  appoint- 
ment to  a  higher  grade  and  qualifying  under  the  appointment  he 
ceased  to  hold  the  former  office  named  in  the  bond  and  became 
invested  with  the  new  office,  the  term  of  which  new  office  was  limited 
to  the  end  of  the  next  session  of  the  Senate,  and  therefore  that  under 
section  1191,  R.  S.,  and  571  A.  R.  (575  of  lylO),  a  new  bond  should 
be  given  to  cover  the  new  office,  and  lield,  also,  that  after  confirmation 
by  the  Senate  and  the  commissioning  thereunder  the  office  would  be 
different  from  the  one  held  during  the  recess  of  the  Senate  and  a 
new  bond  would  again  be  necessary.^     C.  3689,  Nov.  29,  1897.     So, 

»  United  States  v.  Kirkpatrick,  9  Wheat.,  720;  2  Op.  Atty.  Gen.,  330  and  500;  4  id., 
30.  But  see  note  to  Bonds  II  B  for  a  new  form  or  bond  in  case  of  recess  appoint- 
ments, the  condition  of  which  covers  both  offices  until  the  approval  of  a  new  bond. 


202  BONDS  II  H. 

under  a  similarly  worded  bond,  lield  that  the  office  of  captain  and 
assistant  quartermaster,  United  States  Volunteers,  is  different  from 
that  of  major  of  the  Forty- third  Infantry,  United  States  Volunteers. 
C.  7091,  Sept.  27,  1899. 

II  H.  Under  the  act  of  February  2,  1901  (31  Stat.,  751),  changing 
the  name  of  the  office  of  ''captain  and  assistant  quartermaster"  to 
''quartermaster,'^  Tield  that  existing  commissions  and  official  bonds 
remained  in  force.     C,  10180,  Apr.  10,  1901. 

II  I.  An  officer  of  the  subsistence  department  (regular  establish- 
ment) was  appointed  chief  commissary  with  rank  of  lieutenant  colonel 
in  the  Volunteer  Army  and  gave  the  prescribed  bond.  Wliile  serving 
in  the  latter  capacity  he  was  promoted  in  the  subsistence  department 
of  the  regular  establishment.  Held,  that  it  was  not  necessary  to 
require  of  him  a  bond  on  account  of  such  promotion  until  it  was 
proposed  to  place  him  on  duty  in  the  office  resulting  therefrom.  C. 
4341,  July  IS,  1898. 

II  J.  Wliere  an  officer  of  the  line  was  appointed  captain  and  com- 
missary of  subsistence  during  a  recess  of  the  Senate,  lield  that  in 
view  of  the  provisions  of  section  1191,  R.  S.,  and  A.  R.  571  (575  of 
1910),  he  should  furnish  the  bond  required  before  entering  upon  his 
duties  under  such  appointment  whether  or  not  he  had  yet  resigned 
his  line  commission.     C.  2775,  Nov.  80,  1896. 

II  K.  There  is  no  statute  or  regulation  prohibiting  an  officer  of 
the  Army  from  acting  as  a  surety  on  the  official  bond  of  another 
officer.  Such  a  relation,  however,  is  not  one  to  be  favored.  R.  34, 
164,  Mar.  10,  1873;  38,  669,  July  3,  1877. 

II  L.  Section  1191,  R.  S.,  provides  that  all  officers  of  the  Quarter- 
master's, Subsistence,  and  Pay  Departments  shall,  before  entering 
upon  the  duties  of  their  respective  offices,  give  good  and  sufficient 
bonds  to  the  United  States,  in  such  sum  as  the  Secretary  of  War  may 
direct,  faithfully  to  account  for  all  pubUc  moneys  and  property 
which  they  may  receive.  The  Secretary  has  made  a  number  of  regu- 
lations in  furtherance  of  this  section,  and  among  them  a  regulation 
requiring  bonds  to  be  approved  by  the  Secretary  of  War.  Held,  that 
the  duty  of  approval  not  being  prescribed  by  law  may  be  properly 
delegated  to  the  commanding  general,  Philippines  division.  C.  22296, 
Oct.  29,  1906.  Held,  further,  that  as  the  above  section  does  not 
prescribe  the  form  of  bond,  an  indemnity  bond  signed  only  by  a 
surety  company  and  not  signed  by  the  officer  as  principal  is  a  suf- 
ficient official  bond  under  the  statute.^     C.  10277,  Apr.  17,  1909. 

II  M.  Where  a  bond  recited  that  the  principal  "has  been  ap- 
pointed assistant  quartermaster  in  the  Army  of  the  United  States," 
and  the  fact  was  he  had  been  appointed  an  assistant  quartermaster 
in  the  Volunteer  Army,  lield,  that  the  recital  was  not  inconsistent  with 
the  fact,  and  that  the  actual  office  held  could  be  shown  by  parol  and 
the  bond  was  valid.  C.  8080,  May  24,  1900.  So  held  where  the  bond 
of  an  officer  "detailed"  as  quartermaster  from  the  line  recited  that 
he  had  been  "appointed"  as  quartermaster.^  C.  22292,  Oct.  30,  1907. 
So,  where  a  bond  recited  that  the  principal  had  been  appointed 
general  treasurer  National  Home  for  Disabled  Volunteer  Soldiers 
"in  the  Army  of  the  United  States,"  the  quoted  words  being  incorrect, 
Tield,  tlie  office  was  sufficiently  described  by  other  words  of  description 
and  the  erroneous  words  should  be  disregarded.     C.  1 1337,  Oct.  4, 1901 . 

^  See  "Bonds"  IV,  where  a  similar  opinion  was  given  under  sec.  1225,  R.  S. 


BONDS  II  N.  203 

II  N.  Paragraph  583,  A.  R.  (589  of  1910),  provides  that:  ''In  case 
of  financial  embarrassment,  failure,  or  other  disquahfying  cause  on 
the  part  of  the  surety  to  a  bond,  the  Secretary  of  War  will  require  the 
bond  to  be  renewed  to  his  satisfaction,  upon  notification  to  the 
principal.  Official  bonds  may  not  be  renewed  at  the  will  of  the 
principal  or  surety,  but  only  by  direction  of  the  Secretary,  and  the 
substitution  of  one  corporate  company  for  another  as  surety  on  a 
bond  will  not  be  permitted  except  by  direction  of  the  Secretary,  or 
after  the  bond  has  run  for  a  period  of  four  years,  when  a  renewal 
thereof  is^  required  by  law."  A  disbursing  officer  was  bonded  in  a 
surety  company,  and  was  offered  a"  lower  rate  by  another  company, 
but  after  correspondence  between  the  old  company  and  the  new 
company  the  new  company  withdrew  its  low  offer;  the  old  company, 
however,  offered  to  reduce  its  rate  to  that  offered  by  any  other 
company.  The  result  was  the  disbursing  officer  became  dissatisfied 
with  the  old  company  and  asked  to  have  his  bond  renewed  in  any 
company  but  the  old  one.  Advised,  that  under  the  above  regulations 
the  reason  was  not  sufficient  to  justify  the  submission  of  a  new  bond, 
involving  as  it  would  the  trouble  and  expense  of  examining  and 
approving  a  new  bond  and  closing  the  accounts  under  one  bond  and 
opening  them  under  another.     C.  25462,  Aug.  8,  1910. 

II  O.  A  bond  given  to  secure  the  faithful  disbursement  of  funds 
relating  to  the  military  government  of  Cuba  should  not  be  ffied  in  the 
Treasury  Department  as  in  the  case  of  officers  charged  with  the  dis- 
bursement of  public  money  of  the  United  States  but  should  be  filed  in 
the  Insular  Bureau.     C.  10551,  Sept.  6,  1905. 

II  P.  Where  a  bond  was  ^ven  by  the  treasurer  of  the  Military 
Academy  to  cover  funds  coming  into  his  possession  which  were  not 
strictly  pubhc  funds,  lield  that  the  bond  should  run  to  the  superin- 
tendent of  the  ^lilitary  Academy  in  trust  for  the  cadets  of  the  academy 
and  should  be  filed  either  at  the  headquarters  of  the  Military  Academy 
or  in  the  office  of  The  Adjutant  General  of  the  Army,  through  which 
the  Military  Academy  and  its  affairs  are  administered.  0.  2644^, 
Apr.  19, 1910,  and  Apr.  29, 1910. 

II  Q.  The  act  of  March  2,  1895  (28  Stat.  807),  provides  that: 
''Hereafter  every  officer  required  by  law  to  take  and  approve  official 
bonds  shall  cause  the  same  to  be  examined  at  least  once  in  every  two 
years  for  the  purpose  of  ascertaining  the  sufficiency  of  the  sureties 
thereon;^  and  every  officer  having  power  to  fix  the  amount  of  an 
official  bond  shall  examine  it  to  ascertain  the  sufficiency  of  the  amount 
thereof  and  approve  or  fix  said  amount  at  least  once  in  two  years  and 
as  much  oftener  as  he  may  deem  it  necessary."  Held,  that  the  first 
half  of  the  above  provision  relating  to  the  sufficiency  of  the  "sureties'^ 
is  sufficiently  complied  with  as  to  bonds  on  which  a  corporation  is 

^  The  provision  of  the  first  half  of  the  act  of  March  2,  1895,  requiring  the  officer  to 
cause  the  bonds  to  be  examined  as  to  the  sufficiency  of  the  sureties  is  supplemented  by 
G.  O.  29,  A.  G.  O.,  May  1, 1895,  which  requires  the  necessary  examination  to  be  made 
by  "the  heads  of  bureaus  or  departments  of  the  War  Department  under  whom  or  in 
whose  department  there  are  bonded  officers  whose  bonds  are  taken  and  approved  by 
the  Secretary  of  War, ' '  and  prescribes  the  form  of  certificate  to  be  obtained  as  to  the 
sufficiency  of  sureties.  The  order  makes  this  certificate  when  properly  filled  out  and 
signed  the  evidence  of  the  present  sufficiency  of  the  bond.  The  certificate  should  not 
be  referred  to  the  Secretary  of  War  but  should  be  acted  on  by  the  head  of  the  bureau 
by  approval  or  by  requiring  a  new  bond  as  provided  in  the  order,  the  bond  in  the  latter 
event  to  be  submitted  to  the  Secretary  for  approval.     C.  UUt  June  3,  1895. 


204  BONDS   II  R. 

surety,  if  the  corporation  files  periodically  in  the  War  Department  the 
financial  statement  required  by  paragraph  574,  Army  Regulations 
(585  of  1910),  and  that  General  Order  29,  Adjutant  General's  Office, 
May  1,  1895,  has  no  application  to  a  bond  on  which  a  corporation  is 
a  surety.  C.  2516,  Aug.  12,1896.  Held,  that  the  second  half  of  the 
above  provision  relating  to  the  sufficiency  of  the  "amounf'  of  the  bond 
is  sufficiently  complied  with  if  the  chief  of  each  bureau  or  department 
having  bonded  officers  reports  to  the  Secretary  of  War  twice  a  year  a 
list  of  all  the  bonds  of  offic'Crs  serving  under  him  which  at  the  time  of 
making  the  report  shall  have  been  in  existence  as  much  as  18  months, 
giving  the  names  of  the  officers  and  the  amounts  of  their  respective 
bonds,  and  the  greatest  amounts  of  money  liable  to  be  handled  by 
them  respectively  at  one  time  during  the  succeeding  two  and  a  half 
years,  ancl  also  recommending  the  action  to  be  taken  by  the  Secretary 
of  War  with  respect  to  the  amount  of  the  bond  of  each  officer,  that  is, 
whether  its  present  amount  should  be  ''approved"  or  whether  a  new 
amount,  should  be  ''fixed,"  owing  to  the  circumstances  of  that 
officer's  duty,  etc.,  and  if  a  new  bond  is  to  be  fixed,  what  it  should  be; 
and  for  the  Secretary  of  War  to  act  on  the  recommendation  made  by 
the  chief  of  bureau.  Thereupon  the  statement  and  certificate  pro- 
vided for  in  General  Order  29,  Adjutant  General's  Office,  May  1, 
1895,  would  need  to  be  sent  to  those  officers  the  amount  of  whose  bond 
had  been  ''approved."  ^  C.  I414,  June  3, 1895.  Held,  further,  that 
where  an.  inspector  has  investigated  the  matter  of  sufficiency  of  the 
amount  of  the  bond  and  recommended  approval  of  the  amount  of  the 
existing  bond,  an  approval  of  the  recommendation  constitutes  a  com- 
pliance with  the  second  part  of  the  act.     C.  418,  Dec.  1,  1896. 

II  R.  Where  a  bond  for  the  safe-keeping  of  pubUc  property  was 
conditioned  that  the  obligor  should  "carefully  discharge  the  duties 
of  his  office  or  employment"  and  a  subordinate  of  the  obligor,  whom 
the  obligor  was  not  empowered  to  select  or  discharge,  received  per- 
sonal physical  custody  of  certain  property,  which  possession  was  not 
shared  with  the  obligor,  held  that  the  obligor  was  required  only  to 
discharge  carefully  his  own  duties,  including  the  important  duty  of 
supervision,  and  that  if  he  did  this  fully  and  completely  he  would 
not  be  liable  for  a  loss  resulting  from  the  neglect  or  misconduct  of  his 
subordinate.  0.  8102,  Apr.  19,  1911.  And  where  under  the  same 
facts  as  above  set  out  a  bond  was  further  conditioned  that  the 
obligor  should  faithfully  and  honestly  account  for  all  public  property 
which  might  be  intrusted  to  "his  care  or  custody,"  held  that  the 
obligor  would  not  be  liable  for  the  loss  of  property  which  did  not 
come  into  his  j)ersonal  physical  possession.     C.  3102,  Apr.  19,  1911. 

III  A.  The  giving  of  bonds  to  secure  the  performance  of  contracts 
made  for  furnishing  supplies,  doing  work,  etc.,  for  the  War  Depart-  ". 
ment  is  not  required  by  statute,^  but  is  a  subject  of  administrative  ' 

^  The  above  procedure  is  still  followed  in  the  War  Department. 

2  The  act  of  Aug.  13,  1894  (28  Stat.  278),  as  amended  by  the  act  of  Feb.  24,  1905 
(33  Stat.  811),  directs  that  bonds  shall  be  required  with  formal  contracts  for  the 
construction  of,  or  repairs  upon,  public  buildings  and  public  works,  and  that  such 
bonds  shall  contain  a  provision  that  "the  contractor  or  contractors  shall  promptly 
make  payments  to  all  persons  supplying  him  or  tliem  labor  and  materials  in  the 
prosecution  of  the  work  provided  for  in  such  contract."  The  statute  does  not  pre- 
scribe the  amount  of  the  penalty,  but  this  has  been  fixed  by  the  Secretary  of  War 
in  par.  577,  A.  R.,  1910. 

II 


BONDS   III   B.  205 

regulation.^  So,  where  the  amount  involved  in  a  contract  for  com- 
missary stores  was  small,  advised  that  the  Commissary  General  be 
authorized  to  approve  the  contract  without  a  bond.-  P.  16,  167, 
Apr.  9,  1887.  So,  advised  that  the  Secretary  of  War  was  empowered 
to  dispense  with  bonds  to  secure  the  performance  of  contracts  for 
furnishing  meals  to  recruiting  parties  and  recruits;  he  being  indeed 
authorized  to  dispense  at  discretion  with  all  contractor's  bonds, 
where  such  are  not  specifically  jequired  by  statute.  P.  65,  233, 
June  12,  1894;  C.  2074,  Mar.  5,  1896. 

Ill  B.  TOiere  a  bond  is  required  for  the  due  performance  of  a 
contract,  lield  that  in  the  absence  of  a  statute  or  regulation  to  the 
contrary,  the  approval  of  the  contract  includes  the  acceptance  of 
the  bond,  and  that  an  additional  written  approval  or  acceptance 
of  the  bond  is  not  necessary.     C.  22961,  Mar.  24,  1908. 

Ill  C.  There  is  no  legal  authority,  after  a  contract  has  been  com- 
pleted, for  assigning  the  bond  to  creditors  of  the  contractor  (whom 
he  owes  for  materials  furnished  him)  to  enable  them  to  sue  him  upon 
it  in  the  name  of  the  United  States.^    P.  61,  16,  Aug.  1,  1893. 

Ill  D.  Where  a  contract  has  been  partly  performed,  and,  by 
reason  of  the  surety  on  a  contractor's  bond  being  no  longer  considered 
sufficient  security  a  new  bond  has  been  required,  the  penalty  may  be 
proportionately  reduced  by  reason  of  the  partial  completion  of  the 
contract  and  by  reason  of  the  amount  of  the  retained  percentages 
held  by  the  Government.    77. 23265,  Feh.  16, 1909;  27937,  Mar.  3,1911. 

Ill  E.  Paragraph  571,  Army  Regulations,  1908  (577  of  1910),  pro- 
vided that  the  amount  of  penalty  in  a  contractor's  bond  will  not  be  less 
than  one-tenth  nor  more  than  the  full  amount  of  the  consideration  of 
the  contract.  Where  the  amount  to  be  expended  under  a  contract 
exceeded  $250,000  and  the  bond  given  in  accordance  with  the  estimate 
was  only  $25,000,  held,  the  requirement  of  the  regulation  could 
legally  be  waived  and  the  contract  be  approved.  C.  2388 f,  Sept.  25, 
1908.  So,  also,  where  a  contract  was  made  at  Fort  Gibbon,  Alaska, 
for  a  storehouse  and  it  appeared  that  all  materials  were  furnished  by 

1  See  pars.  577-589,  A.  R.,  1910. 

2  See  the  following  act  of  Apr.  10,  1878  (20  Stat.  36),  as  amended  by  the  act  of 
Mar.  3,  1883  (22  Stat.  487):  "That  the  Secretary  of  War  is  hereby  authorized  to 
prescribe  rules  and  regulations  to  be  observed  in  the  preparation  and  submission  and 
opening  of  bids  for  contracts  under  the  War  Department;  and  he  may  requii'e  every 
bid  to  be  accompanied  by  a  written  guarantee,  signed  by  one  or  more  responsible 
persons,  to  the  effect  that  he  or  they  undertake  that  the  bidder,  if  his  bid  is  accepted, 
will,  at  such  time  as  may  be  prescribed  by  the  Secretary  of  War  or  the  ofhcer  authorized 
to  make  a  contract  in  the  premises,  give  bond,  with  good  and  sufficient  sureties,  to 
furnish  the  supplies  proposed  or  to  perform  the  service  required.  If  after  the  accept- 
ance of  a  bid  and  a  notification  thereof  to  the  bidder  he  fails  within  the  time  pre- 
scribed by  the  Secretary  of  War  or  other  duly  authorized  officer  to  enter  into  a  con- 
tract and  furnish  a  bond  with  good  and  sufficient  security  for  the  proper  fulfillment  of 
its  terms,  the  Secretary  or  other  authorized  officer  shall  proceed  to  contract  with 
some  other  person  to  furnish  the  supplies  or  perform  the  service  required,  and  shall 
forthwith  cause  the  difference  between  the  amount  specified  by  the  bidder  in  default 
in  the  proposal  and  the  amount  for  which  he  may  have  contracted  with  another 
party  to  furnish  the  supplies  or  perform  the  service  for  the  whole  period  of  the  proposal 
to  be  charged  up  against  the  bidder  and  his  guarantor  or  guarantors,  and  the  sum  may 
be  immediately  recovered  by  the  United  States  for  the  use  of  the  War  Department 
in  an  action  of  debt  against  either  or  all  of  such  persons." 

3  Since  the  opinion  m  the  text  the  act  of  Aug.  13,  1894  (28  Stat.,  278),  amended  by 
the  act  of  Feb.  24,  1905  (33  Stat.,  811),  has  been  enacted.  It  provides  for  contractors 
giving  a  bond  to  secure  the  payment  of  labor  and  material-men,  and  for  suit  by  labor 
and  material  men  on  such  bond. 


206  BONDS  III  F. 

the  Government,  the  contract  being  for  labor  only,  and  that  the 
contracting  quartermaster  undertook  to  supervise  personally  all  labor 
employed,  and  in  view  of  these  circumstances  it  was  proposed  to 
secure  the  performance  of  the  contract  by  a  cash  deposit  of  15  per 
cent  in  lieu  of  a  bond,  as  a  bond  would  be  very  difficult  to  secure  at 
such  a  place,  Tield,  that  as  a  bond  was  required  by  statute  for  the  benefit 
of  persons  supplying  labor,  it  could  not  be  waived,  but  as  the  statute 
only  required  a  bond,  the  amount  of  the  penalty  being  a  matter  of 
regulation  only,  the  regulation  could  be  waived  and  the  penalty  fixed 
in  such  amount  as  might  be  deemed  by  the  Secretary  of  War  appro- 
priate under  the  circumstances  of  the  case.  C.  £9269,  Nov.  29,  1911. 
Ill  F.  Under  the  act  of  March  3,  1883  (22  Stat.,  487),  a  bidder 
may  be  required  by  the  Secretary  of  War  to  accompany  his  bid  with 
a  guaranty  that  upon  notice  to  him  of  the  acceptance  of  his  bid  he 
will  enter  into  contract  and  furnish  bond  for  the  proper  fulfillment  of 
his  contract.  Held,  that  if  under  such  a  requirement  a  bond  should 
not  be  given,  and  a  contract  should  be  entered  into  with  some  other 
person,  the  statute  does  not  require  such  contract  so  entered  into  with 
the  other  person  to  be  accompanied  by  a  bond.^    P.  60, 285,  July  6, 1893. 

III  G.  Where  the  sureties  on  a  contractor's  bond  are  individuals 
as  distinguished  from  surety  companies,  and  there  is  a  failure  of  finan- 
cial responsibility  on  the  part  of  one  or  more  of  the  sureties  so  that 
there  is  a  probability  that  the  bond  is  no  longer  good  for  the  required 
amount,  lield,  that  there  is  no  method  by  which  additional  security  on 
the  bond  can  be  required.^     C.  28995,  Sept.  25,  1911. 

IV  A.  A  bond  executed  in  his  official  capacity  by  the  president  or 
other  officer  of  an  incorporated  college  or  university^  to  secure  arms, 

^  There  is  no  statute  regulating  the  subject  of  contractors'  bonds  other  than  that  con- 
tained in  the  act  of  Aug.  13, 1894  (;28  Stat.,  278),  as  amended  by  the  act  of  Feb.  24, 1905 
(33  Stat.,  811),*which  refer  to  bonds  to  secure  the  payment  of  persons  supplying  labor 
and  material,  but  the  Secretary  of  War,  pursuant  to  his  implied  authority  to  require  a 
bond  at  any  time  in  connection  with  public  business,  has  provided  in  par.  577,  A.  R., 
1910,  for  contractors'  bonds,  in  case  of  contracts  for  supplies  or  services. 

2  Sec.  4  of  the  act  of  Aug.  13,  1894  (28  Stat.,  279),  provides  for  additional  security 
where  the  surety  is  a  corporation;  sec.  5  of  the  act  of  Mar.  2, 1895  (28  Stat. ,  807),  provides 
for  the  renewal  and  strengthening  of  official  bonds  when  necessary,  the  surety  being  an 
individual,  arid  par.  589,  A.  R.,  1910,  provides  for  additional  security  in  the  case  of 
official  bonds. 

3  The  issue  of  ordnance  to  educational  institutions  was  regulated  by  sec.  1225,  R.  S., 
which  provides  that:  "The  Secretary  of  War  is  authorized  to  issue,  at  his  discretion 
and  under  proper  regulations  to  be  prescribed  by  him,  out  of  any  small  arms  or  pieces 
of  field  artillery  belonging  to  the  Government  and  which  can  be  spared  for  that  pur- 
pose, such  number  of  the  same  as  may  appear  to  be  required  for  military  instruction 
and  practice  by  the  students  of  any  college  or  university  under  the  provisions  of 
this  section;  and  the  Secretary  shall  require  a  bond  in  each  case  in  double  the  value 
of  the  property,  for  the  care  and  safe-keeping  thereof,  and  for  the  return  of  the  same 
when  required."  The  above  portion  of  sec.  1225,  R.  S,,  was  replaced  by  the  act  of 
Sept.  26,  1888  (25  Stat.  491),  which  in  part  provides  that:  "The  Secretary  of  War  is 
authorized  to  issue,  at  his  discretion  and  under  proper  regulations  to  be  prescribed  by 
him,  out  of  ordnance  and  ordnance  stores  belonging  to  the  Government,  and  which 
can  be  spared  for  that  purpose,  such  number  of  the  same  as  may  appear  to  be  required 
for  military  instruction  and  practice  by  the  students  of  any  college  or  university  under 
the  provisions  of  this  section,  and  the  Secretary  shall  require  a  bond  in  each  case,  in 
double  the  value  of  the  property,  for  the  care  and  safe-keeping  thereof,  and  for  the 
return  of  the  same  when  required."  This  provision  was  subsequently  amended  by 
the  act  of  Feb.  26,  1901  (31  Stat.  810),  and  the  act  of  Apr.  21,  1904  (33  Stat.  226),  so 
as  to  require  the  approval  of  the  governor  of  the  State  or  Territory.  The  other  changes 
are  immaterial.  The  identical  wording  of  most  of  the  provisions  leaves  the  early 
opinions  of  the  Judge  Advocate  General  still  valuable.  See  G.  O.  231,  W.  D.,  Nov, 
16,  1909,  for  instructions  regulating  the  execution  of  bonds  under  the  above  acts. 


BONDS  IV  B.  207 

etc.,  issued  under  section  1225,  R.  S.,  can  not  properly  be  accepted  as 
binding  the  corporation  without  evidence  that,  by  tne  act  of  incor- 

E oration  or  otherwise,  such  officer  is  legally  empowered  to  act  for  and 
ind  the  institution.  R.  J^U  499,  Feb.  1,  1879,  6^7,  Aug.  8,  1879;  43, 
70,  Oct.  29,  1879;  C.  768,  Oct.  24,  1903,  and  Jan.  14,  1908. 

IV  B.  Where  the  bond  offered  purported  to  be  signed  by  tlie 
president  of  the  corporation,  it  should  be  shown  in  connection  with 
the  bond  that  the  person  so  signing  had  been  duly  elected  such  presi- 
dent by  the  corporation  or  by  a  managing  body  authorized  by  the 
articles  of  incorporation  to  elect  him.  T.  29,  307,  Jan.  16,  1889;  C. 
9167,  Oct.  23,  1900;  3543,  May  24,  1906.  However,  where  it  is  a 
matter  of  common  knowledge  that  certain  persons  hold  certain  official 
positions,  such  as  president  and  secretary  of  the  board  of  directors  of 
city  trusts  of  the  city  of  Philadelphia,  the  proper  evidence  of  that  fact 
may  be  waived,  as  the  bond  is  valid  without  such  evidence.  C.  2366, 
June  21,  1910.  Also,  where  the  value  of  the  ordnance  stores  is  small 
and  it  appears  from  letter  heads,  the  certificate  of  some  officer,  or 
other  evidence  not  ordinarily  considered  sufficient,  that  the  person 
signing  is  probably  president  or  that  he  has  been  authorized  to 
execute  the  bond.  U.  717,  Apr.  18,  1908.  As  where  the  value  is 
$113.97.  C.  7666,  Aug.  26,  1909.  Where  the  value  is  $260.  C. 
13024,  June  10,  1909.  Where  the  value  is  $352.60.  G.  20827,  Jan. 
8, 1907. 

IV  C.  Where  a  board  of  trustees  controlling  a  corporation  passed 
a  resolution  empowering  the  president  of  the  board  'Ho  negotiate  and 
carry  on  any  business  which,  in  his  judgment,  tended  to  the  welfare 
of  the  institution,"  advised  that  this  resolution  was  not  sufficiently 
specific  to  authorize  the  president  to  execute  an  instrument  under 
seal,  such  as  the  bond  required  by  section  1225,  R.  S.  P.  39,  158, 
Mar.  1, 1890.  A  by-law  to  the  effect  that  in  the  recess  of  the  board 
of  regents  an  executive  committee  of  the  board  should  ''have  general 
care  of  all  matters  pertaining  to  the  welfare  of  the  university,"  held 
not  sufficient  to  empower  such  committee  to  enter  into  so  legally 
formal  and  binding  an  engagement  as  the  giving  of  a  bond.  P.  63, 
467,  Feb.  10,  1894. 

IV  D.  A  general  authority  from  the  board  of  regents  of  a  uni- 
versity to  their  president  to  execute  such  bonds  as  may  be  needed 
from  time  to  time  to  secure  ordnance  stores  issued  is  sufficient  to 
authorize  the  execution  of  bonds.     C.  35^3,  Jan.  8,  1909. 

IV  E.  Where  the  trustees,  regents,  etc.,  have,  by  a  resolution 
or  vote  of  the  board,  duly  authorized  their  president,  or  other  officer, 
to  execute  the  bond  for  the  corporation,  there  should  be  furnished, 
with  the  executed  bond,  as  evidence  of  the  legality  of  the  execution, 
an  extract  of  the  minutes  of  the  proceedings  of  the  board,  fully 
setting  forth  the  adopting  of  the  resolution  giving  the  requisite 
authority,  such  extract  beiQg  certified  by  the  secretary,  or  other 
proper  custodian  of  the  records,  under  the  seal  of  the  corporation 
as  a  true  copy  of  such  minutes.  The  certificate,  or  affidavit,  of  the 
secretary  that  such  a  resolution,  giving  a  copy  of  it,  was  adopted 
is  not  a  sufficient  substitution  for  the  record  evidence,  and  wliere 
the  execution  by  the  president  rests  only  upon  such  a  certificate 
the  bond  will  not  be  accepted.  The  only  proper  evidence  of  the 
proceedings  of  a  body  which  keeps  a  record  is  the  record  itself  or  a 
transcript  duly  authenticated  by  the  legal  custodian,  and  where  it 


208  BONDS   IV  F. 

exists  its  place  can  not  be  supplied  by  the  mere  statement  of  the 
secretary  or  other  official  of  the  corporation.^  P.  29,  166,  Jan.  5, 
1889;  55,  180,  Aug.  24,  1892;  C.  6^1,  Nov.  19,  1894;  2260,  May  4, 
1896;  2038,  Aug.  28,  1899;  3704,  Mar.  1,  1907;  3543,  Jan.  20,  1908. 

IV  F.  Wliere  a  resolution  of  a  board  was  passed  authorizing  the 
president  to  execute  a  bond,  the  resolution  not  giving  the  name 
of  the  president,  and  a  bond  is  offered  pui-porting  to  be  signed  by 
the  president,  held,  that  a  copy  of  the  record  showing  that  the  per- 
son whose  name  is  signed  as  president  was  such  officer  should  accom- 
pany the  bond.2  C.  768,  Sept.  1,  1906;  942,  Jan.  11,  1907;  831, 
Nov.  16,  1908.  This  copy  may  be  waived  where  one  is  already  on 
file  with  another  recent  bond.  C.  768,  Sept.  1,  1906;  3104,  ^pr.  2, 
1910;   918,  June  30,  1910;  18951,  Nov.  17,  1910. 

IV  G.  The  bond  offered  must  be  executed  by  the  proper  obligor 
and  legal  principal.  If  executed  by  a  corporation  as  such,  the 
name  as  signed  must  be  the  corporate  name;  i.  e.,  the  same  as  that 
given  in  the  articles  of  incorporation  expressed  in  fuU.^  P.  4^,  113, 
July  24,  1890;  62,  460,  Dec.  7,  1893;  63,  117,  Jan.  2,  1894;  C.  41 2, 
Aug.  14,  1907;  Oct.  16,  1907;  836,  June  17,  1908;  Feb.  15,  1909, 
Aug.  9,  1910.  Wliere  the  corporation  as  created  by  the  legislature 
is  a  body  of  persons,  as  ''trustees,"  or  ''board  of  trustees,"  or 
"regents,  etc.,  the  bond  must  be  executed  in  the  corporate  name 
of  this  body  by  some  one  duly  authorized  thereby  and  not  in  the 
name  of  the  "college"  or  "university,"  the  latter  being  merely  an 
institution  of  learning  or  property,  having  no  legal  existence  as 
a  person.  P.  29,  461,  Jan.  24,  1889;  30,  304,  Feb.  21,  1889;  48, 
226,  July  15,  1891;  C.  28,  July  18,  1894;  ^038,  Feb.  5,  1896,  and 
Aug.  28,  1899;  16109,  Mar.  31,  1904;^  3168,  June  4,  1906;  942,  Feb. 
25,  1907.  The  name  of  the  corporation  as  it  appears  in  the  body 
of  the  bond  and  in  the  signature  should  be  the  same.  P.  62,  122, 
Oct.  16,  1893;  C.  27423,  Nov.  30,  1910.  If  the  name  is  impressed 
on  the  seal,  it  should  agree  with  that  of  the  execution,  though  if 
the  latter  be  correct  a  variation  in  the  seal  will  be  immaterial. 
P.  31,  300,  Apr.  6,  1889. 

IV  H.  The  bond  of  a  corporation  must  be  signed  for  it  by  the 
officer  of  the  corporation  or  some  other  person  authorized  to  do  so. 
If  the  corporation  consists  of  a  certain  body  of  persons,  or  if  such  a 
body  be  specifically  designated  in  the  articles  of  incorporation  as 
empowered  to  authorize  such  acts  as  the  execution  of  bonds  for  the 
corporation,  th©  authority  can  not  be  delegated  to  other  persons. 
Thus  where,  under  the  articles,  the  power  is  vested  in  a  board  of 
trustees,  it  would  not  be  legal  for  such  board  to  delegate  the  authority 
for  executing  the  bond  to  an  executive  committee  of  the  board.  P.  29, 
307,  Jan.  15,  1889;  39,  475,  Mar.  20,  1890;  56,  278,  308,  Nov.  3  and 
10,  1892;  C.  8870,  Aug.  29,  1900;  603,  July  30,  1906.  Where  the 
articles  of  incorporation  do  not  recognize  such  a  body  as  an  "execu- 
tive committee"  of  the  trustees,  regents,  etc.,  as  empowered  to  act 
for  the  corporation,  but  simply  devolve  the  management  and  con- 
trol of  the  corporation  upon  a  board  of  trustees,  etc.,  a  bond  executed 
or  authorized  to  be  executed  by  such  a  committee  will  not  be  accepted 

1  See  ''Bonds,"  IV  B,  to  the  same  effect,  and  note  under  Bonds  IV  A  for  instruc- 
tions of  the  War  Department  to  same  effect. 

2  See  par.  584,  A.  K.,  1910. 

3  See  "Bonds,"  I  G  1. 


BONDS  IV  I.  209 

as  sufficient.  In  such  a  case  it  is  the  board  which  should  authorize 
the  execution  of  the  obh«:ation.  P.  6/,.,  370,  Ajyt:  16,  1S94;  65,  38, 
IfS,  102,  May  8,  18,  23,  1894;  O.  3704,  Feb,  15,  1898;  9167,  Nov.  20, 
1900;  2260,  Sept.  8,  1906;  16109,  Apr.  18,  1904,  Apr.  30,  1909. 
Where  the  articles  of  incorporation  declared  that  the  corporation 
should  consist  of  and  be  controlled  by  certain  trustees,  but  recog- 
nized an  executive  committee,  in  providing  that  such  committee 
should,  ''under  the  direction  of  the  board  of  trustees,  have  a  general 
supervision  of  the  affairs  of  the  college  and  the  property  of  the  cor- 
l)oration,"  held,  that  such  words  were  not  sufficient  to  empower  the 
executive  committee  to  bind  the  corporation  in  so  important  a 
matter  as  the  execution  of  a  bond.  P.  64, 274,  Mar.  31 ,  1894.  Where 
I  he  act  creating  a  university  vested  the  management  of  its  affairs  in 
a  board  of  trustees,  and  provided  that  the  board  might  entrust  ''all 
routine  business"  to  an  executive  committee,  held  that  a  bond  exe- 
cuted pursuant  to  a  resolution  of  the  executive  committee  was  not 
})roperiy  authorized,  as  it  did  not  constitute  "routine  business"  of 
an  educational  corporation.  C.  323,  Sept.  15,  1894-  The  board  of 
trustees  of  a  university  established  a  rule  that  "during  the  intervals 
between  the  meetings  of  the  board  of  trustees,  all  authority  needful 
for  carrying  on  the  operations  of  the  university  shall  be  exercised  by 
the  prudential  committee,"  and  the  prudential  committee  by  a  res- 
olution authorized  the  chancellor  to  execute  a  bond  for  the  safe- 
keeping of  ordnance  stores,  held  that  it  was  questionable  whether  the 
rule  contemplated  the  giving  of  such  a  bond  as  being  "needful  for 
carrying  on  the  operations  of  the  university."  C.  18951,  Dec.  20, 
1910.  The  act  of  incorporation  provided  for  an  executive  committee 
whose  duties  should  be  prescribed  by  the  by-laws  of  the  board  of 
regents.  Such  by-laws  authorized  the  committee  "to  transact  all 
such  business  as  may  from  time  to  time  be  required  by  the  board." 
Held,  that  a  bond  executed  pursuant  to  resolution  of  the  committee, 
without  any  specific  authority  or  requirement  by  the  board  being 
shown,  could  not  be  accepted,  but  that,  if  the  board  could  not  readily 
be  convened,  a  personal  bond  of  some  individual,  with  sureties, 
should  be  substituted.  P.  64,  327,  Apr.  7,  1894;  C.  2687,  Oct.  17, 
1896.  So,  where  the  character  of  incorporation  of  a  college  vested 
the  "full  control  of  the  affairs  of  the  college"  in  a  board  of  trustees, 
and  the  board,  by  vote,  devolved  upon  an  executive  committee 
power  to  "act  for  the  trustees,"  held  that  even  if  this  delegation 
were  legal,  such  indefinite  action,  while  authorizing  the  committee 
to  transact  ordinary  business,  was  not  sufficient  to  empower  it  to 
exercise  the  special  discretion  involved  in  the  execution  of  a  sealed 
obligation  binding  the  corporation  to  the  United  States.  P.  65,  48hj 
May  8,  1894.  So,  where  a  board  of  trustees  passed  a  resolution 
giving  an  executive  committee  authority  to  "exercise  all  the  power 
of  the  board  of  trustees  not  inconsistent  with  the  acts  and  resolutions 
of  the  board,  subject,  however,  to  reversal  or  modification  of  its 
action  by  the  full  board,"  held,  that  in  the  absence  of  knowledge  of 
the  acts  and  resolutions  of  the  board  it  could  not  be  determined 
whether  the  committee  had  been  given  authority  to  sign  a  bond  to 
secure  ordnance  stores,  and  that  the  attempted  delegation  of  author- 
ity was  not  legal.     C.  603,  Aug.  30,  1906. 

IV  I.  A  bond  furnished  by  any  incorporated  college  or  university 
should  be  accompanied  by  a  duly  certified  copy  of  the  charter  or 
31106°— 12 14 


210  BONDS  IV  J. 

articles  of  incorporation  showing  that  the  institution  is  a  corporation 
and  has  power  to  enter  into  the  obligation.  P.  63, 322,  Jan.  29, 1894;  65, 
190,  and  191 ,  June  4, 1894;  C.  12568,  June  28, 1906.  The  copy  should 
be  authenticated  by  the  certificate  of  the  official  who  is  custodian  of 
the  record  of  the  same.  A  certificate  by  a  United  States  commis- 
sioner would  be  of  no  effect.  P.  64,  44,  Feb.  23,  1894.  Where  the 
copy  of  the  papers  showing  incorporation  was  certified  by  a  county 
recorder  who  had  no  seal,  field  that  if  he  had  no  seal  which  he  could 
affix,  his  official  character  should  be  certified  to  by  the  county  official 
who  was  the  custodian  of  the  record  of  his  election  and  qualification. 
P.  64,  274,  Mar.  31,  1894. 

IV  J.  Though  bonds  tendered  under  section  1225  R.  S.  have  usually 
been  those  in  which  the  corporation  controlling  the  institution  is  prin- 
cipal, it  is  not  essential  that  the  corporation  should  be  the  principal. 
The  bond  of  an  individual  as  principal — the  president  or  other  officer  of 
the  institution  or  other  person  in  a  private  capacity — may  properly  be 
accepted  if  the  security  is  deemed  sufficient.  R.  42, 598,  Apr.  24, 1880; 
C.  13024,  Oct.  24, 1908.  Where  the  college  was  not  incorporated,  and 
therefore  could  not  enter  into  the  bond,  and  its  trustees  were  merely 
appointees  of  certain  regents  of  education  in  charge  of  all  the  public 
educational  institutions  of  the  State,  recommended  that  a  personal 
bond  be  requu-ed.  P.  65,  31,  May  7,  1894.^  A  ''Mihtary  and  Agri- 
cultural college"  was  not  a  corporation  but  a  branch  or  '' department" 
of  the  State  University,  a  corporation,  by  which  it  was  governed,  held 
that,  not  being  a  legal  person,  it  had  not  the  capacity  to  enter  into  a 
bond,  but  that  the  bond  should  be  in  the  name  of  the  corporation  and 
its  execution  should  be  authorized  by  the  board  of  trustees  of  the 
university,  or — if  they  could  not  be  assembled  for  the  purpose — that 
an  individual  bond  should  be  furnished.  •  P.  64,  HO,  Mar.  3,  1894; 
C.  9167,  Nov.  20,  1900.  A  State  university,  which,  though  managed 
by  trustees  appointed  by  the  State,  is  not  incorporated,  is  only  a  piece 
of  property  of  the  State,  having  no  personal  existence  or  capacity  to 

five  a  bond.  In  such  case,  if  the  trustees  are  not  incorporated,  the 
ond  for  arms  furnished  should  be  a  personal  one.  P.  64,  304,  A'pr. 
5,  1894;  C.  3168,  June  4,  1906.  Where  the  university  was  not  an  m- 
corporated  institution,  but  property  belonging  to  a  Territory,  by 
which  it  was  carried  on  through  trustees,  and  the  legislature  had  made 
no  provision  for  a  special  bond,  held  that  the  case  was  one  in  which  a 
personal  bond  should  be  required.  P.  41,  377,  July  1,  1890;  55,  322, 
Sept.  8,1892;  C.  23553,  July  7, 1908.  Where  such  an  unmcorporated 
university  was  the  property  of  a  State,  held  that  the  State  would  be 
the  proper  principal  in  the  bond.     P.  42,  119,  July  24,  1890. 

IV  K.  No  form  for  the  bond  being  prescribed  by  section  1225, 
R.  S.,  the  Secretary  of  War  may,  if  he  deems  the  security  ample,  accep't 
a  bond  with  one  surety,  or  he  may  even  accept  the  bond  of  the  cor- 
poration without  sureties.  In  general,  however,  it  will  be  safer  to 
require  sureties;  such  a  requirement  being  also  in  accordance  with 
the  general  rule  governing  bonds  given  to  the  United  States.  Sure- 
ties to  bonds  given  by  colleges  should  in  general  be  required  to 
justify  in  the  usual  manner.  R.  39,  312,  Nov.  26,  1877.  So  held, 
also,  under  the  act  of  September  26,  1888  (25  Stat.  491),  where  it  was 
advised  that,  the  city  of  Philadelphia  as  trustee  for  the  Girard  Col- 

iSee"Bond8,"IHl. 


BONDS  IV  L.  211 

lege  fund  being  the  principal,  sureties  might  well  be  dispensed  with. 
P.  59,  176,  Apr.  25,  1893;  C,  768,  June  8,  1900;  2366,  June  26,  1906, 

IV  L.  Held,  that  a  bond  of  indemnity  of  a  security  company 
wherein  the  company  would  be  the  only  obligor  might,  in  the  dis- 
cretion of  the  Secretary  of  War,  legally  be  accepted  in  place  of  the 
usual  bond,  given  under  section  1225,  R.  S.,  wherein  both  the  college 
and  the  surety  are  obligors.  Such  acceptance  would  not  per  se  release 
the  college  from  its  liability  as  bailee  to  take  care  in  preserving  and 
duly  returning  the  arms,  but  the  instrument  should  be  executed  in 
such  form  as  to  leave  no  question  as  to  such  liability  continuing.* 
P.  64,  Feb.  27,  1894. 

IV  M.  A  form  of  bond  presented  for  acceptance  which  failed  to 
recite  that  the  college  was  or  a  capacity  to  educate  150  male  students, 
the  complement  required  by  the  act  of  September  26,  1888  (25  Stat. 
491),  but  stated  its  capacity  as  extending  to  the  education  of  80  only, 
held  defective  and  not  legally  acceptable.  P.  65,  48,  May  8,  1894- 
It  should  be  specifically  stated  in  the  bond  that  the  capacity  was  for 
the  education  of  150  male  students.     P.  65,  182,  June  1,  1894- 

IV  N.  Wliere  the  penalty  of  the  bond  as  offered  was  twice  as  great 
as  the  sum  for  which  the  president  was,  by  resolution  of  the  board, 
authorized  to  give  bond,  held  that  the  bond  could  not  be  accepted 
and  that  a  new  bond  should  be  furnished.  P.  35,  82,  Sept.  6,  1889. 
So,  held  also,  where  the  penalty  of  the  bond  as  offered  was  $1,052, 
while  the  resolution  of  the  board  authorizing  the  bond  authorized  a 
bond  m  the  sum  of  $1,051.20.  C.  3543,  Apr.  23,  1910.  So,  also, 
where  the  penalty  of  the  bond  as  offered  was  $17,592.08  while  the 
resolution  of  the  board  authorized  a  bond  in  the  sum  of  $17,574.28. 
a  24272,  Dec.  30,  1908. 

IV  O.  The  obligor  and  sureties  should  be  bound  without  condition 
or  reservation.  Where  a  bond  offered  by  a  college  contained  a  pro- 
vision to  the  effect  that  to  satisfy  any  liability  incurred  thereunder, 
recourse  should  be  had  to  the  property  of  the  college  before  the  prop- 
erty of  the  sureties  was  resorted  to,  advised  that  such  bond  be  not 
accepted  by  the  Secretary  of  War.     R.  38,  340,  Oct.  20,  1876. 

IV  P.  The  regulations  governing  the  issue  of  ordnance  stores  to 
educational  institutions  require  that  the  bond  given  to  secure  the 
safe-keeping  of  the  stores  shall  be  in  double  the  value  of  the  stores 
issued.  Held,  there  was  no  legal  objection  to  accepting  a  bond  in 
excess  of  double  the  value  of  the  stores,  the  excess  to  cover  future 
issues  as  well  as  stores  already  issued.     C.  942,  Nov.  22, 1909. 

IV  Q.  As  the  statute  requires  the  bond  shall  be  in  double  the  value 
of  the  ordnance  stores  issued  a  bond  which  lacks  $20  of  being  double 
such  value  is  defective.  C.  950,  Jan.  24,  1908.  But  a  bond  that 
lacked  55  cents  of  being  double  the  value  of  the  stores  issued  was  held 
to  be  a  substantial  compliance  with  the  statute.     C.  1766,  Jan.  5, 1905. 

IV  R.  Where  a  bond  recited  that  certain  ordnance  stores  ''have 
been  issued,"  whereas  the  bond  was  intended  to  cover  stores  not  "yet 
issued,  the  language  should  be  changed  to  "to  be  issued."  G.  1828, 
Nov.  18,  1895;  24272,  Dec.  30,  1908.  But  where  the  bond  failed  to 
state  whether  the  stores  had  been  issued  or  were  to  be  issued,  the 
space  for  that  ])urpose  being  left  blank,  the  omission  may  be  waived. 
C.  1711,  Oct.  17,  1906. 

^  See  "Bonds"  II  L,  where  a  similar  opinion  was  given  under  sec.  1191  R.  S. 


212  BONDS  V  A. 

V  A.  Section  1191,  R.  S.,  provides  that  ''all  officers  of  the  Quarter- 
master's, Subsistence,  and  Pay  Departments,  *  *  *  shall  before 
entering  on  the  duties  of  their  respective  offices,  give  good  and  suffi- 
cient bonds  to  the  United  States,^  in  such  sums  as  the  Secretary  of 
War  may  direct;  faithfully  to  account  for  all  public  moneys  and 
property  which  they  may  receive."  Held,  that  while  this  section 
does  not  specifically  vest  m  the  Secretary  of  War  the  power  to  decide 
upon  the  sufficiency  of  the  sureties  to  bonds,  still  by  implication  it 
does  so  as  he  is  the  only  official  mentioned  as  having  any  duty  to  per- 
form in  passing  upon  bonds,  and  it  is  not  reasonable  to  suppose  Con- 
gress intended  to  divide  between  several  officials  the  duties  involved 
in  passing  on  bonds.  The  Secretary  may,  therefore,  legally  accept 
security  companies  as  sureties  on  such  bonds,  as  in  the  case  of  con- 
tractors' bonds.2    P.  50, 118,  Nov.  2, 1891. 

V  B.  Where  the  regulations  regarding  corporate  sureties  required 
there  should  be  filed  in  the  War  Department  a  copy  of  the  record  of 
the  selection  and  qualification  of  the  officers,  as  well  as  a  copy  of  the 
by-laws  or  other  records,  authorizing  certain  officers  of  the  corpora- 
tion to  execute  bonds  in  its  behalf,  and  there  was  attached  to  the 
bond  a  certificate  signed  by  ''A,  secretary,"  to  the  effect  that  ''B  is 
the  president  and  A  is  the  secretary  duly  elected  and  qualified"  to 
execute  the  bond.  Held,  this  certificate  is  not  proper  evidence  for 
the  reason  that  the  facts  rest  on  the  certificate  of  the  secretary,  in- 
stead of  appearing  as  they  should  from  certified  copies  of  the  records.^ 
C.  1482,  June  21,  1895;  3946,  Aug.  16  and  22,  1906.  Such  a  defect 
may  be  waived  by  the  War  Department  where  the  value  of  the  prop- 
erty is  small,  as,  for  instance,  $113.97.     C.  7666,  Aug.  26, 1909. 

V  C.  A  corporate  surety  continues  to  be  bound  by  a  bond  notwith- 
standing the  principal  may  fail  to  pay  the  company  the  premiums 
agreed  upon.  The  United  States  not  being  a  party  to  the  arrange- 
ment between  the  princij)al  and  the  surety  whereby  the  surety  is  paid 
certain  premiums  in  consideration  of  its  acting  as  surety,  it  would  not 
be  affected  by  the  failure  of  the  principal  to  pay  the  premium.  An 
attempt  by  the  surety  to  cancel  the  bond  is  without  legal  effect. 
C.  8553,  July  5, 1900;  22571 ,  Jan.  6, 1908.  The  fiabihty  of  the  surety 
on  a  bond  for  the  performance  of  a  contract  continues  until  the  con- 
tract is  satisfied  by  performance  or  by  the  payment  of  damages  for 
the  breach  thereof.  The  United  States  therefore  has  no  interest  in 
the  matter  of  payment  of  premiums  to  a  surety  compan;y'  and  will  not 
undertake  to  decide  when  the  contractor  should  discontinue  the  pay- 
ment of  premiums.     G.  12359,  Apr.  7,  1902. 

V  D.  Where  a  surety  company  has  furnished  the  War  Department 
with  the  proper  evidence  of  the  authority  of  an  agent  to  bind  the  com- 

1  The  act  of  Aug.  13,  1894  (28  Stat.  279),  as  amended  by  the  act  of  Mar.  23,  1910  (36 
Stat.  241),  constitutes  the  statutory  authority  for  the  acceptance  of  corporate  surety 
on  bonds.  These  acts  are  supplemented  by  Army  Regulations,  pars.  581-589,  A.  R., 
1910,  and  by  G.  O.  No.  17,  War  Department,  Jan.  27, 1911,  this  order  being  republished 
at  intervals  to  bring  it  up  to  date  as  to  the  list  of  surety  companies. 

2  The  act  of  Aug.  13,  1894  (28  Stat.  279),  now  authorizes  the  acceptance  of  corporate 
surety  ** whenever  any  recognizance,  stipulation,  bond,  or  undertaking  conditioned 
for  the  faithful  performance  of  any  duty,  or  for  doing  or  refraining  from  doing  anything 
in  such  recognizance,  stipulation,  bond,  or  undertaking  specified,  is  bj^  the  laws  of  the 
United  States  required  or  permitted  to  be  given  with  one  surety  or  with  two  or  more 
sureties. 

^  See  "Bonds"  IV  E  to  the  same  effect.  The  present  requirement  of  the  Army 
Regulations  is  found  in  par.  584,  A.  R.,  1910.     See  Hanson  v.  Scituate,  115  Mass.,  336. 


BONDS  V  E.  213 

pany,  and  has  failed  to  give  notice  of  the  revocation  of  such  authority, 
it  will  continue  to  be  bound  by  the  acts  of  the  agent  under  his  author- 
ity.    C.  18002,  Apr.  18,  1908. 

V  E.  The  act  of  March  2,  1895  (28  Stat.,  807),  requiring  ofiicial 
bonds  to  be  examined  at  least  once  every  two  years  for  the  purpose  of 
ascertaining  the  sufficiency  of  the  sureties  thereon,  is  suihciently  com- 
phed  mth  as  to  bonds  on  which  a  corporation  is  surety,  if  the  corpora- 
tion fdes  periodically  in  the  War  Department  the  financial  statement 
required  by  paragraph  574,  Army  Regulations  (585  of  1910).  C. 
2516,  Aug.  12,  1896. 

V  F.  Where  upon  the  promotion  of  a  disbursing  officer  from  captain 
to  major  the  superintendent  of  a  surety  company  wrote  to  the  War 
Department  to  the  effect  that  the  company  was  willing  that  the  official 
bond  pertaining  to  the  old  office  of  captain  and  upon  which  the  com- 
pany was  surety  should  extend  to  the  new  office  of  major,  held  that 
the  letter  of  the  superintendent  was  not  sufficient  to  extend  the  bond 
as  proposed;  that  to  extend  the  same  to  the  new  office  of  major  would 
require  an  instrument  under  the  corporate  seal  referring  to  the  bond 
in  such  a  waj^  as  to  identify  it,  executed  by  officers  of  the  company 
authorized  to  bind  it  in  the  matter  of  executing  bonds.  C.  4^24,  Apr. 
21,  1899. 

V  G.  Paragraph  575,  Army  Regulations  (583  of  1910),  as  to  bonds 
of  disbursing  officers,  bidders,  and  contractors  provided  that :  *'  Before 
a  corporation  will  be  accepted  as  surety  on  the  bond  of  a  principal 
residing  in  a  State  or  Territory  other  than  the  one  in  which  it  was 
incorporated  it  must  comply  with  the  requirements  of  section  2  of  act 
of  August  13, 1894,  as  to  the  appointment  of  an  agent  on  whom  proc- 
ess may  be  served,  etc.,  and  must  file  with  the  Secretary  of  War  a 
copy  01  the  power  of  attorney  to  such  agent,  authenticated  under  the 
seal  of  the  tJnited  States  district  court  for  the  judicial  district  within 
which  the  agent  resides,  or  the  certificate  of  the  Department  of  Jus- 
tice that  the  company  has  complied  with  the  provisions  of  section  2  of 
said  act  of  August  13,  1894."  Held,  that  an  appointment  of  an  agent 
having  once  been  made,  it  would  not  be  necessary  to  file  in  the  War 
Department  a  copy  of  an  appointment  of  another  agent  subsequently 
appointed.  The  purpose  of  the  regulation  requiring  such  evidence  as 
to  the  original  appointment  of  an  agent  is  to  enable  the  Department  to 
know  whether  the  company  is  authorized  to  do  business  in  the  judicial 
district,  but  after  this  requirement  as  to  appointing  an  agent  has  once 
been  complied  with,  the  act  of  August  13,  1894  (28  Stat.,  279),  pro- 
vides that  in  the  event  of  the  death,  removal,  or  disability  of  the  agent 
service  may  be  made  on  the  clerk  of  the  court,  and  the  authority  of 
the  company  to  do  business  continues  regardless  of  the  appointment 
of  a  successor  to  the  agent.     C.  3946,  Oct  12,  1905. 

The  act  of  August  13,  1894  (28  Stat.  279),  provides  that  no  surety 
company  shall  do  business  beyond  the  limits  of  the  State  or  Territory 
''under  whose  laws  it  was  incorporated  *  *  *  until  it  shall,  by  a 
written  power  of  attorney,  appoint  some  person  residing  within  the 
jurisdiction  of  the  court  for  the  judicial  district  wherein  such  surety- 
ship is  to  be  undertaken,  who  shall  be  a  citizen  of  the  State,  Territory, 
or  District  of  Columbia,  wherein  such  court  is  held,  as  its  agent  upon 
whom  rnay  be  served  all  lawful  process  against  said  companjr." 
Held,  this  requires  that  an  agent  snail  be  appointed  in  the  judicial 
district  in  which  the  principal  on  the  bond  resides  or,  if  a  corporation, 


214  BONDS  V  H. 

has  its  principal  place  of  business.^  C.  501,  Oct.  16,  189 j.;  8946,  May 
6, 1898,  and  Nov.  10, 1898.  The  appointment  of  an  agent  in  the  District 
of  Columbia  only,  with  the  intention  of  having  all  bonds  signed  by  the 
principal  wherever  he  may  reside,  and  signed  in  the  District  of  Colum- 
bia by  the  District  of  Columbia  agent  of  the  surety  company,  would 
not  constitute  a  compliance  with  the  above  act.  0.  11618,  Dec.  18 j 
1905.  As  there  are  no  ''judicial  districts"  in  the  Philippines  within 
the  meaning  of  the  above  act,^  recommended  that  surety  companies 
doing  business  there  be  required  to  file  with  the  division  commander 
evidence  of  the  appointment  of  some  person  residing  there  upon  whom 
service  may  be  nad  in  case  suit  should  be  brought  upon  bonds  or 
contracts  of  suretyship.     C.  18893,  Jan.  8,  1908. 

V  H.  The  provision  in  section  4  of  the  act  of  August  13,  1894  (28 
Stat.  279),  that  where  the  Attorney  General  deems  a  surety  company 
no  longer  sufficient  security  he  ''may  require  that  additional  security 
be  given ''  is  prospective  only  and  does  not  authorize  the  Government 
to  require  a  new  Dond  for  work  already  done  as  a  condition  of  being 
allowed  to  complete  the  work.     C.  28265,  Feb.  16,  1909. 

V  I.  The  act  of  August  13, 1894  (28  Stat.  279),  relating  to  the  accept- 
ance of  corporate  surety  does  not  require  a  compliance  with  any  laws 
or  regulations  which  a  State  may  impose  to  qualify  a  foreign  surety 
company  to  do  business  within  the  State  with  the  officers  or  citizens 
thereof.  Under  the  act  referred  to  a  bond  of  the  surety  company  to 
the  United  States  would  be  valid  even  though  it  had  not  complied 
with  such  laws  or  regulations  of  the  State.^  0.  3604,  Oct.  22,  1897; 
29275,  Dec.  11,  1911. 

V  J.  The  act  of  August  13,  1894  (28  Stat.  279),  relating  to  the 
acceptance  of  corporate  surety  does  not  apply  to  a  contract  made  with 
a  foreign  contractor,  the  contract  to  be  made  and  performed  in  the 
foreign  country.  In  such  a  case  a  foreign  surety  company  could  be 
accepted  as  surety  although  it  had  not  quahfied  as  required  by  that 
act.     C.  19164,  Feh.  9,  1906.     Nor  does  the  act  apply  to  a  contract 


ippi; 
ds,^ 


made  and  to  be  performed  in  the  Philippine  Islands,^  but  that  under 

1  See  Par.  583,  A.  R.,  1910,  as  amended  by  G.  O.  No.  60,  War  Department,  May  8, 
1911. 

j^  See  27  Op.  Atty.  Gen.,  136,  holding  that  the  Panama  Canal  Zone  was  not  a  "judi- 
cial district "  within  the  meaning  of  the  act. 

2  See,  however,  28  Op.  Atty.  Gen.,  34,  to  the  effect  that  the  Treasury  Department 
should  not  accept  the  bond  of  a  surety  company  in  a  State  where  the  company  is  for- 
bidden by  the  laws  of  the  State  to  do  business,  notwithstanding  the  company  may  have 
complied  with  the  provisions  of  section  2  of  the  act  of  Aug.  13,  1894.  Also,  28  Op. 
Atty.  Gen.,  127,  to  the  effect  that  bonds  of  surety  companies  executed  in  States  m 
which  they  are  not  licensed,  for  principals  residing  in  those  States,  or  for  contracts  to 
be  performed  therein,  are  valid  and  enforceable  against  such  companies,  no  matter 
how  flagrant  their  violations  of  the  law  of  the  State  may  have  been  as  regards  failure 
to  qualify  to  do  business  in  the  State;  and  that  the  execution  of  a  bond  by  a  surety 
company  at  its  home  office,  or  outside  of  the  boundaries  of  a  State  wherein  it  is  not 
licensed,  for  a  principal  residing  in  such  State  or  for  a  contract  to  be  performed  there, 
would  not  be  the  doing  of  business  by  the  surety  within  the  State, 

*  In  27  Op.  Atty.  Gen.,  136,  the  opinion  was  given  that  the  Panama  Canal  Zone  was 
not  a  ''judicial  district"  within  the  meaning  of  the  act  of  Aug.  13,  1894.  See  also 
27  Op.  Atty.  Gen.,  208,  that  under  the  same  act  surety  companies  may  appoint  process 
agents  in  Porto  Rico  but  not  in  the  Philippines.  See  also  27  Op.  Atty.  Gen.,  208,  that: 
"A  surety  company  may  be  accepted  as  surety  on  the  official  bond  of  an  officer  of  the 
Government  who  is  to  discharge  his  duties  in  the  Panama  Canal  Zone,  provided  the 
surety  company  has  appointed  process  agents  in  the  judicial  district  in  which  the  prin- 
cipal in  the  bond  resided  at  the  time  it  was  made  or  guaranteed,  and  in  the  judicial 
district  in  which  the  office  Is  located  to  which  it  is  returnable,  and  provided  the  com- 
pany has  also  complied  with  all  other  legal  requirements." 


BONDS BOUNDARY.  215 

his  general  authority  the  Secretary  of  War  may  legaHj  authorize  the 
acceptance  of  any  corporation  doing  business  in  the  islands  as  sole 
surety  upon  any  bond  lor  the  performance  of  a  contract,  provided  the 
corporation  has  legal  authority  to  act  as  a  surety.  So  held  that  an 
incorporated  bank  might  act  as  surety.  C.  13893 j  May  1,  1909,  July 
23  1909, 

V  K.  Wiere  the  regulations  (par.  585—2,  A.  R.  1910)  of  the  War 
Department  provided  that  no  surety  company  will  be  accepted  as 
surety  wMch  shall  execute  bonds  in  excess  of  10  per  cent  of  its  paid- 
up  capital  and  surplus  "unless  such  company  shall  be  secured  as  to 
such  excess  to  the  satisfaction  of  the  head  of  tne  department  by  insur- 
ance or  by  deposit  with  such  company  in  pledge  or  conveyance  to  it 
in  trust  for  its  security  or  indemnity,  of  property  eq^ual  in  value  to 
such  excess,"  and  further  provided  for  a  report  snowing  the  amount 
and  character  of  such  securities,  as  to  all  bonds  in  excess  of  the  10 
per  cent  Umit.  Held  that  collateral  securities  or  counter  indem- 
nity received  from  persons  secured,  may  be  regarded  as  a  deposit 
with  the  company  in  pledge,  within  the  meaning  of  the  regulations, 
and  if  sufficient  as  to  both  character  and  amount  credit  may  be 
taken  in  the  report.     C.  11618,  June  3,  1907. 

V  L,  The  act  of  March  23,  1910  (36  Stat.  241),  amending  the  act 
of  August  13,  1894  (28  Stat.  279),  provides  that  the  Secretary  of  the 
Treasury  may  institute  inquiry  into  the  solvency  of  an  incorporated 
surety  and  ''may  require  that  additional  surety  be  given  at  any 
time  oy  any  principal  when  he  deems  such  company  no  longer  suffi- 
cient surety."  Held  that  the  statute  does  not  in  terms  vest  the  Sec- 
retary of  the  Treasury  with  authority  to  determine  the  amount  or 
character  of  the  additional  surety  that  is  to  be  exacted,  and  that  in 
the  absence  of  express  language  to  that  effect  the  law  should  not  be 
construed  as  giving  the  Secretary  of  the  Treasury  such  a  control 
over  the  administration  of  another  department,  and  that  therefore 
it  rests  with  the  Secretary  of  War  to  determine  the  amount  and  char- 
acter of  the  additional  surety  in  bonds  under  the  War  Department. 
C.  27826,  Feb.  9,  1911,  and  Mar.  21,  1911.  Held  also  that  the  above 
acts  do  not  authorize  the  Secretary  of  the  Treasury  to  determine  the 
character  of  the  instrument  by  which  a  surety  shall  be  bound,  nor 
the  amount  for  which  each  surety  may  be  accepted  in  one  instru- 
ment.    C.  29037,  Nov.  18,  1911. 

CROSS   REFERENCE. 

See  Contracts  XX  C  to  XXI. 
Of  officer See  Army  I  B  1  a  (1);  2  b  (1)  (a). 

BONUS. 

Reenlistment .' See  Pay  and  Allowances  I  C  5  c. 

BOUNDARY. 

International,  not  to  he  crossed  by  armed  See  Army  II  K  1  d;  f  (1);  (2). 
troops. 

Street  as See  Public  Property  II  C. 

Tidewaters See  Public  Property  III  G  to  H. 

"^ater  as See  Public  Property  II  D  to  E. 


216  BOXER  UI>RISING BUREAU   CHIEF. 

BOXER  UPRISING. 

Beginning  of. See  War  I  B  4. 

Claims  arising  during See  Claims  VII  B  6. 

Desertion  during See  Articles  of  War  GUI  F  2  a. 

Termination  of. See  War  I  F  4, 

BREACH  OF  PEACE. 
By  soldier See  Articles  op  War  LXII  K 

BREAD. 

Baking  at  joint  encampment See  Militia  VI  B  2  j. 

BREVET  RANK. 

See  Rank  IV  to  V. 

BRIBE. 

Disposition  of  money  tendered See  Public  Money  I  E. 

BRIDGES. 

Over  navigable  waters See  Navigable  waters  III  to  V. 

BRIGADE  POST. 

Summary  court  at See  Discipline  XVI  E  7. 

BROWNSVILLE  COURT  OF  INQUIRY. 

Retired  officers  as  members See  Retirement  I  K  2  e. 

BUILDINGS. 

Occupation  of,  during  war See  War  I  C  6  b  (1)  (a). 

On  leased  land See  Public  property  VII  A  2. 

Post  exchange See  Government  agencies  II  G  to  H. 

Title  to See  Public  property  II  E  to  F. 

BURDEN  OF  PROOF. 

As  to  loyalty  of  Filipinos See  Claims  VII  A. 

Before  court See  Discipline  XI  A  4  to  5. 

BUREAU  CHIEF. 

Deposition  of See  Articles  op  War  XCI  A  1. 

Reappointment See  Rank  1  B  1  d  to  e. 


CADET CAPITAL.  SENTENCE.  217 

CADET. 

See  Army  I  D  to  E. 

Appointments  as See  Office  III  A  4  a. 

Residence See  Residence  . 

Privilege  as  vdtness See  Discipline  X  H  1  a. 

Dismissal See  Discharge  XVIII  A, 

Summary  diemissal See  Office  I V  E  2  g  to  F. 

Dismissal  commuted  to  suspension See  Pay  and  allowances  III  F  1. 

Discharge  without  honor See  Discharge  III  F  3. 

Graduation  leave See  Absence  I  B  1  k. 

Jurisdiction  over  after  graduation See  Discipline  VIII  I  2. 

Service  as,  counts  for  retirement See  Retirement  I  A  1  b;  2  a. 

Service  otherwise  than  as See  Retirement  I  C  1  a. 

CALLING  FORTH. 

See  Militia  I  to  II. 

See  Volunteer  Army  II  B  2  to  3. 

CAMPAIGN  BADGES. 

See  Insignla.  of  merit  III  B  to  C. 
Issue  to  militia See  Militia  XIII  B. 

CAMP  FOLLOWERS. 

See  Articles  of  War  LXIII  A  to  E. 

CAMP  RETAINERS. 

See  Articles  of  War  LXIII  A  to  E. 

CANADA. 

Absconding  to See  Desertion  XX  A. 

Extradition  from See  Extradition  I. 

Official  of,  can  receive  reward  for  apprehen-  See  Desertion  V  B  14  c. 
sion  of  deserter. 

Shipment  of  troops  through See  Army  I  G  3  b  (2)  (a)  [2]  [a] ;  [b]. 

Contracts  LX. 

CANAL. 

Appropriation  for See  Appropriations  XXXVIII. 

Rules  for  navigation See  Navigable  waters  VIII. 

CANCELLATION. 

Of  contract See  Contract  VII  J  1. 

CAPITAL  CRIME. 

Charge  of,  under  59th  Article  of  War See  Articles  of  War  EIX  I  1. 

Inferior  court See  Articles  of  War  LXXXIII  B  1. 

Violation  of  parole See  War  I  C  11  b. 

CAPITAL  SENTENCE. 

Based  on  several  offenses See  Articles  of  War  XCVI  A;  B. 

Commutation  of. See  Articles  of  War  CXII  A  1  a  (1). 

In  time  of  peace,  by  general  court-martial. .  .See  Articles  of  War  XXI  E  1. 
Record  of. See  Discipline  XIII  M. 


218  CASH CHALLENGE   TO   FIGHT. 

CASH. 

As  guaranty See  Contracts  XI  L. 

Se-'Zing  in  bank See  War  I  C  6  e  (1). 

CEMETERIES. 

See  Public  property  IV  to  V. 

Fencing  of. See  Appropriations  LVII. 

Maintenance  of. See  Appropriations  LXVII. 

CERTIFICATE. 

Destruction  of  property  to  prevent  contagion  .See  Pay  and  allowances  II  A  3  a  (4)  (d) 

[1]  m. 
Discharge See  Discharge  XIII  E  1  to  3:  XIV  A  to 

D5. 

Discharged  soldier's  right  to See  Discharge  II  B  5. 

Evidential  value  of. See  Militia  XVI  H. 

Health See  Tax  III  L. 

Of  discharge  not  required  at  muster  out See  Volunteer  Army  IV  B  5. 

Discharge  XVI  A  1. 

Officer  refuses  to  sign See  Articles  of  War  XXI  C  1  a. 

With  application  for  pardon  of  deserter See  Desertion  XV  E  1. 

CERTIFICATE  OF  DISABILITY. 

See  Discharge  V  A  to  D;  XIII  D  4  a. 

Authority  to  give See  Discharge  XX  D  1;  2. 

Effect  of,  on  retirement  of  enlisted  men See  Retirement  II  A  1  a. 

CERTIFICATE  OF  MERIT. 

See  Insignia  op  merit  II  to  III. 
Awarding  during  fraudulent  enlistment.  . .  .See  Enlistment  I  A  9  n. 

CERTIFIED  CHECK. 

See  Contracts  XX  C  3. 
Accompanying  bid See  Contracts  XI  to  XII. 

CESSION  OF  JURISDICTION. 

See  Public  property  V  E  to  G. 
Discipline  VIII  D  4. 
Command  V  A  3  f . 

Over  reservation See  Public  property  III  A  1. 

Tax  III  A  to  E. 

CHALLENGE  OF  MEMBER. 

Failure  to  exercise See  Discipline  XV  F  7. 

Judge  advocate See  Discipline  IV  N. 

Member  of  general  court-martial See  Articles  of  War  LXXXVIII  A  to  D. 

Discipline  XIII  C  2;  2  a. 

Military  commission See  War  I  C  8  a  (3)  (d)  [1]. 

Overruled  improperly See  Discipline  XI V  E  9  a  (15). 

Right  to See  Discipline  XV  li  10. 

CHALLENGE  TO  FIGHT. 

Elements  of. See  Articles  of  War  XXVI  A. 

Inciting  to » See  Articles  of  War  LXII  D. 


CHAPLAIN CHIEF   OF   ORDNANCE.  219 

CHAPLAIN. 

Porto  Ricttu  Regiment. See  Army  I  G  2  a  (1)  (6). 

CHAEACTEE. 

Deserter See  Discharge  II  B  2  a. 

Enlistment  I  D  3  c  (13);  (14). 

Discharge  by  purchase See  Discharge  VI  D  5. 

Evidence  of. See  Discipline  X  A  2;  XI  A  11;  11  a. 

Fraudulent  enlistment See  Enlistment  I  A  9  1 . 

Reenlistment See  Enlistment  I  D  3  to  II. 

Resignation  of  officer See  Office  IV  D  G. 

Soldier See  Discharge  V  A  to  P.;  XL  A  to  C  1.    ' 

Summary  discharge  of  officer See  Office  I V  E  2  e. 

Volunteer,  hoiv  determined See  Volunteer  Army  IV  H  2. 

CHARGES. 

See  Discipline  II  to  III. 

Disposition  of. See  Officla.l  records  I  B  1. 

List  of  ^fitnesses See  Discipline  X  A  4. 

Military See  Discipline  II  A  to  K;  IB  3. 

Military  commission See  War  I  C  8  a  (3)  (d)  [1];  [5]. 

Service  of,  on  accused See  Articles  of  War  LXXI  A  to  D . 

Retired  soldier See  Retirement  II  B  3  a;  b. 

Retiring  board  can  not  try See  Retirement  I  B  1  c  (3). 

CHECK. 

Forged  checks See  Public  money  II  B  2. 

Loss  of. See  Public  money  II  B  3. 

"No funds" See  Articles  of  War  LXI  B  10. 

Payable  to  whom See  Public  money  III. 

Sending  through  the  mail See  Public  money  II  B  6. 

CHIEF  FORESTER. 

Can  not  use  Army  to  police  forest  reserves. .  .See  Army  II  H. 

CHIEF  MUSICIAN. 
Status  of. See  Army  I  E  4. 

CHIEF  OF  BUREAU. 

Deposition  of. See  Articles  of  War  XCI  A  1. 

Reappointment See  Rank  I  B  1  d  to  e. 

CHIEF  OF  COAST  ARTILLERY. 

Not  part  of  War  Department See  Civilian  employees  VIII  A„ 

See  Army  I  G  2  b  (1). 

CHIEF  OF  ENGINEERS. 

Authority  to  grant  leaves See  Absence  I  B  I  c  (3). 

Custodian  of  public  buildings See  Public  property  I  E. 

CHIEF  OF  ORDNANCE. 

Authority  of. See  Army  I  G  3  b  (4)  (a). 

Demands  return  of  arms  from  colleges See  Military  instruction  II  B  2  e  (1). 


220    CHIEF   OF   PHILIPPINE    CONSTABULARY CIVIL   AUTHORITIES. 

CHIEF  OF  PHILIPPIIirE  CONSTABULARY. 

Civil  office  with  military  rank  attached See  Command  I  0. 

Eligibility  to  command See  Command  V  B  5. 

Territories  IV  B  2  a. 
Army  II  G  1  a;  2a(l). 

Heat  and  light See  Pay  and  allowances  II  A  1  c  (4). 

CHIEF  OF  STAFF. 

0/  Department See  Army  I  G  3  a  (1)  (a). 

CHILD. 
As  witness See  Discipline  X  B  3, 

CHINAMAN. 

See  Officer's  servant  I. 

CHOSE   IN   ACTION. 

See  Public  property  I  D. 
CHURCH. 
Attendance See  Articles  of  War  LII  A, 

CITIZEN. 

See  Civilian, 

Filipino  is  not  citizen  of  United  States See  Desertion  XIV  B  1. 

Should  cooperate  to  suppress  violence See  War  I  B  5  a  (1). 

CITIZENSHIP. 

Eligibility  for  enlistment  is  not  a  right  o/.  ..See  Enlistment  ID  3  c  (6). 

How  acquired See  Alien  II;  III;  VI  D  4. 

Enlistment  I  B  1  b  (2);  C  1  c  (1)  g. 

How  acquired  in  Alaska See  Territories  III  A. 

Pardon^  rights  of^  restored  by See  Pardon  V. 

CIVIL  AUTHORITIES. 

I.  CIVIL  COURTS. 

A.  When  Government  is  a  Party. 

1.  May  order  witnesses  at  public  cost. 

B.  Government  not  a  Party. 

1.  Officers  or  enlisted  men  may  be  allowed  to  attend  as  witnesses. 

2.  Look  to  officers  of  civil  court  for  fees. 

3.  General  prisoner  desired  as  witness. 

a.  Transferred  under  guard  to  station  nearest  court. 

n.  COMPTROLLER  OF  THE  TREASURY. 

A.  View  Does  not  Conclude  the  War  Department. 

I  A  1.  Wliere  the  Government  is  a  party  to  a  civil  action/  it  is 
proper  for  an  officer  or  soldier  to  be  ordered  to  appear  as  a  witness 

1  Civil  courts  take  judicial  notice  of  executive  orders  of  the  President  of  the  United 
States,  reserving  lands  within  the  jurisdiction  for  military  purposes.  (See  U.  S.  v. 
Kauchi  Matohara,  U.  S.  District  Court  for  the  Territory  of  Hawaii,  Oct.,  1911  term. 
Cases,  773  and  784.) 


CIVIL  AUTHORITIES   I   B   1.  221 

at  public  cost,  as  the  Government  is  a  party  to  the  action,  and  each 
party  must  pay  tlie  traveling  expenses  of  its  witnesses.^  C.  17860, 
Nov.  19,  1909. 

I  B  1.  On  application  made  to  have  certain  officers  and  military 
em])loyees  ordered  to  appear  as  \\dtnesses  before  a  civil  court,  held 
that  a  military  order  could  not  properly  issue  for  that  purpose,  but 
that  it  would  bo  proper  for  the  desired  witness  to  be  allowed  to  attend 
the  court. 2     C.  2382^,  Apr.  12,  1909. 

I  B  2.  Neither  the  appropriation  "for  the  compensation  of  wit- 
nesses" attending  military  courts,  nor  the  appropriation  for  the  con- 
tingent expenses  of  the  Army,  is  applicaole  to  the  payment  of 
allowances,  as  witnesses  before  civil  courts,  of  officers  or  soldiers  of 
the  Army  or  of  civil  employees  of  the  military  establishment.  For 
such  allowances  they  must  look  to  the  laws  and  appropriations 
fixing  and  authorizing  the  payment  of  witness  fees  in  these  courts.^ 
P.  55,  471,  and  56,  97,  Oct.,  1892;  C.  5335,  Nov.,  1898;  75^0,  Jan., 
1900;  112U,  Sept.  14,  1901;  I44I8,  Apr.  2,  1903;  16068,  Mar.  24, 
1904;  17860,  Apr.  19,  1905;  23824  Apr.  12,  1909. 

I  B  3  a.  The  evidence  of  a  general  prisoner  confined  at  Fort  Jay, 
N.  Y.,  was  desired  in  the  trial  of  a  case  before  a  civil  court  in  the 
State  of  Massachusetts.  Held  that  upon  request  by  the  proper 
court  such  prisoner  would  be  transferred  under  guard  to  Boston 
Harbor  for  tne  purpose  of  being  brought  before  the  court  as  a  witness. 
C.  19427,  Sept.  23,  1907. 

II  A.  Held  that  the  views  of  the  Comptroller  of  the  Treasury  as 
to  matters  of  Army  administration  are  not  conclusive  on  the  War 
Department  except  so  far  as  they  are  applied  to  matters  within  his 
jurisdiction.  Thus,  on  a  question  of  organization  he  may  hold  one 
way  for  the  purpose  of  pay  and  the  War  Department  may  hold  dif- 
ferently for  other  purposes."*     C.  8196,  May  2,  1900. 

CROSS   REFERENCE. 

Apprehension  of  deserter See  Desertion  V  A  to  G. 

Commanding  general  may  remove See  War  I  C  8  a  (2)  (b). 

Contraband  turned  over  to See  Army  II  K  1  e  to  f . 

Discharge  of  soldier  by  United  States  Com-  See  Discharge  XVI  D  1. 

missioner. 
Enlisted  man  in  hands  of. • See  Absence  II  B  4  a  ;  a  (1) ;  9  a. 

Command  V  A  2  c. 

Enlistment  I  B  2  b. 

Pay  and  allowances  II  A  3  a  (2). 

Employment  of  Army  to  aid See  Army  II  to  III. 

Forcible  entry  of  dwelling See  Desertion  III  B. 

Neutrality,  information  of  violation  of. See  Army  II  K  1  c. 

^  The  United  States  District  Court  for  District  of  Hawaii  has  jurisdiction  of  an  assault 
committed  upon  a  military  reservation  in  the  Territory  of  Hawaii  (Id.). 

2  See  Par  75,  A.  R.,  1910  ed. 

^  If,  however,  it  is  absolutely  necessary  to  furnish  them  transportation  in  kind  to 
enable  them  to  appear,  as  witnesses  for  the  Government,  before  a  civil  court  of  the 
United  States,  an  account  of  such  expenditure,  together  with  the  evidence  that  they 
were  properly  subpoenaed  and  did  attend  the  court,  will  be  forwarded  to  the  War 
Department  for  presentation  to  the  Department  of  Justice.  Officers  providing  such 
transportation  will  notify  the  court,  or  the  marshal  thereof,  that  it  was  furnished  to 
enable  the  witnesses  to  perform  the  requisite  journeys  in  obedience  to  the  summons. 
A.  R.,  72,  edition  of  1895  (par.  75,  1910  ed.). 

*  Finding  of  Comptroller  on  claims  against  the  United  States  is  not  conclusive  on 
the  courts.    See  U.  S.  v.  Gillmore  (189  Fed.  Rep.,  761). 


222  CIVIL  BANDS CIVILIAN. 

Offenders  turned  over  to., See  Command  V  A  3  c  (1). 

Army  I  A  6. 

Articles  op  War  LIX  A  to  L  2. 

Officer  in  hands  of. See  Absence  II  A  1. 

Prisoners  kept  for.... See  Command  V  A  8.      ^ 

Subpoena  by.. See  Army  I G;  3  b  (2)  (a)  [3]  [c]. 

Public  property  III  A  1;  V  F  1  b 
(3)  {h). 
War  status  can  not  be  terminated  by  decision  See  War  I  F  1 . 
of  civil  court. 

CIVIL  BANDS. 

See  Army  bands. 
May  employ  Army  musicians See  Army  bands  I  C  3. 

CIVIL  COURTS. 

AppealnottaJcenfrom  general  court-martial.  See  Discipline  XV  I  1, 
Commanding  general  appoints  in  time  of  See  War  I  C  8  a  (2)  (a). 

war. 

Concurrent  jurisdiction  of. See  Article  of  War  LVIII  A;  CII  C. 

Condemnation  of  land See  Public  property  II  A  4  b. 

Discharge  by See  Discharge  VII  A;  B. 

Discharge  on  account  of  punishment  by See  Pay  and  allowances  III  C  2  c  (2). 

Jurisdiction  over  officer  or  soldier See  Article  op  War  CII  A  to  I. 

Jurisdiction  over  retired  officer See  Retirement  I  G  2  d. 

Jurisdiction  under  military  government .  .  .  .See  War  I  C  8  a  (3)  (&)  to  (d). 

Pay  not  earned  while  in  hands  of See  Pay  and  allowances  I  C  3. 

President' s  action  in  dropping  officer,  asde-  See  Desertion  XX  D. 

serter  can  not  be  reviewed. 

Prisoners  of  war,  tnal  of See  War  I  C  11  c  (2);  (3);  12  a. 

Prisoner  turned  over  to See  Army  I  A  6. 

Records  furnished  to See  Army  I  B  a  c  (1). 

Ofpicial  records  I  a  2  a. 
Right  of  accused  to  be  confronted  with  wit-  See  Article  op  War  XCI  H. 

nesses. 

Soldiers  tried  by See  Article  op  War  XXI  E  1. 

State  courts  can  not  enjoin   United  States  See  Public  money  II  C  G. 

courts. 
State  courts  can  not  enjoin  Federal  agent ....  See  Contracts  LVIII. 

Subpoena  of. See  Army  I  E  5. 

Territorial  jurisdiction See  Discipline  VIII  D  4. 

War  status  can  not  be  terminated  by  decision.  See  War  I  f  1. 

Warrant  of See  Command  V  A  3  1;  V  B  2  b;  V  B  2  c. 

Witnesses  before See  Civil  authorities  I  A;  I  A  1;  I  B  1; 

IB  3a. 

CIVIL  DISORDER. 

See  Army  II  to  III. 

CIVILIAN. 

Abuse  of  by  Army See  Article  of  War  LIV  A  to  H  2. 

Abv^e  of  by  militia See  Article  op  War  LIV  F  2;  LIX  A  to 

L2. 

Appointment  to  military  office See  Office  III  A  1  c  to  e. 

Armed  and  equipped,  but  not  soldiers See  Volunteer  Army  II  F  1  b  to  c. 

Arrest  of  by  military See  Command  VA3c;VA3c(l);VA3d 

Arrest  of  by  mistake See  Claims  XII  E. 

Arrest  of  deserter  by See  Desertion  III  F. 

Camp  follower See  Article  of  War  LXIII  A  to  E. 

Can  not  convene  court-martial See  Discipline  X  V  H  1. 

Can  not  heep^  captured  property See  War  I  C  G  c  (3)  (a). 

Charges  initiated  by See  Discipline  II  B. 


oiviLJAN  employees:  synopsis.  223 

Company  tailor See  Article  of  War  XXI  B  1. 

Contract  tiirgeon See  Army  I  G  3  d  (4)  (c). 

Debts  against  officers See  Army  I  A  2  a  (2). 

Detention  of See  Discipline  I V  B  4  a. 

Enlistment  changes  status See  Enlistment  I  A. 

Exclusion  from  reservation See  Command  V  A  3  a;  3  b. 

Discipline  XVII  A  4  g  (4). 

Fishing  on  military  reservation See  Command  V  A  3  f . 

Injured  on  transport See  Command  V  B  2  b. 

Inmates  of  Soldiers*  Home See  Soldiers'  Home  I  A, 

Judge  Advocate See  Discipline  III  C  2  b. 

Jurisdiction  over See  Discipline  VIII  G  2  a  to  b;  XIV  E  2. 

Medical  attendance  on : See  Army  I  G  3  d  (1). 

Messenger  to  cross  international  boundary .  ..See  Army  II  K  1  f  (1). 

Militarjf  instruction  of See  Military  instruction  II. 

Not  surrendered  under  Fifty-ninth  article  o/See  Article  of  War  LIX  H. 
war. 

Offenses  against See  Article  op  War  LXII  C  5  a. 

Removal  from  reservations See  Public  property  III  H  to  I. 

Command  V  A  3  d  (^). 

Reward  for  apprehension  of  deserter See  Desertion  V  A  to  F  19. 

Squatters  on  military  reservation See  Public  property  II  B  3  a. 

Subpcena  served  by See  Discipline  X  F  1 ;  2. 

Trial  of  by  military See  Article  of  War  XL  A. 

Desertion  V  F  4  a;  5;  IX  O. 

CIVILIAN  EMPLOYEES.^ 
I.  LEAVES. 

A.  Who  are  Entitled  to. 

1.  Expert  accountant,  Inspector  General 's  Department Page  226 

2.  Employees  of  navy  yards,  gun  factories,  naval  stations,  arsenals, 

armories,  ordnance  and  powder  depots,  but  not  employees  of 
inspectors  of  ordnance  on  duty  at  works  not  belonging  to  the 
United  States. 

B.  Nature  of. 

1.  Thirty  days'  annual  leave  and  30  days'  sick  leave  may  be  granted. 

2.  More  than  a  total  of  60  days'  leave,  with  pay,  may  not  be  granted 

even  though  the  cause  of  absence  be  sickness Page  221 

3.  Within  the  limit  of  60  days,  leave  may  be  granted  because  the  pres- 

ence of  clerk  would  jeopardize  health  of  fellow  clerks, 

4.  In  case  of  absence  without  leave  surgeon's  certificate  does  not 

operate  to  restore  pay,  but  may  be  a  guide  to  the  Secretary  of 
War  in  acting  on  the  case. 

C.  Certain  Rulings  in  Regard  to. 

1.  The  Secretary  of  War  may  not  detail  a  clerk  of  the  War  Department 

as  military  instructor  at  a  school  without  deduction  of  time  or  pay. 

2.  No  authority  for  granting  indefinite  leave  without  pay  to  clerk  to 

cover  absence  as  officer  of  volunteers Page  228 

3.  Time  lost  by  employees  of  Ordnance  Department  due  to  lay-offs 

by  proper  authority,  does  not  interrupt  continuity  of  service  for 
leave. 

4.  It  is  a  proper  expenditure  for  the  quartermaster's  department  to 

use  its  funds  to  procure  the  services  of  temporary  employees  to 
replace  the  employees  at  large  who  are  absent  on  leave  without 
pay. 

^  Prepared  by  Lieut.  Col.  John  Biddle  Porter,  judge  advocate,  assistant  to  Judge 
Advocate  General. 


224  CIVILIAN  employees:  synopsis. 

■• 
I.  LEAVES— Continued. 
D.  Holidays. 

1.  Per  diem  employees  may  enjoy  holidays  established  by  States,  but 

not  receive  pay  if  they  do. 

2.  Per  diem  employees  may  receive  pay  for  the  holidays  established 

by  law  unless  employment  ended  the  day  before  or  began  the 
day  after  such  holiday. 

3.  Pay  allowed  'per  diem  employees  for  holidays  specified  in  joint  reso- 

lution of  1885,  except  July  4,  only  when  holiday  does  not  fall  on 
Sunday.     Pay  allowed  for  July  4  on  day  celebrated  as  such. 

4.  Per  diem  employees  suspended  and  not  at  work  during  period  which 

includes  holiday  not  entitled  to  pay  for  same. 

5.  Employees  who  work  on  holidays  not  entitled  to  double  pay. 

6.  The  operation  of  the  joint  resolution  of  1887  granting  pay  to  per 

diem  employees  is  not  restricted  to  city  of  Washington  nor  to  per- 
manent per  diem  employees. 

7.  Days  proclaimed  by  President  for  mourning: 

a.  Per  diem  employees  at  arsenal  not  entitled  to  pay. . .  Page  229 

b.  Employees  employed  and  paid  by  the  day  not  entitled  to  pay, 

but  employees  for  definite  periods  longer  than  day  or  indefi- 
nite periods  entitled  to  pay,  although  their  compensation 
be  measured  by  the  day. 
n.  STOPPAGE  OF  PAY. 

A.  Pay  of  Civil  Employee  can  not  be  Stopped  to  Liquidate  Peivate 

Indebtedness. 

B.  Pay  of  Employee  may  be  Stopped  by  Commanding  Officer  of  Arse- 

nal TO  Amount  Necessary  to  Make  Good  Damage  to  Government 
Property  Due  to  Neglect  of  Employee. 

C.  Hospital  Charges  Due  United  States  from  Civil  Employees  may 

be  Collected  from  Sums  Found  Due  Them  for  Services  to  United 
States. 

D.  Clerk  Discharged  from  One  Office,  Reinstated  and  Assigned  to 

Another  Office  may  Have  Pay  Stopped  to  Meet  Excess  op  Leave 
Under  First  Appointment. 

m.  JURY  DUTY. 

A.  Officers  of  the  Army  and  Civil  Employees  of  Military  Establish- 
ment Should  not  be  Called  upon  for  Jury  Duty,  Road  Work,  etc. 

IV.  DUTY  AS  WITNESS. 

A,  Employees  Covered  by  Act  of  1898  not  Entitled  to  Leave  with 

Pay  While  Absent  as  Witnesses  Except  Where  Summoned  as 
Witness  for  United  States Page  230 

B.  Employees  not  Covered  by  Act  of  1898  Entitled  to  Leave  with 

Pay  While  Absent  as  Witnesses. 
V.  DEFINITIONS. 

A.  Crew  of  Transport  are  Civilian  Employees. 

B.  Superintendents  of  National  Cemeteries  are  Civil  Officers  of 

United  States  and  not  Part  of  Military  Establishment. 

C.  Master  Mechanic  at  Arsenal  does  not  Hold  Federal  Office,  but 

Employment  Simply. 
VI.  HOLDING  OTHER  OFFICE. 

A.  Civil  Service  Clerk  May  not  Accept  Appointment  as  Vice  Consul 

of  Foreign  Power,  Though  no  Salary  Attach. 

B.  Clerk  May  not  Accept  Office  as  Alderman  or  as  City  Attorney. 

C.  Quartermaster  Employees  not  Prohibited  by  Law  or  Regulations 

FROM  Accepting  Office  as  Member  of  City  Council Page  231 


CIVILIAN  employees:  synopsis.  225 

vn.  NOTARY  PUBLIC. 

A.  A  Clerk  Who  is  Also  a  Notary  Public  not  Precluded  from  Receiv- 
ing Fees  as  Notary  in  the  Execution  of  Contracts  with  Govern- 
ment. 

vm.  DETAILS. 

A.  Enlisted  Man  May  not  be  Detailed  for  Clerical  Duty  in  Quarter- 

master's Department,  but  May  be  so  Detailed  in  Office  of 
Chief  of  Artillery. 

B.  Clerk  not  Eligible  for  Appointment  as  Post  Noncommissioned 

Staff  Officer. 

C.  Clerks  Provided  for  Headquarters  of  Divisions,  Departments, 

AND  the  Chief  of  Staff  May  be  Assigned  to  Duty  with  Artillery 
Board,  Fort  Monroe.    Restriction  is  to  Details  to  Duty  in 
Bureaus  of  War  Department. 
IX.  TRAVEL. 

A.  No  Precedent  for  Allowing  Traveling  and  Other  Expenses  op 

Personal  Clerk  of  Officer  Ordered  Before  Court  of  Inquiry. 

B.  Transportation  to  Five  Postal  Clerks,  with  Sleeping-Car  Accom- 

modation, Requested  by  Quartermaster's  Department,  en  Route 
*  *  FOR  Duty  with  Troops  in  the  Field,  "  Payable  from  Army  Trans- 
portation. 
X.  ADDITIONAL  COMPENSATION. 

A.  Discussion.    Clerk  in  War  Department  may  Receive  Additional 

Compensation  for  Work  Under  Appropriation  for  Gettysburg 
National  Park. 

B.  Under  Appropriation  Act  of  1894  Clerks  and  Messengers  "Em- 

ployed and  Apportioned  to  the  Several  Headquarters  and  Sta- 
tions BY  THE  Secretary  of  War"  may  not  be  Discharged  or 
Their  Salaries  Increased  or  Reduced  by  a  Department  Com- 
mander   = Page  232 

C.  Clerk  of  Bureau  of  War  Department  may  not  Have  Additional 

Compensation  for  Services  Rendered  as  Acting  Chief  Clerk. 
XL  VACATION  OF  POSITIONS. 

A.  Resignation. 

1.  Resignation  of  an  employee  may  be  accepted  to  take  effect  upon 

the  last  day  he  worked,  although  acceptance  be  subsequent  to 
that  date. 

2.  Where  civilian  accepts  employment  as  clerk,  with  no  understanding 

as  to  tenure  of  ofl5ce,  he  may  resign  when  he  sees  fit. 

3.  Rule  as  to  acceptance  of  resignation  of  clerk  same  as  that  of  officers, 

where  notice  of  acceptance  has  been  communicated  . .  Page  233 

4.  Resignation    of    civil-service    employee    under    investigation    for 

political  activity  should  not  be  accepted  but  the  employee 
dismissed. 

B.  Discharges. 

1.  The  ultimate  discharge  of  employee  as  of  tfie  date  of  his  suspension 

is  lawful. 

2.  Clerk  discharged  for  cause  may  not  be  allowed  to  resign. 

3.  A  clerk  having  been  discharged,  the  discharge  is  beyond  recall, 

even  when  there  was  mistake  on  part  of  officer  recommending 
or  issuing  discharge. 
31106°— 12 15 


226  CIVILIAN   EMPLOYEES  I  A  1. 

Xn.  INJURIES. 

A.  Discussion. 

B.  Compensation. 

1.  Under  act  of  May  30,  1908,  compensation  may  include  commuta- 

tion of  rations,  if  subsistence  was  furnished  the  employee  at 
time  of  accident. 

2.  Relief  could  not  be  granted  under  act  of  May  30,  1908,  to  carpenter 

injured  while  working  on  bridge  in  connection  with  water  supply 

at  West  Point Page  234 

Xni.  MILITARY  SERVICE. 

A.  Clerks  in  Quartermaster's  Department  who,  in  1862,  were  Em- 

ployed AS  AN  Armed  Force  were  not  in  the  Military  Service, 
BUT  Remained  Civilians. 

B.  The  Term  "Service  in  War"  in  Uniform  Regulations  Relates  to 

Service  as  Officer  or  Enlisted  Man  and  does  not  Attach  to 
Status  of  Civil  Employee. 
XIV.  DESERTION. 

A.  A  Civil  Employee  does  not  become  Liable  as  a  Deserter  by  Aban- 
doning HIS  Employment. 
XV.  SEAMAN. 

A.  If  a  Seaman  is  Discharged  by  Voluntary  Consent  in  a  Foreign 
Port  he  is  Entitled  to  Wages  up  to  Time  op  Discharge,  but 
Unless  his  Time  has  Expired  he  Should  not  be  Discharged  in 
Foreign  Port  to  Become  a  Public  Charge. 
XVI.  MISCELLANEOUS. 

A.  Clerk  of  War  Department  who  was  Treasurer  of  a  Society  hav- 

ing FOR  ITS  Object  the  Raking  op  Personal  Loans  to  Employees 
at  2  PER  cent  per  Month  Violated  the  Executive  Order  of  April 
13,  1911. 

B.  Civil  Service  Rules  as  they  Stand  Permit  the  Appointment  with- 

out Examination  of  a  Second  Driver  for  the  Secretary  op 
War. 

C.  Where  the  Commissioner  for  Marking  Graves  of  Confederate 

Dead  died  while  in  Office  the  Chief  Clerk  of  the  War  Depart- 
ment SHOULD  Certify  such  Vouchers  as  Remain  to  be  Accom- 
plished     Page  235 

I  A  1.  Although  the  expert  accountant  is  not  a  part  of  the  clerical 
force  of  the  War  Department,  he  is  a  civil  officer  of  the  department 
who,  from  the  nature  of  his  qualifications,  is  employed  in  the  office 
of  the  inspector  general  or  in  the  militaiy  establishment  at  large  at 
the  discretion  of  the  proper  military  superior.  To  such  a  case  the 
terms  of  the  departmental  regulation  of  August  5,  1899  (having 
relation  to  leaves),  seem  to  have  full  application.  G.  26298,  Mar.  3, 
1910;  14290,  Aug.  23,  1911. 

I  A  2.  Held  that  in  the  act  of  February  1,  1901  (31  Stat.  746), 
which  grants  15  days'  leave  in  each  year  to  employees  of  the  navy 
yards,  gun  factories,  naval  stations,  and  arsenals,  the  word  '^arse- 
nals" is  broad  enough  to  include  armories  and  ordnance  and  powder 
depots,  but  does  not  embrace  employees  of  inspectors  of  ordnance  on 
duty  at  works  not  belonging  to  the  United  States.  G.  10039,  Mar.  20, 
1901;  13U0,  Oct.  29,  1902. 

I  B  1 .  Section  7  of  the  act  of  March  15,  1898  (30  Stat.,  316),  provides 
that  the  head  of  any  department  may  grant  30  davs'  leave  with  pay 
in  any  one  year  to  each  clerk  or  employee,  and  also  that,  in  excep- 


CIVILIAN   EMPLOYEES   I  B   2.  227 

tional  and  meritorious  cases,  where  a  clerk  or  employee  is  personally 
ill,  and  where  to  limit  the  annual  leave  to  30  days  would  work  peculiar 
hardsliip,  the  leave  may  be  extended  with  pay  not  exceeding  30  days. 
In  a  later  act  (July  7,  1898,  30  Stat.,  653)  it  was  provided  that  noth- 
ing contained  in  the  said  section  of  the  act  of  March  15  shall  be  con- 
strued to  prevent  the  head  of  the  department  from  granting  30  days' 
annual  leave  with  pay  to  a  clerk  or  employee,  notwithstanding  the 
clerk  or  employee  may  have  had  not  exceeding  30  days'  leave  with 
pay  on  account  of  sickness.  Held,  that  construing  these  two  acts  to- 
gether, they  reestabhsh  the  old  and  simple  law  and  custom  of  the 
department  to  the  effect  that  the  Secretary  of  War  may  (through  the 
heads  of  bureaus  or  personally)  grant  to  each  clerk  and  employee  dur- 
ing each  year  30  days'  leave  with  pay  (called  in  the  statutes  annual 
leave"),  and  in  addition  thereto,  during  the  same  period,  a  leave  with 
pay  not  to  exceed  30  days,  if  during  such  time  the  clerk  or  employee 
IS  compelled  by  personal  illness  to  be  absent.^     Sixty  days'  leave  with 

Eay  is  all  that  may  be  granted  in  any  one  year.  Tnus  where  a  clerk 
as  been  absent  sick  39  days  and  had  drawn  pay  therefor,  held  that  he 
could  be  allowed  21  days' leave  with  pay  during  the  remainder  of  the 
year,  but  no  more.     C.  4694,  July  29,  1898;  16250,  May  2, 1904. 

I  B  2.  Held,  that  the  head  of  an  executive  department  can  not 
legally  grant  more  than  60  days'  leave  of  absence  with  pay  to  any 
employee  in  any  one  calendar  year,  and  this  regardless  of  whether  the 
employee  has  been  absent  beyond  the  legal  allowance  of  leave  because 
of  sickness.     C.  13425,  Oct.  10,  1902. 

I  B  3.  Held,  that  under  section  7  of  the  act  of  March  15,  1898  (30 
Stat.,  316),  which  amends  section  5  of  the  act  of  March  3,  1893 
(27  Stat.,  715),  a  clerk  who  was  absent  because  his  presence  '^  would 
jeopardize  the  health  of  his  fellow  clerks"  might  receive  pay  during 
such  absence,  provided  that  his  entire  absence  during  the  year  should 
not  exceed  the  period  of  60  days. 

I  B  4.  Under  the  provision  of  section  4  of  the  act  of  March  3, 
1883  (22  Stat.,  563),  relating  to  absences  of  clerks  of  the  departments, 
such  a  clerk,  when  absent  without  leave,  whether  sick  or  well,  for- 
feited his  pay  for  the  period  of  absence.  Where  a  clerk  of  the  War 
Department,  who  had  been  absent  without  leave,  produced,  to 
account  for  his  absence,  a  surgeon's  certificate,  held  that  such  certifi- 
cate did  not  per  se  operate  to  restore  pay,  but  that  it  was  in  the  dis- 
cretion of  the  Secretary  of  War  to  accept  or  not  such  certificate  and 
ratify  the  absence  as  authorized;  that  unless  he  should  do  so  the  pay 
would  remain  forfeited.  ^  P.  57,  231,  Jan.,  1893.'' 

1  C  1.  Where  an  application  was  made  for  the  detail  of  a  clerk  on 
duty  in  the  War  Department  to  instruct  the  battaHon  of  cadets  of 
the  Washington  High  School  six  hours  each  week,  without  deduction 
of  time  or  pay  being  made  against  him,  held  that  the  Secretary  of 
War,  in  the  absence  of  a  statute  authorizing  such  a  detail,  was  without 
power  to  make  it.     P.  45,  495,  Mar.,  1891.^ 

^  See  circulars,  War  Department,  dated  Dec.  2  and  3,  1898.     22  Op.  Atty.  Gen.,  255. 

2  Leaves  to  clerks  in  the  executive  departments  are  governed  by  sec.  7,  act  of  Mar. 
15, 1898  (30  Stat.  316),  and  sec.  4,  act  of  Feb.  24,  1899  (30  Stat.  890).  See  also  War 
Dept.  circulars  of  Aug.  5,  1899,  and  May  25,  1900. 

3  While  the  foregoing  decision  is  based  on  sec.  4  of  the  act  of  Mar.  3,  1883  (22  Stat. 
563),  it  is  equally  apposite  to  the  law  as  it  stands  to-day.  (Sec.  7,  act  of  Mar.  15,  1898, 
30  Stat.  316.)  J      \  ^ 


228  CIVILIAN   EMPLOYEES   I   C   2. 

I  C  2.  Held  that  there  was  no  author! t}^  of  law  for  grantmg  to  a 
clerk  in  the  Kecord  and  Pension  Office  an  indefinite  leave  of  absence 
without  pay,  to  cover  his  absence  as  an  officer  of  United  States  Vol- 
unteers.    6.  4129,  May  16,  1898. 

I  C  3.  Held  that  time  lost  by  employees  of  arsenals,  gun  factories, 
etc.,  of  the  Ordnance  Department  due  to  lay-offs  by  the  proper  officer 
of  the  Department,  does  not  interrupt  the  continuity  of  service  for 
leave  of  absence  within  the  operation  of  the  act  of  February  1,  1901 
(31  Stat.,  746).     G.  11608,  July  1,  1908,  Nov.  18,  1910. 

I  C  4.  Where  employees  of  the  Quartermaster's  Department  at 
large  are  absent  on  annual  leave  with  pay,  lield,  that  it  is  a  proper 
expenditure  of  funds  of  that  department  to  procure  the  services  of 
temporary  employees  to  replace  them.     C.  20069,  July  17,  1900. 

I  D  1.  By  the  joint  resolution  of  Congress  of  January  6,  1885,  it 
was  provided  that  the  "per  diem  employees"  of  the  United  States 
should  be  allowed  certain  days  as  holidays,  namely,  January  1,  Feb- 
ruary 22,  July  4,  and  December  25,  together  with  ''such  days  as 
may  be  designated  by  the  President  as  days  for  national  thanksgiv- 
ing," and  should  receive  the  same  pay  for  those  days  as  for  other 
days.  Held,  that  while  such  employees  might  be  allowed  by  the 
the  Secretary  of  War  to  enjoy  the  Saturday  half  holiday  established 
at  New  Orleans  by  a  statute  of  Louisiana,  they  could  not,  if  taking 
the  holiday,  legally  be  paid  for  such  time.     P.  62,  31,  Oct.  12,  1893. 

I  D  2.  Where  per  diem  employees  have  been  present  for  duty 
either  before  or  after  a  holiday,  but  not  present  both  before  and  after, 
being  absent  a  day  or  more  either  prior  or  subsequent  thereto,  they 
are  entitled  to  be  paid  for  such  holiday,  unless  their  employment  was 
terminated  the  day  before  or  began  the  day  following  it;  in  which 
cases  they  would  not  be  employees  of  the  United  States  at  the  time 
of  the  holiday.  C.  5879,  Feb.  17,  1899;  16558,  July  8,  1904;  20358, 
Sept.  13,  1906;  23607,  July  15,  1908;  1^290,  Aug.  23,  1911. 

I  D  3.  Pay  shall  be  allowed  per  diem  employees  for  the  dates 
specified  in  the  Joint  resolution  of"  January  6,  1885  (23  Stat.,  516), 
VIZ,  January  1,  February  22,  July  4,  and  December  25,  other  than 
July  4,  only  when  those  dates  do  not  fall  on  Sunday.  Pay  shall  be 
allowed  to  per  diem  employees  under  the  joint  resolution  of  February 
23,  1887  (24  Stat.,  644),  for  the  day  celebrated  as  ''Memorial"  or 
"Decoration"  Day  and  also  for  the  day  celebrated  as  the  "Fourth  of 
July."     C.  17645,  Mar.  10,  1905. 

ID  4.  Per  diem  employees  suspended  and  not  at  work  during  a 
period  which  includes  a  holiday  are  not  entitled  to  pay  for  the  holi- 
day,    a  1668,  Aug.  21,  1895. 

I  D  5.  Employees  who  work  on  a  holiday  can  not  be  given  double 
pay  for  such  service  in  the  absence  of  a  statute  expressly  authorizing 
the  same.     C.  4335,  June  16,  1898;  15979,  Feb.  25,  1904. 

I  D  6.  A  joint  resolution  of  Congress  approved  February  23,  1887 
(24  Stat.  644),  pro vides  ^ '  that  all  per  diem  employees  of  the  Govern- 
ment on  duty  at  Washington  or  elsewhere  shall  be  allowed  the  day 
of  each  year  which  is  celebrated  as  'memorial'  or  'Decoration  Day,' 
and  the  Fourth  of  July  of  each  year,  as  hohday  and  shall  receive  the 
same  pay  as  on  other  days."  A  per  diem  employee  of  the  Government 
at  West  Point,  N.  Y.,  having  been  refused  pay  for  the  Fourth  of 
July,  submitted  a  claim  therefor.  Held,  that  under  the  joint  resolu- 
tion quoted,  the  claim  was  a  valid  one,  that  the  resolution  was  not 


CIVILIAN  EMPLOYEES  I  D  7   R.  229 

limited  as  to  place  to  the  city  of  Washington  nor  as  to  per  diem 
em|)ioyees  or  to  permanent  ones.     P.  61,  125,  Aug.  16,  1893. 

I  D  7  a.  On  January  19,  1893,  the  President  proclaimed  that  on 
the  day  (January  20)  of  the  funeral  of  ex-President  Hayes,  all  public 
business  in  the  departments  should  be  suspended.  This  not  being 
one  of  the  days  included  as  public  holidays  by  the  joint  resolution 
of  January  6,  1885,  lield  that  the  'per  diem  employees  at  the  Watervliet 
Arsenal  were  not  entitled  to  be  paid  for  that  day.  P.  67,  Ii.2I^, 
Feh.,  1893. 

I  D  7  b.  Wliere  the  question  was  raised  as  to  whether  certain 
employees  paid  by  the  day,  could  be  paid  for  two  days  on  which 
public  work  was  suspended,  by  a  War  Department  order,  in  con- 
sequence of  the  death  of  a  President  of  the  United  States,  Tield,  that 
employees  who  were  employed  and  paid  by  the  day,  although  they 
may  have  been  thus  employed  for  some  time,  would  not  be  entitled 
to  pay  for  the  days  in  question  on  wliich  they  did  no  work;  but  that 
all  the  employees  who  were  employed  for  delimte  periods  longer  than  a 
day,  or  for  indefinite  periods,  although  their  compensation  be  meas- 
ured by  the  day,  are  entitled  to  pay  for  these  days,  if  they  happened 
during  such  employment.^  C.  11301,  Oct.  31,  1901.  See  also  P. 
57,  424,  Feb.,  1893. 

II  A.  It  is  well  established  that  the  pay  of  a  civilian  employee 
can  not  be  stopped  to  liquidate  a  private  indebtedness  to  an  enlisted 
man.     C.  26835,  July  21,  1910. 

II  B.  Held,  that  the  commanding  officer  of  an  arsenal,  as  repre- 
senting the  United  States,  has  the  power  to  withhold  from  the  pay 
of  an  employee  of  the  arsenal,  the  amount  necessary  to  make  good 
damage  to  Government  property  due  to  the  neglect  of  the  employee. 
C.  18064,  ^<iy  H,  i905. 

II  C.  Held,  that  when  hospital  charges  due  to  the  United  States 
from  civilian  employees  have  not  been  voluntarily  paid,  they  may 
be  collected  from  any  sums  subsequently  found  to  be  due  to  such 
employees  on  account  of  services  rendered  to  the  United  States. 
C.  20613,  Mar.  5,  1910.  ... 

II  D.  Held,  that  a  civil-service  clerk  who  was  discharged  from 
one  office  and  later  reinstated  and  assigned  to  another  office  might 
after  such  reassignment  have  his  pay- stopped  to  make  good  certain 
days  of  absence  in  excess  of  30  discovered  to  have  been  taken  while 
serving  under  the  first  appointment.     C.  821,  Jan.  3,  1896. 

III  A.  On  the  question  as  to  whether  officers  of  the  Army  and 
civil  employees  of  the  military  establishment  should  be  called  upon 
for  jury  duty,  to  work  upon  the  roads  of  the  State,  Territory,  or 
district  in  which  they  may  be  stationed,  etc.  Semhle  to  this  office, 
in  view  of  their  required  duty  to  the  United  States,  that  they  should 
not,  but  held  that  the  question  was  one  for  the  courts  to  determine 
in  each  case.^     C.  8229,  Sept.  2,  1902;  13513,  Oct.  22,  1902,  July  24, 

1 VIII  Comp.  Dec,  219,  id.,  235. 

^  In  Pundt  V.  Pendleton,  167  Fed.  Rep.  1003,  a  case  involving  habeas  corpus  pro- 
ceedings in  relation  to  a  teamster  in  military  employment  at  Fort  Oglethorpe,  who 
had  been  imprisoned  by  a  State  court  for  failure  to  comply  with  the  State  law  requir- 
ing work  upon  the  roads,  the  court  said:  "I  believe  Pundt  is  exempt  from  this  road 
duty  *  *  *  because  of  the  fact  that  he  is  a  necessary  instrumentality  in  that 
portion  of  the  United  States  Army  stationed  at  Fort  Oglethorpe,  and  that  he  is  such 
an  important  and  necessary  part  of  the  military  establishment  as  that  the  State  and 
the  County  of  Catoosa  has  no  right  to  call  on  him  to  be  absent  from  the  fort  when  such 


230  CTVILIAK   EMPLOYEES  IV  A. 

1905;  20390,  Sept  17,  1906,  Apr.  25, 1908,  Dec.  5, 1908,  and  Apr.  19, 
1910;  20327,  Mar.  14,  1910,  Sept.  24,  1910,  and  Oct.  1,  1910. 

IV  A.  Where  a  clerk  in  the  office  of  the  Secretary  of  War  was  sum- 
moned as  a  witness  to  Alexandria,  Va.,  necessitating  his  absence  from 
duty  for  one  day,  held  that  his  request  that  he  be  given  leave  with 
pay  for  this  time  without  having  the  same  charged  against  his  annual 
leave  must  be  denied.  The  act  of  March  15,  1898  (30  Stat.,  316), 
provides  for  30  days'  leave  only  in  one  year  for  clerks  and  employees 
of  the  executive  departments  and  for  an  extension  of  this  leave  to  60 
days  in  the  case  of  sickness  and  certain  other  contingencies.  Had 
the  clerk  been  required  as  a  witness  for  the  United  States  he  would  be 
considered  to  have  been  on  duty  and  under  pay,  but  this  can  not  be 
held  where  he  was  absent  in  a  proceeding  in  which  the  United  States 
was  not  a  party.     C.  20390,  Feb.  20,  1909. 

IV  B.  A  civil  employee  not  coming  within  the  purview  of  the 
act  of  March  15,  1898  (30  Stat.,  316),  is  entitled  to  his  pay  while 
absent  in  attendance  as  a  witness  upon  a  State  court.*  0.  17968, 
May  16,  1905. 

V  A.  Members  of  the  crew  of  a  transport  are  civilian  employees  and 
are  amenable  to  the  same  laws  as  are  merchant  seamen.  C.  28492, 
Sept.  12,  1911. 

V  B.  Superintendents  of  national  cemeteries  are  civil  officers  of 
the  United  States  in  the  sense  that  the  several  incidents  of  the  office 
of  superintendent  are  established  by  law.  They  form  no  part  of  the 
military  establishment,  however,  and  for  that  reason  are  not  entitled 
to  any  of  the  allowances  which  are  furnished  to  officers  and  enlisted 
men  in  conformity  to  law  and  regulations.     C.  9393,  Dec.  8,  1906. 

V  C.  Held  that  the  position  of  master  machinist  at  the  Springfield 
Arsenal,  conferred  by  the  appointment  of  the  commanding  officer,  was 
not  properly  a  Federal  office,  but  an  employment  simply,  so  that,  upon 
the  appointee  being  elected  a  member  of  the  school  committee  and  of 
the  Board  of  Water  Commissioners  of  Springfield,  he  could  not  be  said 
to  come  within  the  application  of  the  Executive  order  of  January  28, 
1873,  declaring  that  persons  holding  Federal  office  should,  if  accept- 
ing State,  Territorial,  or  municipal  office,  be  deemed  to  vacate  and 
resign  the  Federal  office.  R.  36,  223,  Feb.,  1875;  G.  14795,  Dec.  16, 
1908. 

VI  A.  On  the  question  of  whether  a  draftsman  in  the  classified 
civil  service  could  accept  from  a  foreign  Government  an  appointment 
as  vice  consul,  there  being  no  salary  attached  to  the  office,  Tield  that 
he  could  not  do  so.     C.  14795,  May  8,  1907. 

VI  B.  Wliere  a  clerk  in  the  Quartermaster's  Department  at  Large 
accepted  the  office  of  alderman,  held  that  his  doing  so  was  a  violation  of 

absence  would  interfere  with  the  proper  discharge  of  his  duties  as  a  necessary  and 
important,  even  if  an  humble,  part  of  the  Army  of  the  United  States." 

In  U.  S.  V.  Naylon,  an  unreported  case  determined  in  the  district  court  of  Alaska 
(Div,  No.  1),  in  July,  1906,  in  which  the  defendant  demurred  to  an  indictment  for 
failure  to  render  service  under  the  road  law  of  Alaska,  the  court  said  in  sustaining 
the  demurrer:  ''There  can  be  no  doubt  that  a  civilian  employee  of  the  Army  who 
resides  within  the  bounds  of  and  upon  a  military  reservation,  falls  within  the  sixth 
exemption  as  set  forth  above  (those  who  do  not  reside  within  the  precinct),  and  hence 
is  not  subject  to  the  road  tax.  It  is,  I  think,  equally  beyond  question  that,  owing 
to  his  peculiar  status,  a  civilian  employee  of  the  Army  is  not  within  the  provisions 
of  the  statute." 

1  XIII  Comp.  Dec,  211. 


CIVILIAN   EMPLOYEES  VI   C.  231 

theExecutiveordersof Januaiyl7,1873.  C.  14795, June  15,1903.  So, 
also,  in  the  case  of  a  clerk  in  the  Subsistence  Department  who  was 
nominated  for  the  position  of  city  attorney.     C.  14795,  Mar.  4, 1910. 

VI  C.  There  is  nothing  in  the  United  States  statutes  or  Army 
Regulations  which  prohioits  a  quartermaster  employee  (post  engi- 
neer) from  accepting  the  office  of  member  of  a  city  council.  0.  5023, 
Sept  21, 1898. 

VII  A.  A  clerk  in  the  employ  of  the  Government,  who  is  also  a 
notaiy  public,  is  not  precluded  by  reason  of  his  employment  as  such 
clerk  from  receiving  the  statutory  fees  from  parties  wno  may  secure 
his  services  as  notaiy  in  the  execution  of  contracts  with  the  Govern- 
ment.    C.  167,  Aug.  18,  1894.^ 

VIII  A.  In  view  of  the  requirements  of  the  act  of  August  5,  1882 
(22  Stat.,  255),  it  is  forbidden  to  detail  an  enlisted  man  for  clerical 
duty  in  the  Quartermaster's  Department.  Otherwise,  however,  as 
to  the  detail  of  an  enUsted  man  in  the  office  of  the  Chief  of  Artillery, 
which  is  no  part  of  the  War  Department.     C.  22133,  Sept.  24.  1907. 

VIII  B.  A  clerk  appointed  under  the  act  of  Congress,  approved 
August  G,  1894,  is  not  eligible  under  existing  law  and  regulations  for 
appointment  as  a  post  noncommissioned  staff  officer.  U.  2034,  Feb. 
3,  1896. 

VIII  C.  Held,  in  view  of  the  wording  of  the  appropriation  act,  that 
one  of  the  clerks  provided  for  the  headquarters  of  divisions  and 
departments  and  the  office  of  the  Chief  of  Staff  may  be  assigned  to 
duty  with  the  Artillery  Board  at  Fort  Monroe.  The  restriction  is  to 
the  assignment  of  such  clerks  to  duty  in  the  several  bureaus  in  the 
War  Department.     C.  19058,  Jan.  16,  1906. 

IX  A.  There  is  no  precedent  for  allowing  the  travefing  and  other 
legitimate  expenses  of  the  personal  clerk  of  an  officer  ordered  before 
a  court  of  inquiry.  If  he  be  a  material  witness,  he  may  of  course  be 
subpoenaed  as  such  and  be  paid  the  legal  witness  fees.  P.  57,  196, 
Jan.,  1893. 

IX  B.  Transportation  requests  were  issued  by  the  Quartermaster 
Department  to  ^ve  postal  clerks,  also  requests  for  one  double  berth 
each  in  sleeping  car,  from  Washington,  D.  C,  to  Tampa,  Fla.,  on  a 
verbal  order  from  the  Assistant  Secretary  of  War,  the  nature  of  the 
journey  being  ''for  duty  with  troops  in  the  field."  Held  that  the 
accounts  could  legafiy  be  paid  from  the  appropriation  for  Army  trans- 
portation.    C.  6927,  Sept.  9, 1899. 

X  A.  In  construing  statutes  (sees.  1763-1765,  R.  S.)  restraining 
the  Executive  from  giving  dual  or  extra  compensation,  courts  have 
aimed  to  carry  out  the  legislative  intent  by  giving  them  sufficient  flexi- 
bility not  to  injure  the  public  service  and  sufficient  rigidity  to  prevent 
executive  abuse .^  These  statutes  can  by  no  fair  interpretation  be  held 
to  embrace  an  employment  which  has  no  affinity  or  connection,  either 
in  its  character  or  by  law  or  usage,  with  the  line  of  his  official  duty, 
or  where  the  service  to  be  performed  is  of  a  different  character  and 
for  a  different  place  and  the  amount  of  compensation  is  regulated  by 
law.^     Taking  the  sections  all  together,  the  purpose  of  the  legislation 

^  See,  however,  War  Department  order  (A),  Jan.  3,  1905. 

2  Landram  v.  United  States,  16  Ct.  Cls.,  74,  82. 

3  Converse  v.  United  States,  21  How.,  463,  470,  473;  United  States  v.  Brindle,  110 
U.  S.  688,  694;  United  States  i;.  Shoemaker,  7  Wall.,  338;  Meigs  v.  United  States, 
19  Ct.  Cls.,  497;  15  Op.  Atty.  Gen.,  608. 


232  CIVILIAN   EMPLOYEES   X  B. 

was  to  prevent  a  person  holding  an  office  or  appointment  for  which 
the  law  provides  a  definite  compensation  by  way  of  salary  or  other- 
wise, which  is  intended  to  cover  all  the  services  which,  as  such  officer, 
he  may  be  called  upon  to  render,  from  receiving  extra  compensation, 
additional  allowance,  or  pay  for  other  services  which  may  be  required 
of  him  either  by  act  of  Congress  or  by  order  of  the  head  of  his  depart- 
ment, or  in  any  other  mode,  added  to  or  connected  with  the  regular 
duties  of  the  place  which  he  holds;  but  that  they  have  no  application 
to  the  case  of  two  distinct  offices,  places,  or  employments,  each  of 
which  has  its  own  duties  and  its  own  compensation,  which  offices  may 
be  held  by  one  person  at  the  same  time.  In  the  latter  case  he  is,  in 
the  eye  or  the  law,  two  officers  or  holds  two  places  or  appointments, 
the  functions  of  which  are  separate  and  distinct,  and  according  to  all 
the  decisions  he  is  in  such  case  entitled  to  recover  the  two  compen- 
sations. In  the  former  case  he  performs  the  added  duties  under  his 
appointment  to  a  single  place,  and  the  statute  has  provided  that  he 
shaU  receive  no  additional  compensation  for  that  class  of  duties  unless 
it  is  so  provided  by  special  legislation.^  Where,  therefore,  the  disburs- 
ing clerk  of  the  War  Department  (salary,  $2,000)  performed  certain 
clerical  duties  for  the  Gettysburg  National  Park  Commission,  which 
were  separate  and  distinct  from  his  duties  as  such  disbursing  clerk,  it 
was  held  that  he  could  legally  be  paid  for  such  extra  services  from  the 
appropriation  for  the  Gettysburg  National  Park.  C.  3747,  Bee.  29, 
1897;  10U6,  May  22,  1901;  11026,  Seft  7,  1901;  12629,  May  28, 
1902;  21852,  Aug.  16,  1907. 

X  B.  The  appropriation  act  approved  August  6,  1894,  provides 
expressly  that  the  clerks  and  messengers  provided  for  by  it  ''shall  be 
employed  and  apportioned  to  the  several  headquarters  and  stations  by 
the  Secretary  or  War. ' '  Held  that  they  are  each  to  be  employed  by 
the  Secretary  of  War  at  a  particular  specified  salary,  and  that  depart- 
ment commanders  have  no  power  to  discharge  any  of  them  or  to 
increase  or  reduce  their  salaries.     G.  380  Sept.  25, 1894. 

X  C.  Upon  an  application  by  a  clerk  of  a  bureau  of  the  War  Depart- 
ment to  be  paid  an  amount  in  addition  to  his  regular  salary,  as  a  com- 
pensation for  services  performed  by  him  for  a  certain  period  as  acting 
chief  clerk,  lield,  in  view  of  the  provisions  of  sections  1764  (and  1765), 
R.  S.,  that  such  additional  compensation  could  not  be  allowed  except 
by  the  authority  of  Congress."'    R.  39,  643,  Aug.  1878. 

XI  A  1.  On  the  question  of  whether  the  resignation  of  an  employee 
could  be  accepted  to  take  effect  upon  the  last  day  he  worked,  although 
that  day  might  be  of  a  date  prior  to  that  upon  which  the  resignation 
was  accepted,  held  that  it  could,  as  the  acceptance  of  such  resignation 
merely  amounts  to  a  declaration  of  the  fact  that  the  employee  sepa- 
rate himself  from  the  service  by  resignation  on  such  prior  date.  C. 
18445,  Aug.  18,  1905. 

XI  A  2.  Where  a  civilian  accepted  Government  employment  as 
a  clerk,  there  being  no  understanding  as  to  the  tenure  of  office, 
Jield  that  the  clerk  had  a  right  to  resign  when  he  saw  fit  and  that  his 
abandonment  of  the  service,  on  a  refusal  to  forward  his  resignation  for 

1  United  States  v.  Saunders,  120  U.  S.,  126, 129, 130;  V  Comp.  Dec,  9;  6  id.,  683. 

2  Compare  Hoyt  v.  United  States,  10  Howard,  109;  United  States  v.  Shoemaker,  7 
Wallace,  338;  Stansbury  v.  United  States,  8  Wallace,  33. 


CIVILIAN   EMPLOYEES  XI  A  3.  233 

acceptance  is  no  legal  ground  for  withholding  his  pay.  C.  11800 ^ 
Dec.  20,  1901;  I48I4,  June  18,  1903;  18U5,  Aug.  18,  1905. 

XI A  3.  Held,  that  the  rule  in  regard  to  the  acceptance  of  the  resig- 
nation of  a  clerk  is  similar  to  that  governing  the  resignation  of  officers 
of  the  Army,  and  that  **  after  due  notice  of  the  acceptance  has  been 
communicated,  there  can  of  course,  be  no  withdrawal  of  the  tender 
or  revocation  of  the  acceptance."     C.  18318,  July  18,  1905. 

XI  A  4.  Where  an  employee  (civil  service)  who  had  displayed 
political  activity  and  was  under  investigation  therefor,  as  having 
violated  the  civil-service  rules,  tendered  his  resignation  to  take 
effect  inmiediately,  held,  that  the  resignation  should  not  be  accepted, 
but  the  employee  dismissed  for  violating  the  civil-service  rules. 
C.  27007,  July  I4,  1910. 

XI  B  1 .  Held,  that  the  ultimate  discharge  of  a  civil  employee  as  of 
the  date  of  his  suspension  is  lawful.     C.  20297,  Aug.  29,  1906. 

XI  B  2.  A  clerk  was  discharged  for  cause.  He  applied  for  permis- 
sion to  resign.  Held  that  the  discharge  had  been  executed  and  could 
not  be  revoked,  and  that  to  substitute  a  permission  to  resign  for  the 
discharge  would  be  to  substitute  something  that  did  not  happen  for 
what  actually  happened,  and  therefore  to  make  a  false  record.  C. 
3976,  Mar.  29,  1898;  15767,  Jan.  12,  1904. 

XI  B  3.  A  clerk  in  the  Insular  Bureau  was  discharged.  Held 
that  it  is  well  settled  that  a  legally  executed  discharge  is  beyond 
recall  and  that  mere  mistake  on  the  part  of  the  officers  in  recommend- 
ing or  issuing  the  discharge  will  not  justify  its  revocation.  C.  15767, 
Jan.  12,  1904. 

XII  A.  Prior  to  the  enactment  of  the  act  of  May  30,,  1908  (35  Stat. 
556),  no  payments  could  lawfully  be  made  to  civil  employees  for 
damages  for  personal  injuries,  or  for  medical  or  surgical  expenses, 
out  of  the  appropriation  for  the  work  in  which  the  injured  man  was 
engaged,^  unless  medical  or  surgical  treatment  was  provided  for  in 
his  contract  of  employment;  in  cases  arising  subsequent  to  May 
30,  1908,  where  bills  for  the  rehef  of  injured  employees  have  been 
referred  to  the  department  for  recommendation,  the  view  of  this 
office  has  been  that  the  relief  afforded  should  be  measured  by  the 
requirements  of  the  act  above  cited. ^     C.  23069,  Apr.  I4,  1908. 

XII  B  1.  In  view  of  a  letter  dated  June  30,  1910,  from  the  Secre- 
tary of  Commerce  and  Labor  in  which  the  section  of  the  act  of  May 
30,  1908  (35  Stat.  556),  which  provides  that  an  employee's  compen- 
sation shall  be  'Hhe  same  pay  as  if  he  continued  to  be  employed"  is 
construed  as  including  subsistence  in  cases  where  subsistence  was 
furnished  at  the  time  of  the  accident,  Tield,  that  this  interpretation 
settles  the  law  unless  it  be  reversed  by  the  courts  and  that  payment 
of  such  compensation  may  take  the  form  of  a  commutation  01  rations. 
a  23069,  July  18,  1910. 

^  I  Comp.  Dec,  62;  I  id.,  1881;  VI  id.,  955. 

2  The  act  of  May  30,  1908  (35  Stat.  556),  as  amended  by  the  acts  of  Feb.  24,  1909 
(35  Stat.  645),  and  of  Mar.  4,  1911  (36  Stat.  1452),  has  relation  to  persons  injured  in 
the  course  of  their  employment  by  the  United  States  as  artisans  or  laborers  in  any  of 
its  manu  facturing  establishments,  arsenals,  or  navy  yards,  or  in  the  construction  of 
river  and  harbor  or  fortification  work,  or  in  hazardous  employment  on  construction 
work  in  the  reclamation  of  arid  lands,  or  the  management  and  control  of  the  same,  or 
in  hazardous  employment  under  the  Isthmian  Canal  Commission. 


234  CIVILIAN  EMPLOYEES  XII  B  2. 

XII  B  2.  Held,  that  relief  could  not  be  granted  under  the  act  of 
May  30,  1908  (35  Stat.  556),  to  a  carpenter  who  was  injured  while 
working  on  a  bridge  acquired  in  connection  with  the  water  supply  for 
West  Point,  since  such  work  did  not  come  within  the  scope  fixed  by 
the  statute.     0.  23858,  Sept  17,  1908. 

XIII  A.  Held,  that  the  clerks  in  the  Quartermaster  Department 
who,  in  1862,  were  employed  as  an  armed  force  to  protect  public 
property  at  Washington,  and  to  assist  in  its  defense,  were  not  m  the 
military  service  proper,  but  remained  civilians.  The  mere  fact, 
therefore,  that  they  served  till  their  service  was  no  longer  required 
did  not,  at  the  end  of  that  time,  place  them  in  the  status  of  being 
''honorably  discharged"  in  the  sense  of  the  civil-service  rules  regu- 
lating appointments  to  civil  office.  P.  85,  871,  Oct.,  1889;  C.  I644I, 
June  9,  1904. 

XIII  B.  The  term  ''service  in  war"  as  used  in  the  uniform  regula- 
tions relates  to  service  as  an  officer  or  enlisted  man  in  the  military 
establishment  and  does  not  attach  to  the  status  of  a  civil  employee. 
a  17243,  Feb.  1,1905. 

XIV  A.  A  civil  employee  of  the  Quartermaster's  Department  does 
not  become  liable  as  a  deserter  by  abandoning  his  employment.^  R  50 
226,  Apr.,  1886. 

XV  A.  A  sailor  shipped  under  articles  which  provided  for  a  voyage 
to  a  distant  port  and  back  to  a  final  port  of  discharge  in  the  United 
States  and  contained  the  clause  that  all  those  who  are  discharged  at 
their  own  request  within  the  time  covered  by  the  articles  are  not  enti- 
tled to  be  discharged  at  a  port  in  the  United  States.  Held,  that  if  the 
seaman  is  discharged  by  voluntary  consent  before  a  consul  in  a  foreign 
port  he  shall  be  entitled  to  his  wages  up  to  the  time  of  his  discharge, 
but  not  for  any  further  period.  Further,  Tield,  that  unless  the  time  has 
expired  or  the  voyage  for  which  the  seaman  shipped  has  been  com- 
pleted he  should  not  be  discharged  in  a  foreign  port  where  he  is  liable 
to  become  a  pubUc  charge.     C.  2^054,  Nov.  12,  1908. 

XVI  A.  Inquiry  having  been  made  as  to  whether  a  clerk  of  the 
War  Department  who  was  treasurer  of  a  society  incorporated  under 
the  laws  of  the  District  of  Columbia  and  having  for  its  purpose  the 
making  of  personal  loans  to  employees  in  the  Government  service  at 
2  per  cent  per  month  came  within  the  provision  of  the  Executive 
order  of  April  13,  1911,  which  prohibits  the  loaning  of  money  at 
usurious  rates  of  interest  by  clerks  or  other  civilian  employees  in  or 
under  the  War  Department  or  the  military  establishment  either  as 
principal  or  agent,  directly  or  indirectly,  to  others  in  the  Government 
service,  held,  that  while  the  duties  which  devolved  on  the  clerk  as 
treasurer  of  the  society  are  not  indicated  there  can  be  no  doubt  that 
he  falls  within  the  language  "principal  or  agent"  engaged  ''directly 
or  indirectly"  in  making  the  loans.  That  the  loans  negotiated  by 
the  society  are  usurious  m  character  and  the  relation  to  them  of  the 
clerk  in  question,  as  treasurer  of  the  society,  brings  him  within  the 
prohibition  of  the  Executive  order.     C.  28028,  May  11,  1911. 

XVI  B.  Held,  that  under  the  exception  from  the  requirements  of 
the  civil  service  rules  regarding  examination  of  "one  driver  of  car- 
riage" for  the  "head  of  any  executive  department"  followed  by  the 
words  "and  such  other  drivers  of  carriages  as  may  from  time  to  time 

1  See  sec.  412  Digest  Second  Comp.  Treas.,  vol.  2,  1869-1884. 


CIVILIAN  EMPLOYEES — CLAIMS:   SYNOPSIS.  235 

be  authorized  by  competent  authorit}^"  permits  of  the  appointment, 
without  examination,  of  a  second  driver  for  the  Secretary  of  War. 
C.  132S8,  Mar.  1,  1911. 

Xyi  C.  The  act  of  March  9,  1906  (34  Stat.  56)  provided  an  appro- 
priation for  marking  the  graves  of  the  soldiers  and  sailors  of  the  Con- 
federate Army  and  Navy  who  died  in  northern  prisons,  etc.,  and 
placed  the  appropriation  under  control  of  the  Secretary  of  War.  A 
commissioner  appointed  under  the  act  to  carry  on  the  work  died 
while  in  office,  leaving  uncertified  vouchers  for  salary  due  the  clerk 
of  the  conmaissioner.  Ileldy  that  under  section  173  K.  S.,  the  chief 
clerk  of  the  War  Department  should  certify  the  vouchers.  C.  19834, 
Jan.  2,  1908. 

CROSS   REFERENCE. 

Batson^s  Squadron  of  Philippine  Cavalry.  .See  Insignia  op  Merit  III  B  3. 

Contract  dental  surgeon See  Army  I  G  3  d  (4)  (d). 

Contract  surgeon See  Army  I  G  3  d  (4)  (c). 

Debts  of See  Private  Debts  IX. 

Deserter  at  large See  Desertion  II  A. 

Forfeiture  of  pay See  Contracts  XXXIII. 

Forfeiture  of  pay  by  sentence  of  military 

court See  Appropriations  LXVI. 

Hot  Springs  Hospital See  Army  I  G  3  d  (7)  (a)  [1]. 

Insane,  disposition  of. See  Insanity  I  C 

Medical  care  of See  Laws  I  B  9 ; 

Appropriations  XLV. 

Military  hospital,  patient  in See  Laws  II  A  1  e  (1). 

Pensionable  status  of  Macabebe  Scouts See  Pensions  I  A  1. 

Prisoner  of  war See  War  I  C  11  c  (1). 

Quartermaster's  volunteers,  1864 See  Volunteer  Army  II  F  1  b  (3). 

Retainers  to  the  camp See  Articles  op  War  LXIII  A. 

Retired  soldier  as See  Retirement  II  E  1. 

Retirement See  III  to  IV. 

Road  tax  or  work See  Territories  III  G  1. 

Service  as,  under  act  of  April  23,  1904  (SS 

Stat. ,  264) See  Retirement  I  C  1  c. 

Service  in  militia See  Militia  XVI  E. 

Soldier  cooks  for See  Articles  op  War  XXI  B  2. 

Supplies  purchased  from See  Contracts  XV  A  3. 

Taxation  of. See  Tax  II. 

Telegraph  lines,  work  on See  Appropriations  LVI. 

CIVIL  OFFICE. 

Holding  of,  by  Army  officer See  Office  IV  A  to  B. 

Holding  of,  by  Volunteer  officer See  Office  V  A  7  d  to  e. 

Holding  of ,  by  enlisted  man See  Army  I  E  3a(l);  b;  b  (1). 

Holding  of ,  by  civilian  employee See  Civilian  employees  VI  to  VII. 

In  Philippine  Constabulary See  Command  I  C. 

Positions  which  are  not See  Office  IV  A  2  e  to  f ;  B  to  C. 

Superintendent  of  national  cemetery See  Civilian  employees  V  B. 

CIVIL  SERVICE. 

Enforcement  of  discipline  in See  Articles  of  War  LXIII  C. 

CLAIMS.! 

I.  HEAD  OF  DEPARTMENT  HAS  NO  AUTHORITY  TO  REOPEN  A  CLAIM 

ONCE  SETTLED Page  238 

n.  EXECUTIVE  AND  ACCOUNTING  OFFICERS  HAVE  NO  AUTHORITY 
TO  CONSIDER,  FOR  UNLIQUIDATED  DAMAGES Page  240 

^  Prepared  by  Maj.  H.  M.  Morrow,  judge  advocate,  assistant  to  Judge  Advocate 


'  rrep£ 
General, 


236  claims:  synopsis. 

m.  CLAIMS  AGAINST  U.  S.  DO  NOT  BEAR  INTEREST Page  242 

IV.  UNITED  STATES  NOT  LIABLE  FOR  TORTS  OF  ITS  OFFICERS,  SOL- 
DIERS, OR  OTHER  AGENTS. 
V.  UNITED  STATES  NOT  LIABLE  FOR  ACT  OF  AN  AGENT  WHICH  IS 

NEITHER  UNLAWFUL  NOR  NEGLIGENT Page  246 

VI.  SALVAGE  AND  CLAIMS  FOR  GENERAL  AVERAGE  CONTRIBUTION. 

A.  Military  Salvage Page  247 

B.  Public   Property   Subject  to   Claim   for  Salvage   and   General 

Average. 

C.  Where  Private  Property  of  Officer  Shipped  at  Government  Ex- 

pense Becomes  Subject  to  General  Average  Contribution,  such 
Contribution  Should  be  Paid  by  the  Officer,  Not  by  the  Gov- 
ernment    Page  248 

D.  If  Acting  Beyond  Requirements  of  Official  Duty,  Soldiers  May 

Become  Entitled  to-  Salvage Page  249 

E.  Property  Cast  on  Shore  of  Military  Reservation  Becomes  Prop- 

erty OF  United  States  and  No  One  is  Entitled  to  Salvage. 

F.  Vessel  being   Constructed   under   Contract  Provision   that   It 

Becomes  Property  of  United  States  as  Rapidly  as  Partial  Pay- 
ments ARE  Made  Can  Not  be  Subject  of  Admiralty  Lien. 
Vn.  WAR  CLAIMS. 

A.  What  Constituted  Loyalty  of  Natives  During  Philiipine  Insur- 
-   rection. 

B.  Military  Necessity. 

1.  Where  Government  offers  to  compensate  owner  for  private  property- 

seized  as  military  necessity  will  pay  value  only  without  profit  to 
owner Page  250 

2.  Rule  of  nonliability  of  Government  for  torts  of  its  oflBcers  is  not 

affected  by  the  fact  that  person  against  whom  tort  was  committed 
was  American  sympathizer. 

3.  Construction  paragraphs  15  and  38,  G.  O.  100,  1863,  relating  to  seiz- 

ure and  destruction  of  property  on  account  of  military  necessity. 

4.  Government  not  liable  for  damage  accidentally  resulting  from  de- 

struction of  property  as  military  necessity Page  251 

5.  Instructions  of  President  directing  that  private  property  taken  for 

Army  be  paid  for,  and  forbidding  retention  of  private  property 
under  certain  circumstances,  do  not  supersede  the  laws  of  war 
authorizing  the  seizure  of  private  property. 

6.  Where  forces  of  several  nations  operating  jointly  against  common 

enemy  and  one  furnishes  transportation  to  the  other  reimburse- 
ment should  be  made Page  252 

C.  Occupation  of  Property  by  Troops. 

1.  No  obligation  to  pay  rent  for  occupation  of  public  property. 

2.  No  compensation  due  for  occupation  of  property  in  the  actual  train 

of  war. 

3.  Obligation  to  pay  rent  for  use  of  private  property  occupied  dependent 

on  loyalty  of  owner. 

4.  Government  not  liable  to  reimburse  owner  of  private  property  occu- 

pied by  United  States  troops  because  premises  destroyed  by 
reason  of  the  owners  being  American  sympathizers Page  253 

D.  United  States  Not  Liable  for  Private  Property  Destroyed  as  an 

Incident  to  Military  Operations. 

E.  United  States  Not  Liable  for  Value  of  Material  in  Buildings 

Torn  Down  to  Make  Public  Improvements  While  Country  Under 
Military  Occupation. 


claims:  synopsis.  237 

Vn.  WAR  CLAIMS- Continued. 

F.  Steam  Launch  Captured  by  the  Army  in  Enemy  Territory  During 

Philippine  Insurrection  Not  a  Maritime  Capture  and  Complete 
Ownership  Passes  to  United  States. Page  254 

G.  Claims  for  Property  Taken  from  Loyal  Citizens  During  Civil  War 

Barred  by  Statute  of  Limitations. 
Vm.  CLAIMS  BASED  ON  MEDICAL  SERVICE  RENDERED  OFFICER  OR 
SOLDIER. 
IX.  CLAIMS  OF  SOLDIERS  FOR  PROPERTY  TAKEN  FROM  THEIR  POS- 
SESSION  BY  MILITARY  PERSONS  WHILE   SICK  IN   HOSPITAL, 

CONFINED  IN  GUARDHOUSE,  ETC Page  255 

X.  SECTION  5498,  R.  S.,  AS  TO  OFFICER  ACTING  AS  ATTORNEY  IN 

PROSECUTION  OF  CLAIM  AGAINST  UNITED  STATES Page  256 

XI.  PARAGRAPH  838,  A.  R.  1910,  AS  TO  PERSON  IN  MILITARY  SERVICE 
PROVIDING    INFORMATION    WHICH   CAN    BE   MADE    BASIS    OF 
CLAIM  AGAINST  GOVERNMENT. 
Xn.  MISCELLANEOUS. 

A.  Claims  Growing  Out  of  Civil  War Page  257 

B.  United  States  Not  Liable  for  Use  op  Vessel  During  San  Fran- 

cisco Earthquake  by  Army  Officers  While  Acting  in  Capacity 
of  Relief  Agents. 
r       C.  United  States  Not  Liable  fob  Services  of  Counsel  for  Defendant 
Before  a  Court-Martial. 

D.  United  States  Not  Liable  for  Time,  Cost,  and  Expenses  of  Civilian 

Witness  Before  Court-Martial  in  Collecting  His  Fee. 

E.  United  States  Not  Liable  to  Civilian  Who  Was  Arrested  as  a 

Deserter,  But  Was  Subsequently  Found  to  be  Innocent. 

F.  No  Law  Authorizing  Payment  of  Damages  on  Account  of  Injuries 

Received  in  Construction  of  Public  Buildings  or  River  and 
Harbor  Improvements Page  258 

G.  Section  1304,  R.  S.,  as  to  Deduction  from  Pay  op  Army  Officers  on 

Account  of  Deficiency. 

H.  United  States  Not  Liable  to  a  Person  Cashing  a  Final  Statement 
of  a  Soldier  Which  Has  Been  Given  Him  Erroneously. 

I.  United  States  Not  Liable  for  Private  Property  of  a  Contract 
Nurse  Because  of  Sinking  of  a  United  States  Hospital  Ship. 

J.  United  States  Not  Liable  to  an  Officer  Whose  Allowance  op 
Personal  Baggage  Was  Being  Transported  at  Government 
Expense,  the  Baggage  Being  Broken  Into  and  Part  of  the  Con- 
tents Stolen. 

K.  United  States  Not  Liable  for  Registered  Mail  Package  Lost  on 
Army  Transport. 

L.  Extent  op  Liability  of  United  States  Where  Land  Leased  for 
Maneuver  Purposes. 

M.  Section  1876,  R.  S.,  Prohibiting  Employment  op  Attorney  at  Ex- 
pense OP  United  States. 

N.  United  States  Not  Liable  for  Attorney  Fees  for  Services  Ren- 
dered Soldier  in  Habeas  Corpus  Proceedings Page  259 

O.  United  States  Not  Liable  for  Fees  and  Expenses  op  Coroner  in 
Holding  Inquest  over  Deceased  Soldier. 

P.  Even  a  Just  Claim  Can  Not  be  Satisfied  by  Secretary  of  War 
Without  Authority  op  Congress. 

Q.  Method  of  Procedure  Where  Disbursing  Officer  Has  Lost  Funds 
and  Desires  to  Apply  To  Court  of  Claims  for  Relief. 


238  CLAIMS  I. 

Xn.  MISCELLANOUS— Continued. 

R.  United  States  Not  Liable  to  Officers  or  Soldiers  for  Private 
Property  Lost  or  Destroyed  While  Stored  in  a  Government 
Storehouse. 

S.  United  States  Not  Entitled  to  a  Horse  Purchased  from  Person 
Who  Had  No  Title Page  260 

T.  United  States  Not  Liable  to  Member  of  Court-Martial  for  Com- 
pensation FOR  Acting  as  Clerk  of  Court. 

I,  Under  the  law  and  practice  governing  the  executive  depart- 
ments a  head  of  a  department  is  held  in  general  not  to  be  empowered, 
without  specific  statutory  authority  for  the  purpose,  to  reopen  a  claim 
or  other  controversy  once  duly  settled  by  his  predecessor.  So  Tield, 
that  the  Secretary  of  War  would  not  be  empowered  to  reopen  and 
reconsider  a  claim  for  the  repayment  of  a  certain  sum  (paid  as  com- 
mutation money  by  a  party  who  claimed  to  have  been  illegally  drafted) , 
the  question  of  the  allowance  of  which  had  been  duly  considered  by  a 
former  Secretary  (under  a  statute  authorizing  him  to  repay  the  same 
if  deemed  to  be  justly  due),  and  had  been  unfavorably  determined 
10  years  before.  And  this  though  the  correctness  of  such  determina- 
tion was  considered  to  be  doubtful;  the  proper  recourse  of  the  claimant 
in  such  case  being  to  Congress.  R.  j^,  357,  July  11, 1879;  P.  42,  413, 
Aug.  27,  1890;  C.  687,  Dec.  10,  1894;  I4O8,  June  15,  1895.  So, 
where  the  Secretary  of  War  ^  refused  to  consider  a  claim  on  the  ground 
that  there  was  no  evidence  upon  which  action  could  be  taken,  the 
vouchers  having  been  lost,  lield,  that  a  succeeding  Secretary  was  with- 

^  The  reason  of  the  restricted  authority  (illustrated  under  this  title)  of  the  execu- 
tive department  in  the  allowance  of  claims  may  be  found  in  the  principle  of  public 
law,  as  expressed  by  Miller,  J.,  in  the  case  of  The  Floyd  Acceptances,  7  Wall.,  666, 
676 — that  ''in  our  structure  of  government  all  power  is  delegated  and  defined  by 
law:  *  *  *  We  have  no  officers,  from  the  President  down  to  the  most  subor- 
dinate agent,  who  does  not  hold  office  under  the  law,  with  prescribed  duties  and 
limited  authority."  U.  S.  -y.  Bk.  of  Metropolis,  15  Peters,  377;  Rollins  and  Presbrey 
V.  U.  S.,  23  Ct.  Cls.,  106,  and  cases  cited;  Waddell's  Case,  25  id.,  323;  9  Op.  Atty.  Gen., 
32;  12  id.,  355;  14  id.,  275;  15  id.,  192;  16  id.,  452;  1  Comp.  Dec.  193;  2  id.,  264,  401;  4 
id.,  303;  6  id.,  236,  245.  In  Rollins  and  Presbrey,  v.  U.  S.,  supra,  it  was  held,  quot- 
ing from  syllabus,  that  "any  public  officer  in  an  executive  department  may  correct 
his  own  errors  and  open,  reconsider,  or  reverse  any  case  decided  by  himself."  In 
delivering  the  opinion  of  the  court.  Chief  Justice  Richardson  said:  "It  has  long  been 
held  in  the  executive  departments  that  when  a  claim  or  controversy  between  the 
United  States  and  individuals  therein  pending  has  once  been  fully  considered,  and 
final  action  and  determination  had  thereon  by  any  executive  officer  having  jurisdic- 
tion of  the  same,  it  can  not  be  reopened,  set  aside,  and  a  different  result  ordered  by 
any  successor  of  such  officer,  except  for  fraud,  manifest  error  on  the  face  of  the  pro- 
ceedings, such  as  a  mathematical  miscalculation  or  newly  discovered  evidence,  pre- 
sented within  a  reasonable  time  and  under  such  circumstances  as  would  be  sufficient 
cause  for  granting  a  new  trial  in  a  court  of  law.  This  ruling  and  practice  of  the 
departments  has  been  approved  elsewhere  and  has  been  sustained  by  the  courts. 
(9  Op.  Atty.  Gen.,  34;  12  id.,  172,  358;  14  id.,  275,  387,  456;  15  Pet.,  401;  Lavalette's 
Case,  1  Ct.  Cls.,  147;  Jackson's  Case,  19  id.,  504;  State  of  Illinois  Case,  20  id.,  342;  McKee's 
Case,  12  id.,  560;  Day's  Case,  21  id.,  264,  and  the  opinion  of  the  Judiciary  Committee 
of  the  Senate,  reported  by  Senator  and  Judge  David  Davis,  quoted  in  Jackson's  Case 
above  referred  to.)  But  it  has  never  been  doubted  that  any  public  officer  in  the 
departments  may  correct  his  own  errors,  and  open,  reconsider,  and  reverse  in  whole 
or  m  part  any  case  decided  by  himself."  The  principles  above  stated  apply  fully  to 
accounting  officers  in  reference  to  the  acts  of  their  predecessors.  Heads  of  departments 
may  properly  reverse  constructions  placed  on  acts  of  Congress  by  their  predecessors, 
except  in  so  far  as  vested  rights  may  be  affected  thereby.  Haughton  v.  Payne,  194, 
U.S.,  99. 

See  Cir.  22,  W.  D.,  Apr.  18, 1910,  directions  regarding  the  method  to  be  followed  in 
filing  and  investigating  claims. 


CLAIMS  I.  239 

out  authority  to  consider  the  claim,  there  still  being  no  vouchers  or 
other  evidence.  P.  4^,  444j  Sept.  2,  1890.  So  held,  also,  where  the 
Secretary  of  War  had  made  a  decision  as  to  whether  a  certain  person 
was  entitled  to  a  medal  of  honor,  and  it  was  proposed  that  a  succeed- 
ing Secretary,  under  the  act  of  April  23,  1904  (33  Stat.,  274),  should 
reconsider  his  predecessor's  decision.  C.  16918,  Sept.  20,  1904.  So, 
also,  where  an  enlisted  man  was  retired  as  a  private  and  it  was  pro- 
posed that  a  succeeding  Secretary  of  War  should  reopen  the  case  and 
retire  the  soldier  as  a  noncommissioned  officer.  C.  2044^ j  Sept.  27, 
1906.  So  where  the  proceedings  of  a  court  of  inquiry  had  been  fully 
acted  on  by  the  President,  Tield  that  the  above  well-established  execu- 
tive procedure,  as  well  as  the  rule  that  the  power  to  review  such  pro- 
ceedings is  one  that  can  be  exercised  but  once  and  then  is  completely 
exhausted,  makes  the  proceedings  of  the  court  of  inquiry  immune  from 
further  revision.  C.  13244,  Sept.  2,  1902.  It  is  only  for  fraud,  lack 
of  jurisdiction,  manifest  error  on  the  face  of  the  proceedings  (an 
erroneous  calculation,  for  example),  or  newly  discovered  evidence  pre- 
sented within  a  reasonable  time  and  sufficient  to  warrant  a  new  trial 
at  law,  that  a  claim  or  controversy  finally  passed  upon  by  a  head  of  a 
department  may,  in  the  absence  of  specific  authority  from  Congress, 
be  reopened  by  a  successor.  P.  84,  225,  357,  Aug.  1  and  18,  1889; 
39,  28,  Feb.  20,  1890;  47,  228,  May  16,  1891;  58,  448,  May  20,  1892; 
54,  462,  Aug.  3,  1892;  58,  109,  Feh.  18,  1893.  But  any  public  officer 
may  correct  his  own  errors  and  reopen  his  own  decisions.  P.  34,  225, 
Aug.  1,  1889. 

AVhere  a  claim  has  once  been  settled  by  a  preceding  Secretary 
under  the  provisions  of  a  statute  imposing  such  duty  upon  him,  and 
subsequently  a  resolution  is  adopted  by  one  house  of  Congress,  or  a 
committee  thereof  makes  a  report,  adverse  to  the  decision  of  the  Secre- 
tary, such  resolution  or  report  may  properly  serve  as  a  ground  for 
reopening  and  again  examining  and  settling  the  case ;  and  while  the 
views  of  the  committee,  or  those  indicated  in  the  resolution,  as  to  the 
meaning  of  the  statute  are  entitled  to  respectful  examination  and  con- 
sideration by  the  Secretary,  they  are  not  binding  upon  him  in  the 
reexamination  and  settlement  of  the  claim.  He  must  look  solely  to 
the  statute  which  gave  him  jurisdiction  and  act  according  to  his  own 
best  judgment  of  its  meaning.^     P.  56,  6,  Oct.  2, 1892. 

A  final  settlement  of  a  claim  under  special  statutory  authority, 
followed  by  receipt  and  acceptance  by  the  claimant  of  the  amount 
awarded,  estops  the  claimant  from  questioning  that  such  allowance 
and  payment  constituted  a  full  and  final  satisfaction  of  his  entire 
claim.2  So  where  the  Secretary  of  War,  pursuant  to  act  of  Congress, 
had  settled  the  claim  of  a  railroad  company  for  military  transporta- 
tion by  the  allowance  of  a  sum  which  was  paid  and  accepted  as  a 
final  award,  held  that  without  new  authority  from  Congress  he  could 
not  reopen  the  case  for  the  purpose  of  allowing  further  credits,  except 
to  correct  errors  in  calculation.     B.  42,  332,  June  17,  1879. 

1 19  Op.  Atty.  Gen.,  388. 

2  50p.  Atty.  Gen.,  122;  lOid.,  259;  12id.,  386;  4Comp.  Dec,  328;  6 id.,  858.  ''Where 
a  claimant  has  heretofore  presented  and  has  been  allowed  a  claim  for  a  part  of  an 
entire  demand  arising  out  of  the  same  service  and  in  the  same  right,  such  partial 
allowance  is  a  settlement  of  the  whole  demand  and  a  subsequent  application  for 
the  remainder  will  be  disallowed."    4  Comp.  Dec,  328. 


240  CLAIMS  11. 

II.  As  a  general  rule,  neither  the  Secretary  of  War  nor  any  execu- 
tive officer  nor  the  accounting  officers,  in  the  absence  of  authority 
from  Congress,  is  empowered  to  entertain,  allow,  settle,  or  pay  a 
claim  for  unliquidated  damages  ^  against  the  Government,  the  term 
''damages"  being  here  used  in  its  legal  sense.  Therefore  held, 
where  a  citizen,  who  had  been  permitted  to  make  certain  improve- 
ments upon  public  land,  asked  to  be  indemnified  on  account  of 
alleged  injury  to  his  property  and  business  caused  by  the  extending 
of  the  limits  of  a  military  reservation  over  the  land  occupied  by  him. 
R.  42,  692,  Apr.  13,  1880.  So,  held,  that  the  Secretary  of  War  was 
not  empowered  to  allow  a  claim  for  indemnity  for  his  alleged  wrong- 
ful arrest  and  imprisonment  as  a  deserter,  made  by  a  party  who 
claimed  to  have  been  arrested  by  mistake  for  the  real  offender  {R. 
42,  122,  Dec.  23,  1865;  26,  597,  June  17,  1868);  or  a  claim  for  his 
arrest  and  detention  as  a  deserter  made  by  a  party  claiming  to  have 
been  illegally  drafted  (R.  H,  405,  Apr.  20,  1865) ;  or  a  claim  for  an 
alleged  wrongful  arrest  and  confinement  made  by  a  prisoner  of  state, 
or  suspected  person  in  time  of  war  {R.  19,  166,  Nov.  1, 1865;  36,  522, 
June  .10, 1875) ;  or  a  claim  for  reimbursement  by  a  military  employee 

1  Denuis  v.  U.  S.,  20  Ct.  Cls.,  119;  Brannen  v.  U.  S.,  id.,  219;  Pitman  v.  U.  S.,  id. 
253,  I  Comp.,  261,  283;  II  id.,  174,  488;  IV  id.,  446,  560;  V  id.,  693,  770;  VI  id.,  707- 
XVII  id.,  806,  810. 

But  the  rule  against  paying  unliquidated  damages  does  not  prohibit  payments 
made  for  work  or  materials  actually  furnished  and  received  under  a  contract,  express 
or  implied,  though  the  price  is  not  fixed  by  such  contract.  McClure  v.  U.  S.,  19  Ct. 
Cls.,  179;  Dennis  v.  U.  S.,  20  id.,  119;  Pitman  v.  U.  S.,  648,  id.,  253;  Brannen  v.  U.  S., 
id.,  223;  I  Comp.,  283;  II  id.,  365;  III  id.,  365,  565;  VI  id.,  953;  VII  id.,  517.  The 
rule  controlling  the  payment  of  unliquidated  damages  is  stated  in  Dennis  v.  U.  S., 
cited  above,  as  follows: 

"Technically,  all  claims  for  money  due  on  contracts,  where  the  exact  amount  pay- 
able is  not  thereby  fixed,  as  in  the  case  of  goods  purchased  or  work  done  without  an 
agreed  price,  are  claims  for  unliquidated  damages.  But  they  arise  necessarily  and  of 
course  from  otherwise  fulfilled  and  executed  agreements,  and  their  settlement  rarely 
requires  anything  more  than  the  ordinary  processes  of  accounting,  the  prices  being 
readily  determined  by  the  vouchers  and  reports  of  the  public  officers  incurring  the 
expenses,  or  by  other  means  within  reach  of  the  accounting  officers,  who  very  properly 
take  jurisdiction  and  pass  upon  such  claims.     (McClure's  case,  19  Ct.  Cls.  K.,  179.) 

"When  serious  controversies  arise  in  suchcasesthey  may  be  transmitted  to  this  court 
for  adjudication,  under  either  the  Revised  Statutes,  section  1063,  or  the  Bowman  Act. 
(Mar.  3,  1883,  ch.  116,  22  Stat.,  485.) 

"But  claims  for  unliquidated  damages  founded  on  nieglector  breach  of  obligations 
contrary  to  the  terms  of  a  contract,  and  not  necessarily  arising  therefrom  are  of  quite 
a  different  class.  They  must  be  sustained  by  extraneous  proof,  often  involving  a  broad 
field  of  investigation  and  requiring  the  application  of  judgment  and  discretion  upon 
the  measure  of  damages  and  the  weight  of  conflicting  evidence.  As  was  said  in 
Power's  case  (18  Ct.  Cls.  R.,  275),  'the  results  to  be  reached  in  such  cases  can  in  no 
sense  be  called  an  account,  and  are  not  committed  by  law  to  the  control  and  decision 
of  Treasury  accounting  officers.'  (See  Brannen's  case,  post  219,  where  the  authorities 
are  more  fully  cited.)" 

Also,  notwithstanding  the  rule  against  the  payment  of  unliquidated  damages,  where 
it  is  not  against  the  interest  of  the  United  States,  the  Secretary  of  War  may  enter  into 
a  supplemental  contract  with  a  contractor  discontinuing  or  modifying  an  existing  con- 
tract and  settling  all  claims  between  the  contractor  and  the  Government  arising  there- 
under. U.  S.  V.  Corliss  Engine  Co.,  91  U.  S.,  321;  Satterlee  v.  U.  S.,  30  Ct.  Cls.,  31; 
21  Op.  Atty.  Gen.,  78,  207;  22  id.,  437;  III  Comp.  Dec,  54;  VI  id.,  953;  VIII  id., 
549;  IX  id.,  43;    XV  id.,  439. 

No  executive  or  accounting  officer,  however,  has  authority  to  settle  by  a  supple- 
mental contract  such  unliquidated  claims  as  may  arise  from  a  breach  of  the  contract; 
but  resort  must  be  had  to  the  courts  for  their  liquidation.  Cramp  &  Sons  v.  U.  S., 
216,  U.  S.,  503;  XVII  Comp.  Dec,  806,  810. 


CLAIMS  II.  241 

for  loss  of  wages  during  a  period  of  an  arrest  and  trial  by  court- 
martial,  the  conviction  in  his  case  having  been  held  to  be  invalidated 
by  reason  of  a  defect  in  the  proceedings  {R,  U,  225,  Feh.  27,  1865) ; 
or  a  claim  for  the  value  of  personal  property  illegally  appropriated 
by  a  soldier  {R.  It2,  295,  May  20,  1879).  And,  similarly,  keU  where 
the  claims  were  for  corn  taken  from  a  field  and  damage  done  to 
fences  by  United  States  soldiers  encamped  in  the  vicinity  {C.  668, 
Nov.  22,  1894);  for  damages  to  a  crop  by  cavalry  horses  breaking 
into  the  field  (C.  1553,  July  17,  1895) ;  for  damage  to  a  phaeton  and 
harness  caused  by  the  runaway  of  a  horse  resulting  from  a  stampede 
of  United  States  cavalry  horses  ( C.  2611,  Sept.  17, 1898) ;  for  damages 
done  by  United  States  troops  to  crops  and  fences  in  field  maneuvers 
and  to  lands  used  for  drilling  purposes,  if  there  was  no  contract 
express  or  implied  by  which  the  Government  agreed  to  pay  for  the 
damages  1  {Cf.  4315,  June  17,  1898;  4^58,  July  27,  1898;  4686, 
July  28,  1898;  5029,  Oct.  3,  1898) ;  for  damages  on  account  of  an 
alleged  infringement  by  the  United  States  of  a  patent  ( C.  595,  Nov.  6, 
1894,  and  Jan.  20,  1898) ;  for  the  value  of  a  vessel  wrecked  on  the 
beach  of  a  military  reservation,  the  vessel  after  several  years  on  the 
beach  having  been  removed  in  obedience  to  general  instructions  to 
clear  up  the  reservation  (C.  3627,  Nov.  10,  1897).  So,  held,  also, 
where  a  contractor  had  undertaken  to  commence  the  erection  of 
certain  buildings  by  March  30,  1898,  but  owin^  to  the  Spanish  War 
was  not  permitted  by  the  Government  to  begm  the  buildings  until 
June  29,  1898,  the  contractor  claiming  $758  as  an  extra  expense 
due  to  the  increase  in  cost  of  lumber  and  the  hire  of  workmen  after 
war  with  Spain  was  declared.  C.  5901,  Mar.  A,  1899.  So,  held, 
where  damages  were  claimed  for  a  breach  of  contract  for  transpor- 
tation of  freight  to  Alaska.  C.  3969,  Sept.  10,  1898.  So,  held,  also, 
where  damages  were  caused  to  a  tug  by  its  fouling  the  buoy  lines  of 
certain  mines  lawfully  planted  by  the  nuhtary  authorities.  C.  18526, 
Sept.  12,  1905.  So,  held,  also,  where  a  battery  of  light  artillery  law- 
fully engaged  in  target  practice  fired  certain  shells  which  missed  the 
target  and,  not  exploding  when  they  came  to  rest,  were  lost  and  a 
year  afterwards  were  found  by  some  children,  who  caused  them  to 
explode,  thereby  causing  severe  injuries  to  the  children.  C.  19319, 
Mar.  10,  1906.  So,  held,  where  a  claim  was  for  damages  to  property 
resulting  from  the  firing  by  coast  artillery  batteries.  C.  9818, 
Feh.  12,  1901;  15872,  Feh.  9,  1904;  19812,  May  29,  1906.  So,  held, 
where  the  claim  was  for  damages  to  a  sawmill  resulting  from  light 
artillery  target  practice.  C.  17495,  Feh.  4,  1905.  So,  held,  where 
the  claim  was  for  damages  resulting  from  the  diversion  of  a  water 
course  so  as  to  cut  a  channel  through  the  property  of  the  claimant. 
C.  11634,  Nov.  26,  1901.  So,  held,  where  the  claim  was  for  damages 
to  a  private  vessel  resulting  from  its  collision  with  an  army  trans- 

_  ^  But  the  rule  would  be  otherwise  where  the  premises  were  occupied  under  such 
circumstances  that  the  law  would  imply  a  contract  to  pay  rent  to  those  owning  the 
premises  occupied  and  to  pay  damages  to  those  owning  the  premises  or  other  prop- 
erty so  dama,^ed,  and  in  such  case  an  appropriation  for  paying  the  "-expenses"  of  the 
Organized  Militia  to  participate  in  joint  encampment  with  the  Regular  Army  would 
cover  an  expenditure  for  such  a  purpose.  XVI  Comp.  589.  So  also  where  an  act  of 
Congress  appropriated  money  for  "leases  of  land  and  damages  of  property,"  it  would 
mclude  unliquidated  damages.     C.  16525,  May  19,  1904. 

31106°— 12 16 


242  CLAIMS  III. 

port.^  C.  14628,  May  9,  1903.  So,  Tield,  also,  where  the  claim  was 
for  damages  to  a  launch  of  the  Philippine  Government  resulting 
from  its  collision  with  an  army  launch.     C.  229^6,  Mar.  21,  1908. 

Notwithstanding  the  rule  against  the  payment  of  unliquidated 
damages,  it  would  be  proper  to  provide  in  a  lease  of  land  for  maneuver 
purposes  for  the  consideration  by  a  board  of  the  damage  done  to 
fences,  crops,  and  the  like  by  troops  in  the  execution  of  military 
maneuvers,  notwithstanding  that  such  claims  are  unliquidated 
claims  and  for  the  payment  of  such  damages  as  might  be  awarded 
by  the  board.^     C.  16525,  May  19,  190^. 

III.  Notwithstanding  the  equitable  principle  that  interest  is  an 
incident  of  a  debt,  the  rule  is  well  settled  that,  except  where  its  pay- 
ment is  expressly  stipulated  for  by  contract,  or  specifically  author- 
ized by  act  of  Congress,  the  United  States  is  not  bound,  nor  is  any 
executive  official  empowered,  to  pay  interest  on  claims,  whether 
arising -out  of  contract  or  otherwise.^  R.  21,  564,  J'^^V  ^^  1866;  32, 
606,  May  20,  1872;  P.  52,  US,  Mar.  22,  1892;  54,  464,  Aug.  3,  1892. 

IV.  It  is  well  settled  that  the  United  States  is  not  legally  respon- 
sible for  the  torts  or  criminal  acts  of  its  officers  or  agents,  whether  of 
commission  or  omission,*  and  as  the  Government  can  act  only  through 
its  officers  or  agents,  no  wrong  resulting  from  a  tortious  or  criminal 
act  would  be  the  wrong  of  the  Government,  but  would  be  the  wrong 
of  only  the  person  commiting  it.  So  Tield,  where  claims  were  for 
personal  injuries  inflicted  upon  citizens  by  United  States  soldiers. 
{C.  5108,  Oct.  4,  1898;  6100,  Mar.  20,  1899;  6586,  June  17,  1899); 
for  the  support  of  the  wife  and  children  of  a  citizen  killed  by  a  soldier 
{C.  5261,  Nov.  5,1898;  16825,  Sept.  3,  1904) )  for  damages  on  account 
of  injuries  resulting  from  accidental  or  negligent  shooting  of  a  citizen 

*  In  XIII  Comp.  Dec,  349,itissaid,  "Moreover,  it  is  doubtful  if  the  head  of  a  depart- 
ment is  authorized  to  liquidate  a  claim  for  a  marine  tort  committed  by  a  vessel  of  the 
United  States.  It  is  well  established  that  in  ordinary  cases  the  United  States  is  not 
liable  for  damages  resulting  from  the  negligence  or  tortious  acts  of  its  officers  or  agents. 
(VI  Comp.  Dec,  751;  XI  id.,  767;  XII  id.,  580,  825.)  But  an  exception  to  this  rule 
appears  to  be  recognized  in  the  case  of  marine  torts.  But  even  in  such  cases  claims 
for  damages  are  not  enforceable  against  the  United  States,"  citing  the  Siren,  7  Wall., 
155.  The  Comptroller  further  remarked  in  the  same  opinion, ' '  It  has  been  the  practice 
to  refer  such  claims  to  Congress  for  appropriation." 

^  Such  a  provision  is  now  incorporated  in  all  leases  of  land  for  maneuver  purposes 
and  for  the  use  by  the  Organized  Militia  as  target  ranges. 

3  Angerica  v.  Bayard,  127  U.  S.,  260;  U.  S.  v.  McKee,  91  id.,  450;  Tilsoni;.  U.  S.,  100 
id.,  43;  Harvey  v.  U.  S.,  113  id.,  243;  Todd  v.  U.  S.,  Devereaux  (Ct.  Cls.),  95;  Wight- 
man  V.  U.  S.,  23  Ct.  Cls.,  144;  1  Op.  Atty.  Gen.,  550,  554;  2  id.,  463;  3  id.,  635;  4  id., 
14,  136,  286;  5  id.,  72,  105,  138,  334,  356;  6  id.,  533;  7  id.,  523;  9  id.,  57,  449;  14  id., 
30;  17  id.,  351.  But  where  a  sum  of  money  was  paid  by  a  State  for  interest  upon  its 
bonds  issued  in  1861  to  defray  expenses  to  be  incurred  in  raising  troops  for  the  national 
defense,  that  sum  is  regarded  as  a  principal  sum  which  the  United  States  agreed  to 
pay,  and  not  interest  within  the  meaning  of  the  rule  prohibiting  the  allowance  of 
interest  accruing  upon  claims  against  the  United  States  prior  to  the  rendition  of  judg- 
ment. U.  S.  V.  New  York,  160  U.  S.,  598;  Pennsylvania  v.  U.  S.,  36  Ct.  Cls.,  507. 
The  act  of  Mar.  3,  1911  (36  Stat.,  1141),  relating  to  the  Court  of  Claims,  reenacts  the 
following  provision:  "No  interest  shall  be  allowed  on  any  claim  up  to  the  time  of 
rendition  of  judgment  thereon  by  the  Court  of  Claims,  unless  upon  a  contract  expressly 
stipulating  for  the  payment  of  interest. " 

In  the  absence  of  statutory  authority,  a  military  officer,  in  entering  into  a  contract 
as  the  representative  of  the  United  States,  should  not  stipulate  with  the  contractor 
that,  in  case  payments  due  him  under  the  contract  are  delayed  beyond  a  certain  time, 
he  will  be  entitled  to  claim  interest  thereon. 

*  Pitman  v.  U.  S.,  20  Ct.  Cls.,  255;  Gibbons  v.  U.  S.,  8  Wall.,  269;  id.  7  Ct.  Cls., 
105;  Langford  v.  U.  S.,  101  U.  S.,  341;  German  Bank  v.  U.  S.,  148  U.  S.,  580;  Hill  v. 


CLAIMS  IV.  243 

by  a  soldier  {C.  5260,  Nov.  5,  1898);  for  damages  to  railroad  train 
equipment  by  soldiers  traveling  thereon  {C.  5\S3,  Dec.  10,  1898); 
for  aamages  on  account  of  injury  received  while  a  contract  nurse  on 
a  United  States  transport  and  due  to  alleged  negligence  of  oliicials 
of  the  Government  (C.  664I,  June  28,  1899) ;  for  damages  on  account 
of  injuries  inflicted  by  a  soldier  upon  a  Cuban  policeman  while  the 
latter  was  attempting  to  arrest  the  soldier  {C.  17758,  Mar.  25,  1905); 
for  damages  to  a  private  vehicle  resulting  from  its  collision  with  a 
battery  paisson  {C.  25035,  May  27,  1909)  or  other  Government 
vehicle  (C.  29294,  Jan.  15,  1912);  for  damages  from  personal  injuries 
caused  by  a  visitor  to  a  national  cemetery  stepping  into  a  drop  pipe, 
which  it  was  claimed  was  not  kept  in  a  condition  of  reasonaole 
safety  (C.  15861,  Feb.  6,  1904);  for  damages  to  a  thrashing  machine 
caused  by  the  collapse  of  a  bridge  in  a  national  cemetery,  due  to  the 
alleged  weakened  condition  of  the  bridge  arising  through  govern- 
mental negligence  {C.  15861,  Dec.  10,  1905);  for  damages  for  the 
killing  of  an  American  sokher  by  a  Cuban  policeman  during  the 
time  Cuba  was  under  military  government,  it  appearing  that  the 
killing  was  not  justified,  and  the  policeman  being  considered  as  an 
agent  of  the  United  States  in  carrying  on  the  military  government  in 
Cuba  {C.  11027,  Aug.  22,  1901);  for  aamages  for  the  negligent  injury 
to  property  or  wounding  or  killing  of  a  human  being  or  private  ani- 
mal by  a  bullet  fired  by  troops  while  engaged  in  target  practice 
{C.  13584,  Nov.  5,  1902;  16675,  Aug.  4,  1904;  21939,  Aug.  16,1907); 
for  damages  caused  by  a  member  of  a  recruiting  party  leaving  the 
water  running  in  a  bathtub  at  the  recruiting  office,  so  that  the  water 
ran  over  and  damaged  goods  on  a  lower  floor  {C.  22049,  Sept.  10, 1907) ; 
for  the  value  of  a  private  launch  that  soldiers  while  in  swimming 

U.S.,  149  U.S.,  593;  Schillingeri;.  U.  S.,  155  U.  S.,163;  Belknap  1;.  Schild,  161  U.  S., 
10;  Morgan  v.  U.  S.,  14  Wall.,  531;  XII  Comp.  Dec,  580. 

Jud^e  Story  in  his  work  on  agency,  sec.  319,  says:  "  It  is  plain  that  the  Government 
itself  IS  not  responsible  for  the  misfeasances  or  wrongs  or  negligences  or  omissions 
of  duty  of  the  subordinate  officers  or  agents  employed  in  the  public  service;  for  it 
does  not  undertake  to  guarantee  to  any  person  the  fidelity  of  any  of  the  officers  or 
agents  whom  it  employs  since  that  woulcl  involve  it,  in  all  its  operations,  in  endless 
embarrassments  and  difficulties  and  losses,  which  would  be  subversive  of  the  puVdic 
interests."  In  Shields  i).  Ohio,  95  U.  S.,  319,  it  was  said  "A  Government  may  be  a  loser 
by  the  negligence  of  its  officers,  but  it  never  becomes  bound  to  others  for  the  conse- 
quences of  such  neglect,  unless  it  be  by  express  agreement  to  that  effect." 

While  the  Government  is  not  pecuniarily  responsible  for  torts  committed  by  officers 
and  enlisted  men,  the  latter  are  so  responsilile,  and  aside  from  their  liability  to  civil 
suit  may  and  should  in  cases  covered  by  the  fifty-fourth  article  of  war  be  proceeded 
against  as  required  l>y  that  article.  See  the  following  cases  to  the  effect  that  a  Gov- 
ernment agent  committing  a  tort  is  personally  responsible:  Little  v.  Barreme,  2 
Cranch,  170;  Cammeyer  v.  Newton,  94  U.  S.,  234;  Osborn  v.  U.  S.,  9  Wheat.,  871; 
Board  of  Liquidation  v.  McComb,  92  U.  S.,  541;  Allen  v.  Baltimore,  etc.,  R.  Co.,  114 
U.  S.,  311;  Pennoyer  v.^  McConnaughy,  140  U.  S.,  1;  Belknap  v.  Schild,  161  U.  S.,  18. 
Claims  against  the  United  States  for  damages  arising  from  the  torts  of  Government 
agents  have  repeatedly  been  presented  to  Congress,  l)ut  that  l)ody  has  refused  to 
appropriate  for  them  except  in  a  few  unusual  cases.  An  appropriation  was  made 
in  the  following  instances  among  others:  In  connection  with  an  explosion  in  the 
Washington  Arsenal,  June  17,  1864  (13  Stat.,  416-417);  in  connection  with  an  explo- 
sion in  the  Washington  Arsenal  in  March,  1866  (14  Stat.,  351);  in  connection  witli 
the  death  and  injury  of  a  number  of  clerks  at  Ford's  Theater  in  Washington,  June  9, 
1893  (28  Stat.,  392;  29  Stat.,  273;  30  Stat.,  109;  31  Stat.,  1612);  in  connection  with  the 
explosion  of  an  ammunition  chest  in  the  city  of  Chicago,  July  16, 1894  (32  Stat.,  1452); 
m  connection  with  an  injury  to  a  German  subject  injured  by  a  bullet  fired  by  troops 
while  at  target  practice  in  1892  (30  Stat.,  106). 


244  CLAIMS  IV. 

used  without  authority  to  dive  from,  the  launch  being  accidentally 
sunk  from  overcrowding  {C.  29108,  Oct.  10,  1911);  for  damages  to  a 
private  vessel  from  a  collision  with  a  Government  vessel  (C.  20194, 
Aug.  10,  1906);  for  the  value  of  property  stolen  or  illegally  appro- 
priated by  a  soldier,  (i?.  63,  279,  Apr.  7,  1887;  P.  33,  165,  June  21, 
1889);  for  the  value  of  certain  ships'  supplies  stolen  by  military 
prisoners  on  board  a  chartered  transport  {C.  11974,  «^^^-  ^'^,  1902); 
for  the  value  of  jewelry  stolen  from  natives  by  soldiers  during  active 
military  operations  in  the  Philippine  Islands  (C.  16627,  Nov.  12, 
1904);  for  the  value  of  timber  cut  on  private  land  by  soldiers  wrong- 
fully and  in  ignorance  that  the  land  was  private  property,  even 
though  such  soldiers  were  at  the  time  engaged  in  the  discharge  of 
official  duties  (P.  38,  319,  Feb.  8,  1890) ;  for  injuries  to  fences  and 
crops  resulting  from  the  unauthorized  maneuvering  of  troops  over 
private  lands  near  a  military  post  {C.  12972,  July  23,  1902);  for  the 
value  of  intoxicating  liquors  destroyed  by  troops  while  on  duty  in 
the  city  of  San  Francisco  in  the  prosecution  of  rehef  work  after  the 
earthquake  in  1906,  it  appearing  that  Congress  had  not  assumed 
responsibility  for  such  acts  and  had  made  no  appropriation  for  the 
%pa5^ment  of  such  damages.  The  liquor  referred  to  above  was 
destroyed  by  the  troops  as  a  matter  of  necessary  police  precaution  in 
order  to  minimize  the  danger  from  fire  and  to  prevent  possible  mob 
violence  (C.  20212,  Dec.  19,  1906);  for  the  value  of  cigars,  clothing, 
and  other  property  (not  consisting  of  intoxicating  liquors)  claimed 
to  have  been  looted  by  troops  during  the  San  Francisco  earthquake 
{C.  20212,  Mar.  27,  1907);  for  reimbursing  enlisted  men  for  sums  of 
money  deposited  by  them  with  their  company  commander  and 
embezzled  by  him  {C.  17191,  Nov.  23,  1904). 

Where  certain  trees  on  private  land  were  cut  down  for  use  in 
the  construction  of  a  pontoon  bridge  in  the  course  of  tactical  instruc- 
tion under  direction  of  the  authorities  of  a  service  school,  Tield  that 
while  the  owner  of  the  trees  might  lawfully  be  paid  for  the  timber 
out  of  the  funds  set  aside  for  the  use  of  the  service  school  in  connec- 
tion with  which  the  pontoon  instruction  was  being  carried  on,  he 
could  not  be  allowed  anything  in  the  nature  of  damages  for  the  tor- 
tious act  of  the  troops  in  cutting  the  timber.     C.  24968,  May  17,  1909. 

A  reward  having  been  offered  by  the  military  authorities  for  three 
Government  mules  that  had  been  stolen,  a  sheriff  seized  three  mules 
which  he  had  good  reason  to  believe  were  the  stolen  animals.  The 
person  from  whose  possession  the  sheriff  had  taken  the  mules  sued 
the  sheriff  for  the  value  of  the  mules  and  obtained  judgment  against 
him.  The  sheriff  made  claim  against  the  Government  to  be  reim- 
bursed for  the  amount  of  the  judgment  and  his  expenses.  Held,  that 
the  Government  was  not  legally  responsible  for  such  items  and  tliat 
if  the  sheriff  had  been  misled  by  an  officer  or  agent  of  the  Govern- 
ment as  to  the  identity  of  the  three  mules  seized  the  Government 
would  not  be  liable,  as  it  would  not  be  responsible  for  the  torts  of  its 
officers  or  agents.  C.  17626,  Feb.  11,  1906.  So,  Tield,  also,  where  a 
city  marshal  arrested  as  a  deserter  a  private  citizen  who  was  not  in 
fact  a  deserter  from  the  Army,  and  the  person  arrested  sued  the 
marshal  and  recovered  judgment  against  him.  C.  19263,  Feb.  28, 
1906. 

A  provision  in  a  lease  of  land  for  maneuver  purposes  for  the  con- 
sideration by  a  board  of  the  damage  done  to  fences,  crops,  and  the 


CLAIMS  IV.  245 

like  by  troops  would  not  include  losses  resulting  from  thefts,  larce- 
nies, and  other  predatory  acts  committed  b^v^  the  troops  which  took 
part  in  the  maneuvers,  as  the  United  States,  in  the  absence  of  author- 
ity of  Congress,  would  not  be  responsible  for  the  torts  or  criminal  acts 
of  its  agents.*  (7.  16525,  May  19,  1904;  ^7585,  Feb.  21,  1905.^  Nor 
would  any  executive  officer  oi  the  Government  be  authorized,  in  the 
absence  of  Congressional  legislation,  to  enter  into  a  contract  to  make 
the  United  States  responsible  for  tortious  or  criminal  acts  of  its  agents. 
C.  14971,  Jan,  29,  1904;  17585,  Feb.  27,  1905. 
During  the  Pliilippine  insurrection  United  States  troops  occupied 

Erivate  ])roperty  under  an  implied  lease,  and  the  premises  were 
urned  while  in  their  possession.  Held,  that  if  burned  through  the 
carelessness  of  the  troops  the  Government  would  not  be  liable  as  it 
is  not  liable  for  the  torts  of  its  agents  and,  held,  further,  that  the 
occupation  of  the  premises  did  not  give  rise  to  an  implied  obligation 
to  reimburse  the  owner  for  the  destruction  of  the  premises.^  O. 
15541,  Dec.  2,  1908;  25460,  Aua.  24,  1909. 

As  the  United  States  is  not  legally  responsible  for  the  torts  of  its 
officers  or  agents,  the  Secretary  of  War  could  not  authorize  from  the 
appropriation  for  ''all  contingent  expenses  of  the  Army  not  other- 
wise provided  for,"  the  payment  of  damages  as  compensation  for 
personal  injury  to  a  native  Filipino  accidentally  shot  on  a  rifle  range. 
C.  27214,  Aug.  27, 1910. 

Where  damages  were  claimed  by  the  owners  of  a  private  tug,  due 
to  the  tug  fouling  the  buoy  lines  of  certain  mines  planted  by  the  mili- 
tary authorities  {C.  18526,  Sept.  12,  1905);  and  where  a  battery  of 
light  Artillery  while  engaged  in  target  practice,  fired  certain  shells 
which  missed  the  target  and,  not  exploding  when  they  came  to  rest, 
were  lost  and,  a  year  afterwards,  were  found  by  some  children  who 
caused  them  to  explode,  thereby  seriously  injuring  the  children  (C. 
19319,  Mar.  10,  1906);  and  where  a  sewer  was  constructed  across 
private  lands  over  which  a  right  of  way  had  been  granted  and  an 
injury  was  done  to  private  property  by  reason  of  the  construction  of 
the  sewer  {C.  19295,  Mar.  13,  1906);  where  a  contractor  had  a  con- 
tract to  cut  hay  on  a  military  reservation  and  deliver  the  same  to  the 
military  authorities  and  certain  of  this  hay  in  stacks  and  not  yet 
accepted  by  the  Government  caught  fire  from  the  burning  of  fire 
guards  on  the  reservation  {C.  24842,  May  1,  1909);  where  a  horse 
was  injured  by  falling  into  the  opening  of  a  coal  vault  on  Government 
property  (a  27683,  Jari.  12,  1910);  where  a  bullet  fired  by  troops 
engaged  in  target  practice  wounded  a  private  citizen  at  a  distance 
from  the  target  range  (6^.  15281,  Oct.  24,  1903;  15537,  Nov.  24, 1903); 
where  the  mules  of  a  siege  train  ran  away  and  injured  private  prop- 
erty (C.  8949,  Sept.  17,  1900;  I46O6,  May  1,  1903);  where  a  private 

1  See  XVI  Comp.  Dec,  589. 

^  See  U.  S.  V.  BostAvick,  94  U.  S.,  68,  where  it  is  said:  "As  to  the  destruction  of  a 
part  of  the  buildings  by  fire,  there  was,  as  has  been  seen,  no  express  agreement  to 
repair  in  the  lease.  The  implied  obligation  is  not  to  repair  generally,  but  to  so  use 
the  property  as  to  make  repairs  unnecessary  as  far  as  possible.  It  is  in  effect  a  cove- 
nant against  voluntary  waste  and  nothing  more.  It  has  never  been  so  construed  as 
to  make  a  tenant  answerable  for  accidental  damages,  or  to  bind  him  to  rebuild,  if  the 
buildings  are  burned  down  or  otherwise  destroyed  by  accident.  In  this  case  it  has  not 
been  found,  neither  is  it  claimed  in  the  petition,  that  the  premises  were  burned 
through  the  neglect  of  the  United  States.  No  judgment  can,  therefore,  be  rendered 
against  the  United  States  on  this  account." 


246  CLAIMS  V. 

vessel  was  damaged  by  a  collision  with  a  Government  tug  {C.  19114., 
Feb.  1,  1906;  19571,  Aj^r.  26,  1906);  where  a  citizen  was  shot  by  a 
member  of  the  provost  guard  in  attempting  to  kill  a  mad  dog  {C.  5983, 
Mar.  9,  1899) ;  where  fishing  nets  were  damaged  by  the  removal  of  a 
cable,  the  nets  having  been  built  over  the  cable  after  it  was  laid  {C. 
18760,  Oct.  24,  1905);  where  a  bicycle  belonging  to  a  clerk  of  the 
War  Department  was  injured  by  a  public  animal,  the  bicycle  being 
lawfully  in  the  courtyard  of  the  State,  War  and  Navy  Building  at 
Washington  (C.  15324,  Oct.  6,  1903);  where  a  small  boat  that  had 
come  ashore  at  a  military  reservation  in  violation  of  repeated  warn- 
ings not  to  land,  was  destroyed  by  the  commander  of  a  military 
patrol  in  obedience  to  orders  of  his  commanding  officer  (C.  9762,  Feb. 
4,  1901),  held,  that  if  the  action  of  the  Government  or  its  agents  in 
the  above  instances  was  a  perfectly  legal  one,  there  being  no  negli- 
gence of  any  character,  the  Government  would  not  be  responsible  in 
damages;  ^  and  that,  on  the  other  hand,  if  the  injury  resulted  from 
an  unlawful  act  or  negligence  on  the  part  of  any  agent  of  the  Gov- 
ernment, the  latter  would  not  be  responsible,  since  it  is  not  liable  for 
the  torts  of  its  agents. 

V.  Where  a  private  landowner  claimed  that  the  value  of  his  prop- 
erty had  been  reduced  by  the  erection  of  a  Coast  Artillery  battery 
near  his  premises,  held  that  as  Congress,  by  authorizing  the  erection 
of  a  batter}^  at  that  place,  had,  in  effect,  declared  that  there  was  a 
legal  necessity  therefor,  the  battery  could  not  be  considered  a  legal 
nuisance,  and  the  United  States  would  not  be  liable  for  any  damages 
that  might  result  therefrom.  O.  15872,  Feb.  9,  1904.  So  where  the 
Secretary  of  War  authorized  State  and  county  officials  to  establish, 
under  the  supervision  of  the  Marine-Hospital  Service,  on  lands  under 
the  control  of  the  War  Department  a  hospital  for  contagious  and 
infectious  diseases,  held  that  the  establishment  of  such  a  hospital 
would  not  be  a  nuisance,  but  that  if  it  could  be  considered  a  nuisance, 
the  nuisance  would  be  one  created  through  the  tort  of  an  officer  of 
the  United  States,  and  as  the  United  States  is  not  liable  for  the  torts 
of  its  officers,  it  would  not  be  liable  to  adjoining  property  owners 
who  claimed  to  be  injured  by  the  establishment  of  the  hospital. 
C.  21749,  July  6, 1907. 

Two  native  women  of  Porto  Rico  received  gunshot  wounds,  the 
accidental  result  of  a  shot  fired  by  a  United  States  soldier  who  at 
the  time  lawfully  fired  the  same  while  attempting  to  arrest  another 
party.  They  submitted  claims  for  damages.  Held  that  the  United 
States  was  not  legally  liable  therefor  whether  or  not  there  was  negli- 
gence on  the  part  of  the  soldier.  But  as  these  claims  were  of  a  class 
for  which  Congress  sometimes  makes  compensation,  and  as  the 
mifitary  authorities  were  exercising  all  the  powers  of  government  in 
the  island  of  Porto  Rico,  advised  that  compensation  for  the  injuries 
could  legally  be  made  from  the  revenues  of  the  island.  If  made, 
however,  in  the  form  of  an  annuity  it  would  remain  operative  during 
the  continuance  of  the  military  government  only.  C.  6642,  June 
26, 1899. 

Although  there  is  no  law  of  Congress  which  vests  in  any  officer 
or  department  of  the  Government  authority  to  exercise  control  over 
shipping  in  navigable  waters  of  the  United  vStates  with  a  view  to 

^  The  Nitro-Glycerine  case,  15  Wall.  524. 


CLAIMS   VT   A.  247 

restraining  its  movement  in  order  to  facilitate  target  practice  or 
minimize  danger  therefrom,  yet  as  the  seacoast  defenses  are  con- 
structed out  of  funds  appropriated  by  (^on^ress  and  the  guns  and 
ammunition  used  in  target  practice  are  obtamed  with  similar  funds, 
advised,  that  when  the  guns  m  any  particular  work  of  seacoast  defense 
are  used  by  its  garrison  for  target  practice  and  the  firing  is  being 
conducted  in  conformity  to  regulations  prescribed  by  the  Secretary 
of  War,  the  garrison  would  be  not  only  engaged  in  a  lawful  occupation 
but  would  be  carrjdng  into  effect  the  will  of  Congress,  and  should 
be  considered  as  engaged  in  the  performance  of  their  public  duty 
and,  therefore,  if  while  so  engaged  and  exercising  a  due  degree  of 
care  to  prevent  accidents  to  passing  vessels  a  vessel  is  injured,  it 
is  doubtful  whether  a  claim  for  reimbursement  could  be  successfully 
maintained  before  Congress.     C.  16665,  Aug.  4, 1904. 

VI  A.  A  loyal  citizen  of  a  State  within  the  theater  of  the  Civil  War, 
m  order  to  prevent  the  capture  by  the  enemy  of  a  steamer  belonging 
to  him,  caused  it  to  be  run  up  a  small  stream  and  concealed.  It  was, 
however,  discovered  by  a  partisan  Confederate  force,  by  which  it  was 
dismantled  and  partly  sunk  but  not  held — the  owner  continuing  to 
assert  through  an  agent  who  remained  wdth  it,  liis  right  of  property 
therein.  Subsequently  it  was  taken  possession  of,  raised,  refitted 
and  used  in  the  war  by  the  Federal  military  authorities.  Upon  an 
appUcation  by  the  owner  at  the  end  of  the  war  for  its  restoration  and 
compensation  for  its  use,  lield,  that  not  having  been  in  fact  taken  from 
the  possession  of  the  enemy  it  was  not  subject  to  a  claim  for  military 
salvage,  such  as  that  allowed  for  property  recaptured  ^  or  recovered 
from  pirates ;  ^  but  that  the  sums  expended  by  the  Government  .in 
raising  and  refitting  it  might  properly  be  offset  against  the  amount 
claimed  for  its  use.     R.  20,  473  and  485,  Mar.  16  and  26,  1866.^  ^ 

The  capture  from  an  enemy  of  enemy's  property,  though  by  civilians, 
does  not  entitle  the  captors  to  military  salvage.  Thus  where  a 
steamer  belonging  to  the  enemy,  and  wluch  had  been  used  by  them 
in  the  prosecution  of  the  war,  was  removed  from  New  Orleans  just 
before  its  occupation  by  the  Federal  forces  and  concealed  in  Bayou 
Jacques  where  it  was  found  and  taken  possession  of  by  a  detachment 
of  United  States  troops  and  military  employees,  by  whom  a  claim  for 
military  salvage  was  thereupon  interposed,  held,  that  such  claim  was 
quite  without  legal  sanction,  the  steamer  having  become,  upon  cap- 
ture, under  the  provisions  of  sec.  1  of  the  act  of  March  12,  1863  (12 
Stat.  820),  the  property  of  the  United  States.  R.  20,  565,  Apr.  25, 
1866. 

VI  B.  It  is  a  general  principle  of  law  that  public  property  stands 
on  the  same  footing  with  private  property  as  regards  salvage  and 
general  average,  and  there  is  a  hen  against  public  property  for 
services  and  general  average,  except  that  where  property  of  the 
United  States  is  in  the  actual  possession  of  the  United  States  it 
can  not,  in  the  absence  of  authority  from  Congress,  be  the  subject 
of  an  admiralty  lien  to  enforce  such  claims  for  salvage  and  general 
average.  Therefore  where  the  possession  of  public  property  has 
been  turned  over  to  a  carrier  the  property  may  become  subject  to  such 

'  See  the  Amelia,  4  Dallas,  34;  Bas  v.  Tingy,  id.  37;  Talbot  v.  Seeman,  1  Cranch,  1; 
The  Adeline,  9  id.  244;  Marshall  v.  Delaware  Ins.  Co.  Fed.  Cas.,9127.  • 
2  Davison  v.  Seal-skins,  2  Paine,  324;  Lea  v.  The  Alexander,  id.  466. 


248  CLAIMS  VI  c. 

a  lien,  and  if  the  United  States  again  gets  possession  such  possession 
of  the  United  States  will  be  subject  to  the  hen.  ^  R.  21,  2J^1,  Feb. 
16,  1886;  0.  17725,  Mar.  31,  1905;  17851,  Am.  I4, 1905,  23938,  Jan. 
26,  1909;  21^565,  Mar.  1909;  but  to  this  rule  exceptions  have  been 
established.  It  has  been  held  that  our  national  ships  of  war  should 
not  be  hable  to  arrest  and  detention  at  the  suit  of  salvers,  ''on  account 
of  the  injury  and  inconvenience  which  might  result  to  the  public 
interests  therefrom."  This  reasoning  would  appear  to  be  equally 
appUcable  to  a  case  of  supplies  en  route  to  armies  in  the  field  in 
time  of  war.  So,  lield,  where  certain  subsistence  and  quartermaster 
stores,  in  transit  to  our  armies  in  the  field  and  needed  for  their  use, 
were  detained  by  the  United  States  marshal  at  Cairo,  111.,  at  the  suit 
of  the  salvers  of  a  steamer  sunk  with  her  cargo  (including  these 
supphes)  in  the  Mississippi  River.     R.  21,  21^1,  Feb.  16,  1866. 

During  the  war  between  Russia  and  Japan  an  English  merchant 
ship  carrying  public  property  of  the  United  States  was  stopped 
by  a  Russian  cruiser  m  the  Red  Sea,  searched,  and  held  for  some 
time  and  then  released.  Held,  that  the  United  States  was  subject 
to  a  claim  for  general  average  for  losses  sustained  by  the  ship.  C. 
19690,  May  18,  1906.  _ 

VI  C.  Where  the  private  property  of  officers  is  being  transported 
at  Government  expense  on  a  private  vessel,  which  was  disabled 
and  became  subject  to  a  lien  for  salvage,  lieldb,  that  the  general  average 
claim  against  the  property  of  the  officers  should  be  paid  by  the 
Government  in  the  first  instance,  and  the  subject  of  reimbursement 
by  the  officers  left  to  future  adjustment  between  them  and  the 
United  States.     C.  17725,  Mar.  31,  1905. 

On  a  change  of  station  from  New  York  to  Fort  Caswell,  N.  C,  an 
officer's  property  was  shipped  by  sea,  and  the  ship  having  stranded 
a  general  average  contribution  was  declared  on  the  cargo.  The 
officer  objected  to  paying  his  share  of  the  contribution  and  urged 
that  it  should  be  paid  hj  the  Government  because  the  military 
authorities  should  have  shipped  his  property  by  rail  at  carrier's  risk 
instead  of  by  sea.  Held,  that  in  the  absence  of  an  express  stipula- 
tion to  the  contrary  shipment  by  sea  as  well  as  by  rail  would  be  at 
carrier's  risk  the  Government  was  not  required  by  law  or  regulations 
to  ship  private  property  of  an  officer  by  rail  rather  than  by  sea,  but 
as  an  expenditure  of  public  funds  was  involved  should  snip  in  the 
way  that  would  be  most  economical,  time  being  considered  as  an 
element,  and  that  if  in  case  of  a  shipment  by  sea  the  private  prop- 

1  U.  S.  V.  Wilder,  28  Fed.  Cas.  No.  16694;  The  Merrimac,  1  Benedict,  201;  Rees 
V.  U.  S.,  134  Fed.  Rep.  146;  Brown's  administrator  v.  U.  S.  15  Ct.  Cls.  392;  5  Op. 
Att)r.Gen.757;  IComp.166;  Hid.  409;  IV id.  567;  butsee  VII  Comp.  Dec,  365,  where 
services  in  the  nature  of  towing  were  rendered  and  a  claim  for  salvage  was  denied. 
In  The  Davis,  10  Wall.  (U.  S.)  15,  the  syllabus  is  as  follows: 

"1.  Personal  property  of  the  United  States  on  board  of  a  vessel,  for  transportation 
from  one  point  to  another,  is  liable  to  a  lien  for  salvage  services  rendered  m  saving 
the  property. 

"  2.  Such  lien  can  not  be  enforced  by  the  courts  by  a  suit  against  the  United  States. 

*'3.  Nor  by  proceeding  in  rem  when  the  possession  of  the  property  can  only  be  had 
by  taking  it  out  of  the  actual  possession  of  the  officers  or  agents  of  the  Government 
charged  therewith. 

"4.  It  may  be  enforced  by  a  proceeding  in  rem  where  the  process  of  the  court  can 
be  enforced  without  disturbing  the  possession  of  the  Government,  which,  being 
thus  compelled  to  appear  in  the  court  to  assert  its  claim,  must  discharge  the  lien 
before  the  property  will  be  delivered  to  it."    (2  Parsons  Maritime  Law,  625.) 


CLAIMS  VI   D.  249 

erty  of  an  officer  should  become  subject  to  a  general  average  contri- 
bution such  contribution  should  be  paid  by  the  officer  and  not  by 
the  Government.     0.  20919,  Jan,  16,  1907. 

VI D.  The  troops  at  a  seacoast  post  exerted  themselves,  as  required 
by  their  official  duty,  to  save  certain  Government  property,  and, 
exerting  themselves  in  addition  beyond  the  requirements  of  their 
official  duty,  saved  the  cargo  of  a  ship  in  distress  near  the  post. 
The  commanding  officer  of  the  j)ost  refused  to  release  the  cargo  until 
the  master  of  the  vessel  had  paid  $160  as  salvage.  This  sum,  when 
paid,  was  placed  in  the  several  company  funds.  The  master  of  the 
vessel,  after  paying  the  salvage  demanded,  applied  to  the  War 
Department  to  have  it  refunded.  Held,  that  under  the  circumstances 
of  the  case  the  troops  engaged  in  savins  the  cargo  were  entitled  to 
salvage,  and  that  if  those  engaged  in  tne  salvage  acquiesced  there 
was  no  objection  to  the  money  being  distributed  among  the  several 
company  funds.     0.  12721,  June  13,  1902. 

VI  E.  Certain  lumber  was  cast  ashore  within  the  limits  of  the 
military  reservation  of  Fort  Caswell,  N.  C.  The  lumber  probably 
came  from  vessels  lost  or  damaged  off  the  coast.  Exclusive  juris- 
diction over  the  reservation  had  been  ceded  to  the  United  States, 
and  the  Treasury  Department  had  been  given  a  license  by  the  War 
Department  to  use  a  portion  of  the  beach  for  a  life-saving  station. 
A  portion  of  the  lumber  cast  ashore  was  taken  possession  of  by  the 
keeper  and  crew  of  the  life-saving  station  and  the  remainder  by  the 
military  authorities.  Held,  that  all  lumber  cast  ashore,  whether 
upon  that  portion  of  the  beach  assigned  to  the  life-saving  service  or 
Upon  other  portions,  became  the  property  of  the  United  States,  sub- 
ject to  the  claims  of  any  possible  owner,  and  this  regardless  of  whether 
it  should  be  considered  technically  as  ''wreck"  or  ''drift  stuff.'' 
Held,  also,  that  the  services  rendered  by  the  keeper  and  crew  of  the 
life-saving  station  and  by  others  were  not  services  entitling  them  to 
payment  for  salvage.  U.  20582,  Nov.  6,  1906.  Held,  further,  that 
if  lumber,  logs,  and  driftwood  have  come  ashore  on  a  military  reser- 
vation, and  thus  become  the  property  of  the  United  States,  they 
should  be  cared  for  like  other  Government  property,  and  if  consid.- 
ered  unsuitable  to  the  service  may  be  disposed  of  as  provided  by 
section  1241,  R.  S.     0.  20721,  Dec.  6,  1906. 

VI  F.  Where  a  contract  for  the  construction  of  two  scows  pro- 
vided that  "all  parts  of  the  scows  paid  for  under  the  system  of  partial 
payments  above  specified  shall  become  thereby  the  sole  property  of 
the  United  States,  but  this  provision  shall  not  be  interpreted  as 
relieving  the  contractor  from  the  sole  responsibility  for  the  proper 
care  and  protection  of  said  parts  prior  to  the  delivery  of  the  com- 
pleted scows  to  the  United  States,"  Tield,  a  private  person  could 
not  obtain  an  admiralty  lien  on  the  scows  as  against  the  Government. 

^  G.  3946,  Nov.  5,  1907. 

VII  A.  In  determining  whether  during  the  Philippine  insurrection 
♦  the   owner   of  property  was  an   enemy — that   is,  was   not   loyal — 

consideration  should  be  given  to  the  peculiar  circumstances  connected 
with  the  warfare  in  the  Philippine  Islands.  In  the  Philippines 
when  the  Spanish  War  was  over  the  United  States  ceased  to  be  in 
enemy  territory.  An  insurrection  broke  out  and  a  condition  of  war 
existed  for  several  years.  This  war  was,  however,  not  in  enemy 
country,  and  the  policy  of  the  United  States  was  to  consider 
all  Philippine  communities  loyal  except  where  resistance  was  met 


250  CLAIMS  VII  B  1. 

or  there  was  direct  knowledge  of  disloyalty.  The  people  at  large 
were  not  required  to  take  the  oath  of  allegiance.  Therefore,  all 
inliabitants  of  the  Philippines,  except  in  certain  limited  areas  where 
the  conduct  of  the  inliabitants  led  to  the  conclusion  that  an  entire 
community  was  disloyal,  should  be  presumed  to  be  loyal  to  the 
de  jure  government  unless  they  were  serving  in  the  insurgent  ranks 
or  were  otherwise  known  to  be  in  opposition.  As  the  people  at 
large  were  never  required  to  take  an  oath  of  allegiance,  the  failure 
to  take  such  an  oath  should  not  be  considered  as  conclusive  in 
determining  the  question  of  the  loyalty  of  the  owner  of  property 
taken  for  military  purposes.  So,  also,  the  fact  that  property  was 
found  to  be  abandoned  by  its  owner  should  not  be  considered  as 
conclusive  that  the  owner  was  disloyal,  as  it  is  a  well-known  fact 
that  in  many  instances  there  was  a  wholesale  abandonment  of  towns 
on  the  approach  of  American  troops  by  reason  of  the  wild  stories 
circulated  among  the  natives  for  political  effect,  and  that  within  a 
few  days  or  weeks  practically  the  entire  population  would  return  to 
reoccupy  their  property.  In  such  cases  the  act  of  fleeing  from  the 
Americans  usually  was  not  an  indication  of  disloyalty  to  the  American 
Government.  Therefore,  in  the  Philippines  where  property  had 
been  taken  or  occupied  by  the  Government,  the  burden  should  be 
upon  the  Government  to  prove  the  disloyalty  of  the  native  and  not 
on  the  native  to  prove  his  loyalty.  The  state  of  affairs  in  the  seced- 
ing States  during  the  Civil  War  was  not  analogous  to  that  in  the 
Philippines.  During  the  Civil  War  those  States  which  seceded 
were  recognized  as  enemy  country,  and  their  inhabitants  were  recog- 
nized as  enemies,  and  therefore  individuals  who  resided  within  the 
limits  of  the  seceding  States  and  yet  claimed  to  be  loyal  were  required 
to  prove  their  loyalty.  0.  17219,  Jan.  13,  1906;  15204,  Apr.  19, 
1906;  15699,  Apr.  28,1906;  16545,  May  1,  1906;  16784,  May  2,  1906. 

VII  B  1 .  Wliere  private  property  is  seized  in  time  of  war  as  a 
military  necessity  and  the  Government  undertakes  to  compensate  the 
owner,  there  will  be  paid  a  sum  sufficient  to  cover  the  value  alone 
without  profit  to  the  owner.     C.  15448,  Nov.  5,  1908. 

VII  B  2.  Where  certain  carabaos  were  killed  during  the  Philippine 
insurrection  by  American  troops,  held  that  if  they  were  destroyed  as 
a  matter  of  military  necessity,  as  authorized  by  paragraph  15  of 
General  Orders  100,  Adjutant  General's  Office,  1863,  the  United  States 
would  not  be  liable  to  the  owners  of  the  animals,  nor  would  the  United 
States  be  liable  if  the  animals  were  destroyed  without  authority  by 
individual  soldiers  of  the  United  States,  as  the  United  States  is  not 
liable  for  the  torts  of  its  officers  or  agents.  The  foregoing  principles 
would  apply  whether  the  owners  of  the  animals  were  in  sympathy 
with  the  American  cause  or  not,  and  also  whether  or  not  they  had 
been  persecuted  because  of  their  American  sympathy.  C.  18 41 8, 
Dec.  22,  1905. 

VII B  3.  Where  property  is  destroyed  under  paragraph  15  of 
General  Orders  100,  Adjutant  General's  Office,  1863,  which  provides 
that  ''Military  necessity  *  *  *  allows  of  all  destruction  of  prop- 
erty, *  *  *  of  the  appropriation  of  whatever  an  enemy's  country- 
affords  necessary  for  the  subsistence  and  safety  of  the  Army;  it  makes 
no  difference  where  the  title  to  destroyed  property  lies,  whether  in  a 
national  of  the  beUigerent  who  destroys,^  or  in  the  enemy,  or  in  a 

1  See  Juraffua  Iron  Co.  v.  U.  S.,  212  U.  S.  297. 


CLAIMS  VII   B  4.  251 

neutral  (witliin  the  zone  of  operations),  and  no  compensation  is  due 
the  owner,  and  any  conu^ensation  that  may  be  given  for  such  kisses 
is  entirely  of  bounty.  But  under  paragraph  38  of  the  above  order, 
which  provides  that  ''private  propertv,  unless  forfeited  by  crimes  or 
by  offenses  of  the  owner,  can  be  seized  only  by  way  of  military  neces- 
sity for  the  support  or  other  benefit  of  the  Army  or  of  the  United 
States,"  and  winch  applies  to  property  taken  for  the  support  of  the 
Army,  or  for  the  furtherance  of  its  operations,  compensation  for  pri- 
vate property  taken  is  usually  paid  tlie  owner.  Paragraph  38,  how- 
ever, does  not  apply  to  cases  oi  looting  by  soldiers.  G.  16527,  Nov, 
12,  1904;  16526,  Apr.  17,  1906. 

VII  B  4.  During  the  Philippine  insurrection  the  public  market  in  a 
town  was  burned  by  order  oi  the  commanding  ofncer  as  a  military 
measure.  The  lire  accidently  spread  to  houses  adjoining  the  market 
which  were  not  intended  to  be  Durned,  and  they  were  consumed  by 
the  fire.  Claims  were  filed  for  the  value  of  the  property  burned  in  the 
market,  and  also  for  the  houses  and  other  property  burned  outside  of 
the  market.  Held  that  the  United  States  was  not  liable  for  the  loss 
of  property  in  the  market,  as  the  burning  was  done  as  an  act  of  mili- 
tary necessity  as  authorized  by  paragraph  15  of  General  Orders  100, 
Adjutant  General's  Office,  1863;  and  that  as  to  the  property  outside 
of  the  market  the  United  States  would  not  be  liable,  as  the  setting  fire 
to  the  market  place  was  a  lawful  act,  and  the  burning  of  the  houses  in 
question  was  the  result  of  an  accidental  spreading  oi  the  fire  without 
negligence  on  the  part  of  anyone.     C.  14972,  July  22,  1903. 

VII  B  5.  A  Spanish  vessel  was  captured  by  the  Army  in  1898  in  the 
harbor  of  Ponce,  Porto  Rico,  at  the  time  of  the  landing  of  the  United 
States  troops  at  that  place,  and  was  detained  and  used  by  the  United 
States  military  authorities.  The  captain  of  the  vessel  subsequently 
made  claim  for  damages  on  account  of  such  detention  and  use.  Held, 
that  the  claimant  was  not  legally  entitled  to  compensation  for  the 
seizure,  use,  and  detention  of,  or  for  damages  to,  the  vessel,  as  it  was 
private  property  belonging  to  the  enemy  and  seized  in  a  hostile 
country  Dy  way  of  military  necessity  for  the  benefit  of  the  Army  of 
the  United  States.^  C.  6O46,  Mar.  18,  1899;  III43,  Oct.  5,  1901. 
Held  also  that  the  instructions  of  the  President  in  regard  to  the  method 
of  carrying  on  the  war,  directing  that  receipts  be  given  for  private 
property  taken  for  the  use  of  the  Army,  that  the  property  be  paid  for, 
and  that  means  of  transportation,  though  they  may  be  seized  by 
the  militaiy  authorities,  yet  unless  destroyed  under  military  necessity 
shall  not  be  retained,  were  directions  to  the  officers  charged  with  their 
execution  and  do  not  give  rise  to  contractual  rights  against  the  United 
States  in  behalf  of  the  owners  of  private  property  of  the  enemy  seized  or 
dealt  with  contrary  to  such  instructions,  and  that  the  United  States 
would  not  be  liable  to  compensate  the  owner  for  the  use  and  detention 
of  such  a  vessel .2     C.  III43,  Dec.  23,  1901. 

'  See  11  Op.  Atty.  Gen.,  378;  U.  S.  v.  Pacific  R.  R.  Co.,  120  U.  S.,  227. 

2  See  Herrera  v.  U.  S.,  43  Ct.  CIs.  430;  222  U.  S.  558;  Diaz  v.  U.  S.,  43  Ct.  Cls. 
444.  As  to  the  effect  of  the  President's  proclamation  referred  to  in  the  above  para- 
graph, the  Supreme  Court  in  the  latter  case  said:  "It  is  not  possible  to  hold  that  the 
proclamation  of  the  President  was  intended  to  supersede  the  laws  of  war  and  attach 
to  every  appropriation  by  the  military  officers  conducting  operations  of  war  the 
obligations  and  remedies  of  contracts.  It  could  not  have  been  the  intention  of  the 
President  to  prevent  the  seizure  of  property  when  necessary  for  military  uses,  or  to 
prevent  its  confiscation  or  destruction. "  See,  also,  Magoon's  Reports  on  the  Law  of 
Civil  Government  under  Military  Occupation,  page  615. 


252  CLAIMS  VII   B   6. 

VII  B  6.  During  the  operation  of  the  British,  German,  Russian,  and 
American  troops  in  China  during  the  Boxer  rebelUon  of  1900  the 
railroad  running  between  Tientsin  and  Peking  was  taken  possession 
of  as  a  mihtary  necessity  by  the  mihtary  authorities.  The  road  was 
not  taken  possession  of  by  the  several  military  commanders  acting 
jointly,  but  was  alternately  seized  by  the  Russian,  German,  and  British 
military  authorities.  While  in  possession  of  these  authorities  the 
road  was  used  for  transportation  purposes  by  the  military  authorities 
of  the  United  States,  and  for  this  service  claim  was  filed  by  the  mili- 
tary representatives  of  these  several  armies  with  the  commander  of 
the  United  States  forces.  Held  that  there  could  be  no  doubt  of  the 
right  of  a  belligerent  to  take  forcible  possession  of  a  railroad  or  other 
means  of  transportation  and  to  use  the  same  in  liis  military  operations, 
and  that  the  same  right  would  exist  where  several  powers  were  operat- 
ing against  a  common  enemy,  although  the  powers  so  operating  may 
not  have  been  formally  allied.  Held,  further,  that  as,  when  the  forces 
of  several  States  are  operating  against  a  common  enemy,  one  may 
furnish  the  other  with  military  assistance  in  the  way  of  arms,  mili- 
tary supplies,  transportation,  medical  aid,  etc.,  and  as  the  property 
rights  of  the  corporation  owning  and  operating  the  railroad  should 
be  considered  as,  for  the  time  being,  vested  in  the  State  whose  mili- 
tary representatives  took  forcible  possession  of  the  railroad  as  a 
military  necessity,  the  transportation  furnished  over  the  road  in 
question  should  be  considered  as  furnished  by  the  State  whose 
military  representatives  were  in  charge  of  the  road  at  the  time,  and 
reimbursement  for  such  service  should  be  made  by  the  United  States 
to  such  military  representatives.  If  a  charge  is  to  be  made  for 
transportation  services  rendered  in  favor  of  the  United  States  the 
practice  should  be  reciprocal,  and  in  passing  on  such  claims  the  United 
States  should  take  credit  by  way  of  a  set-off  for  similar  services 
rendered  the  State  whose  mihtary  representative  filed  the  claim. 
C.  11107,  Aug.  19,  1901.  _     .      . 

VII  C  1 .  During  the  Phihppine  insurrection  a  municipal  building  in 
the  Philippine  Islands  was  occupied  by  United  States  troops  and  while 
in  their  possession  was  burned  through  the  negligence  oit  the  troops ; 
lield,  that  as  the  building  was  public  property  there  was  no  implied 
obhgation  to  pay  rent,  and  that  as  the  United  States  was  not  liable 
for  the  torts  oi  its  agents  it  would  not  be  liable  for  the  burning  of  the 
building.     C.  15318,  May  7,  1906;  26626,  Ajyr.  30,  1910. 

VII  C  2.  The  determination  of  whether  the  owners  of  property 
occupied  during  the  Philippine  insurrection  should  receive  compensa- 
tion for  its  use  must  depend  upon  the  circumstances  of  each  case. 
Where  property  is  used  in  the  actual  train  of  war,  as  for  a  stronghold 
or  a  fort,  or  for  the  preparation  of  defenses  no  compensation  is  due, 
but  where  houses,  for  instance,  are  occupied  in  a  semipermanent  way 
for  quarters  or  storehouses  compensation  is  paid  as  on  an  implied 
contract.     C.  1651^5,  May  1,  1906. 

VII  C  3.  Upon  the  occupation  of  Manila  in  August,  1898,  the 
military  authorities  leased  from  a  native  certain  premises,  which  the 
United  States  continued  to  occupy  until  April,  1901.  On  the  out- 
break of  the  insurrection  on  February  4,  1899,  the  owner  of  the 
premises  allied  himself  with  the  insurrection.  The  owner  was 
arrested  by  the  military  authorities  in  January,  1901,  as  a  member 
of  an  insurgent  committee  and  took  the  oath  of  allegiance  to  the 


CLAIMS  VII  C  4.  253 

United  States  January  13,  1001.  Heldj  that  the  lease  between  the 
owner  and  the  United  States  was  abrogated  by  the  action  of  the 
owner  in  taking  part  in  an  insurrection  against  the  lawful  authority 
of  the  United  States,  and  that  while  the  owner  continued  as  an 
insurgent  the  United  States  was  entitled  to  the  free  use  of  the  prem- 
ises as  abandoned  property  belonging  to  a  pubHc  enemy;  and  that 
upon  the  takin^ij  of  the  oath  of  allegiance  an  implied  contract  to 
pay  a  reasonable  rent  arose  in  regard  to  the  prefiaises.  G,  14994, 
July  28,1908. 

VII  V  4.  Wliere  in  time  of  war  a  building  was  occupied  under  an 
imphed  lease  by  United  States  Army  officers,  JieMy  that  the  fact  that 
the  building  was  burned  by  enemies  of  the  United  States  because 
it  was  occupied  by  American  officers  and  because  the  owners  were 
supposed  to  be  friendly  to  the  United  States  does  not  make  the 
United  States  liable  to  reimbui-se  the  owner  for  the  value  of  the 
building.     C.  11739,  Sept.  4,  1902. 

VII  D.  Where  certain  cotton  was  accidentally  destroyed  by  fire 
resulting  from  an  explosion  of  powder  and  ammunition  during  the 
possession,  by  the  United  States  military  forces,  of  Mobile,  Ala.,  in 
1865,  held,  that  the  owner  was  without  legal  claim  against  the  United 
States.  For  injuries  to,  or  destruction  of,  personal  property,  inci- 
dental to  legitimate  military  operations  in  war,  the  fcrovernment  is 
not  responsible,^  and  the  settlement  of  such  claims  arising  during 
the  Civil  War  was  specially  inhibited  by  the  act  of  February  21, 1867 
(14  Stat.  397).  R.  55,  828,  Jan.  20,  1888.^  So  heU,  where  a 
wounded  and  convalescent  soldier  was  on  military  duty  rendering 
clerical  services  at  the  time  Chambersburg,  Pa.,  was  burned,  and  in 
consequence  lost  personal  property  valued  at  $300.  C.  11181,  Sept. 
12,  1901. 

Wliere  a  claim  was  made  by  the  owner  for  damage  to  a  dwell- 
ing house  '^by  a  shell  fired  from  an  American  warship  on  or 
about  the  5th  of  July,  1898,  during  the  bombardment"  of  San- 
tiago, held,  that  the  United  States  was  not  legally  liable  for  the 
claim.i     C.  5619,  Jan.  5,  1899. 

VII  E.  During  the  Philippine  insurrection  the  commanding  officer 
of  a  certain  town  had  the  schoolhouse  belonging  to  the  town  torn 
down  and  the  stones  used  to  repair  the  town  road.  After  the  reestab- 
lishment  of  civil  government  the  town  filed  a  claim  against  the  United 
States  for  the  value  of  the  schoolhouse.  Held  that  during  the  period 
of  military  government  the  civil  administration  was  in  military  hands 
and  that  officers  of  the  Army  exercised  the  dual  functions  of  military 
officers  and  civil  administrators,  and  that  as  the  repair  of  roads  in 
the  Philippines  was  a  charge  against  Philippine  funds,  the  action  of 
the  commanding  officer  in  tearing  down  the  schoolhouse  and  repair- 
ing the  road  was  done  in  his  capacity  as  a  civil  administrator.  When 
the  military  government  ceased  its  successor  was  the  Philippine  civil 
government  and  not  the  United  States,  and  therefore  any  claim  for 
the  value  of  the  schoolhouse  should  be  made  against  the  Philippine 
government  and  not  against  the  United  States.  G.  19575,  May  8, 
1906.  So  held  where  a  stone  wall  belonging  to  a  private  person  was 
torn  down  by  orders  of  the  commanding  officer  during  the  Philippine 

^  See  U.  S.  tJ.  Pacific  R.  R.,  120  U.  S.,  227,  and  authorities  cited. 


254  CLAIMS  VII  F. 

insurrection,  and  the  material  used  to  revet  the  bank  of  a  river  to 
prevent  the  flooding  of  the  town.     G.  15126,  May  3,  1906. 

VII  F.  During  the  Philippine  insurrection  a  steam  launch  was  cap- 
tured by  the  Army  in  enemy  territory  and  was  appropriated  to  the 
use  of  tne  Army.  After  the  insurrection  the  former  owner  demanded 
return  of  the  launch.  Held  that  the  launch  did  not  constitute  a  mar- 
itime capture,  and  that  upon  its  capture  the  ownersliip  passed  to  the 
United  States,  and  there  was  no  authority  to  return  the  property 
except  by  authority  of  Congress.^  G.  I48OI,  June  19,  1903;  16693, 
Jan.  26,  1904. 

VII  G.  Claims  for  property  taken  from  loyal  citizens  for  the  use 
of  the  Union  army  during  the  Civil  War  were  taken  cognizance  of  by 
the  Southern  Claims  Commission;  but  this  commission  by  the  act  of 
June  15,  1878  (20  Stat.  566),  was  brought  to  an  end  March  10,  1880. 
Such  claims,  except  in  certain  special  cases,  were  excluded  from  the 
jurisdiction  of  the  Court  of  Claims,  and  the  general  statute  of  six 
years'  limitation  would  exclude  from  its  jurisdiction  any  such  claims 
accruing  at  dates  prior  to  that  period;  nor  has  the  Secretary  of  War 
authority  to  allow  such  claims.  The  only  means  of  relief  which  could 
now  be  afforded  in  such  cases  would  be  by  express  legislation  of  Con- 
gress.2     P.  61,  468,  Oct.  3,  1893;  G.  276 4,  Nov.  27,  1896. 

VIII.  A  bill  for  medical  service  incurred  by  an  officer  or  soldier 
while  in  a  status  of  leave  of  absence  or  furlough — as  distinct  from  a 
pass  for  not  exceeding  24  hours— (6^.  2^393,  Feb.  19,  and  Dec.  21, 1909, 
and  Jan.  6,  1910);  or  while  in  a  status  of  absence  without  leave 
(C.  12124,  Mar.  15,  1902;  13421,  Oct.  10,  1902;  24393,  Dec.  21,  1909) 
is  a  private  indebtedness  of  the  soldier,  and  not  an  obligation  of  the 
Government,  for  the  reason  that  the  officer  or  soldier  is  not  in  a  duty 

1  Lamar  v.  Browne,  92  U.  S.,  187. 

2  See  section  1059,  Rev.  St.,  and  the  act  of  Mar.  3, 1887  (24  Stat.,  505}.  The  follow- 
ing acts  have  been  passed  for  the  relief  of  those  who  have  suffered  losses  in  consequence 
of  war:  The  act  of  Mar.  12, 1863  (12  Stat,,  820),  known  as  the  "captured  and  abandoned 
property  act."  The  act  of  July  4,  1864  (13  Stat.,  381),  as  amended  by  the  act  of  Feb. 
21, 1867  (14  Stat.,  397),  provides  for  the  payment  of  claims  of  loyal  citizens  in  States  not 
in  rebellion,  for  quartermasters'  and  subsistence  stores  taken  and  actually  used  in  the 
Army  during  the  Civil  War.  Section  2  of  the  act  of  Mar.  3,  1871  (16  Stat.,  524),  makes 
similar  provision  in  regard  to  claims  of  loyal  citizens  in  States  in  insurrection.  The 
act  of  Feb.  27,  1902  (32  Stat.,  43),  as  amended  by  the  act  of  May  30,  1908  (35  Stat.,  499), 
provides  for  the  relief  of  those  who  had  their  horses,  side  arms,  and  baggage  taken  from 
them  by  Federal  troops  at  and  after  the  surrender  at  Appomattox,  in  violation  of  the 
terms  of  the  surrender.  See,  also,  16  Stat.,  678;  18  id.,  604;  23  id.,  12;  25  id.,  1188, 
1189,  1312;  27  id.,  744;  28  id.,  1039;  30  id.,  1401;  32  id.,  2345;  see,  also,  33  Congres- 
sional Record,  3516,  pt.  4.  The  act  of  May  27,  1902  (32  Stat.,  234),  provides  for  the 
payment  of  certain  sums  of  money  to  churches  and  colleges  which  were  occupied  and 
damaged  by  the  military  forces  of  the  United  States  during  the  Civil  War.  The  act 
of  Mar.  2, 1901  (31  Stat.,  877),  provides  for  a  Spanish  Claims  Commission  to  carry  into 
effect  the  stipulations  of  art.  7  of  the  treaty  between  the  United  States  and  Spain 
of  Dec.  10,  1898,  relative  to  the  claims  of  American  citizens  growing  out  of  the 
Spanish  War.  The  act  of  Mar.  26, 1908  (35  Stat.,  1227),  provides  for  the  payment  of  the 
claims  of  the  Roman  Catholic  Church  in  the  Philippine  Islands  for  damages  by  the 
troops  of  the  United  States.  The  act  of  Apr.  21,  1910  (36  Stat.,  1697),  provides  for  the 
payment  of  the  claims  of  certain  religious  orders  of  the  Roman  Catholic  Church  in  the 
Philippine  Islands,  for  the  use  and  occupation  of  property  by  the  military  forces  of 
the  United  States.  Acts  have  also  been  passed  to  reimburse  the  several  States  and 
Territories  for  expenses  incurred  by  them  in  connection  with  the  Civil  War  and  the 
Spanish  War. 


CLAIMS  IX.  255 

status  at  such  timcs.^  An  officer  absent  by  verbal  permit  for  not 
exceeding  24  hours,  or  a  soldier  absent  on  pass  for  not  exceeding  24 
hours,  is  considered  to  be  in  a  duty  status,  and  a  bill  for  medical 
services  properly  incurred  while  in  such  status  is  not  a  private  indebt- 
edness but  an  obligation  of  the  Government  to  be  paid  out  of  the 
proper  appropriation.  C.  20974,  J(in.  24,  1907,  and  Nov.  21,  1908; 
24393,  May  28  and  Oct,  3,  1910.  If  a  soldier,  while  absent  on  pass 
for  not  exceeding  24  hours  and  therefore  in  a  status  of  duty  becomes 
insane,  not  the  result  of  his  own  misconduct,  and  absents  himself 
without  authority,  the  insanity  so  occurring  while  in  a  status  of  duty 
will  prevent  the  absence  from  becoming  a  military  offense,  the 
soldier  wiU  be  considered  as  continuing  to  be  in  a  duty  status  within 
the  meaning  of  paragraph  1493,  Army  Regulations  (1498  of  1910), 
and  a  biU  for  medical  services  properly  incurred  while  so  absent 
without  authority  is  not  a  private  indebtedness  of  the  soldier,  but  is 
an  obligation  of  the  Government.  O.  24393,  Dec.  21,  1909,  and  May 
28,  1910.  Wliere  a  soldier  is  injured  while  playing  football,  the 
soldier  being  absent  from  his  station  with  authority  as  a  member  of 
the  post  football  team,  biUs  for  medical  service  in  connection  with 
this  injury  are  an  obhgation  against  the  Government  under  para- 
graph 1493,  Army  Regulations  (1498  of  1910).  C.  24398,  Feb.  13, 
1909.  If  a  soldier  while  absent  without  leave  or  in  desertion,  is  taken 
into  a  hospital  at  the  request  of  proper  military  authority  he  should 
be  regarded  while  in  hospital  as  in  constructive  military  custody  and 
bills  for  medical  attendance  from  that  moment  are  an  obligation 
against  the  Government  under  an  act  appropriating  for  ''medical 
care  and  treatment  of  officers  and  enlisted  men  on  duty,  and  prisoners 
of  war  and  other  persons  in  mihtary  custody  or  confinement." 
C.  16642,  July  25,  1904. 

IX.  Where  a  soldier,  sick  in  a  miUtary  hospital,  turned  over  to  the 
ward  master  his  money  for  safe-keeping  with  the  knowledge  of  the 
commanding  officer  of  the  hospital,  and  the  money  was  stolen  by 
the  ward  master;  Tield,  the  United  States  could  not  be  held  for  the 
loss.  C.  6269,  Apr.  20,  1902;  15157,  Aug.  27,  1903.  So,  held, 
where  jewelry  and  money  of  a  soldier  was  taken  possession  of  by  his 
company  commander  when  the  soldier  was  placed  in  confinement, 
and  was  not  returned  to  the  soldier.  C.  18292,  July  I4,  1905.  So, 
lield,  also,  where  the  clothing  of  a  military  convict  in  the  United  State 
military  prison  was  for  his  convenience  stored  according  to  prison 
regulations,  and  the  clothing  was  destroyed  by  fire.  C.  25692,  Oct. 
.23,  1909.  So,  held,  where  the  clothing  of  a  patient  in  a  military 
hospital  was  stolen,  and  it  had  been  recommended  that  the  stolen 
articles  be  replaced  by  the  Quartermaster's  Department.  C.  15157, 
Dec.  14,  1906.  So,  held,  where  a  sum  of  money  was  deposited  in  the 
company  safe  while  a  soldier  was  sick  and  was  afterwards  forwarded 
to  him  and  lost  in  the  mail.     C.  12621,  May  28,  1902. 

^  See  par.  1498,  A.  R.,  1910:  V  Comp.  Dec,  363;  also,  unpublished  decisions  of  Comp- 
troller of  Treasury  of  Sept.  11  and  Oct.  1,  1907,  filed  with  documents  belonging  to 
C.  17860,  Aug.  13  and  23,  and  Sept.  21,  1907,  that  a  bill  for  medical  services  rendered 
a  soldier  absent  with  authority  to  enable  him  to  attend  as  a  witness  before  a  civil 
court  js  a  private  indebtedness  of  the  soldier,  and  not  an  obligation  against  the  Govern- 


256  CLAIMS   X. 

X.  Where  a  retired  Army  officer  desired,  in  a  friendly  and  gratui- 
tous way,  to  help  a  discharged  regular  soldier  to  get  the  evidence 
necessary  to  support  the  ex-soldier's  claim  for  a  pension,  Tield  that  a 
retired  officer  was  an  "officer  of  the  United  States  within  the  meaning 
of  section  5498,  R.  S.,  which  provides  that  ''every  officer  of  the  United 
States  *  *  *  "v^ho  acts  as  an  agent  or  attorney  for  prose- 
cuting any  claim  against  the  United  States,  or  in  any  manner  or  by 
any  means  otherwise  than  in  the  discharge  of  his  proper  official 
duties,  aids  or  assists  in  the  prosecution  or  in  support  of  any  such 
claim,"  and  makes  such  person  subject  to  fine  or  imprisonment.^ 

C.  20254,  Aug.  20,  1906.  But  where  a  retired  post  quartermaster 
sergeant  solicited  the  claims  of  enlisted  men  for  a  20  per  cent  increase 
in  pay  for  foreign  service,  Tield  that  he  was  not  an  '^  officer  of  the 
United  States  or  a  person  holding  a  place  of  trust  or  profit  or  dis- 
charging any  function  under  or  in  connection  with  any  executive 
department"  within  the  meaning  of  section  5498,  R.  S.  C.  18202 j 
June  29, 1905. 

An  officer  proposing  to  bring  suit  in  the  Court  of  Claims,  under 
section  1059,  R.  S.,  for  the  amount  of  certain  subsistence  funds,  for 
which  he  had  been  made  responsible  through  the  dereliction  of  a  com- 
missary sergeant,  applied  to  the  Secretary  of  War  to  detail  an  officer 
of  the  Army  to  act  as  his  attorney  in  the  prosecution  of  the  claim. 
Held,  in  view  of  the  provisions  of  section  5498,  R.  S.,  that  such  detail 
could  not  lawfully  be  made.^     P.  35,  452,  Oct.  15,  1889. 

XI.  Paragraph  831,  A.  R.,  1908,3  (838of  1910),  provides  that ''no  in- 
formation mil  be  furnished  hj  any  person  in  the  military  service  which 
can  be  made  the  basis  of  a  claim  against  the  Government  except  it  be 
^ven  as  the  regulations  prescribe  to  the  proper  officers  of  the  War, 
Treasury,  or  Interior  Departments  or  the  Department  of  Justice,"  etc. 
Held  that  this  paragraph  applies  to  giving  voluntary  information  and 
was  riot  intended  to  prevent  testimony  from  being  given  in  the  due  and 
orderly  administration  of  legal  procedure  by  an  officer  or  soldier  of  the 
Army,  and  that  there  was  no  objection  to  an  officer  or  soldier  testify- 
ing in  a  claim  case  or  in  any  other  action  in  which  he  was  a  material 
witness  and  could  be  compelled  by  due  process  of  law  to  appear  and 

•  testify.  C.  7912,  Apr.  7, 1900;  23462,  June  16, 1908.  But  while  of- 
ficers and  employees  of  the  Government  are  subject  to  summons  as 
witnesses  in  private  litigation  the  same  as  other  citizens,  they  are  not 
required  to  testify  with  regard  to  matters  of  public  business  if,  in  the 
opinion  of  the  head  of  a  department,  the  disclosure  would  injuriously 

1  See  Flower  et  al.  v.  United  States,  31  Ct.  Cls.,  35. 

2  See  16  Op.  Atty.  Gen.,  478. 

3G.  O.  163,  W.  D..,  Sept.  21,  1906,  provides  that  "The  soliciting  of  pension  or 
other  claims  against  the  United  States  on  military  reservations  or  at  military  posts, 
camps,  or  stations,  including  general  hospitals,  is  hereby  prohibited,  and  commanding 
oflficers  will  take  measures  effectually  to  prevent  such  soliciting  within  the  limits  of 
military  reservations,  posts,  camps,  stations,  or  hospitals  under  their  comrnand.^  Offi- 
cers or  enlisted  men  who  give  information  with  a  view  to  aiding  persons  in  soliciting 
such  claims  will  be  brought  to  trial  for  violation  of  paragraph  831,  A.  R.,  as  amended 
by  G.  O.,  No.  159,  W.  D.,  Sept.  15,  1906,  and  civilian  employees  who  so  offend  will 
be  discharged,"  and  invites  attention  to  sec.  5498,  R.  S.,  which  punishes  by  fine  or 
imprisonment  "every  officer  of  the  United  States,  or  person  holding  any  placeof  trust 
or  profit,"  etc.,  "who  acts  as  agent  or  attorney  for  prosecuting  any  claim  against  the 
United  States,  or  in  any  manner  or  by  any  means,  otherwise  than  in  discharge  of 
his  proper  official  duties,  aids  or  assists  in  the  prosecution  or  support  of  any  such 
claim,"  etc. 


CLAIMS  XII  A.  257 

affect  the  public  interest.*  C.  7912,  Feb.  8,  1910.  Held  also  that  the 
furnishing  of  information  as  to  the  injury  of  an  employee  making 
claim  against  the  Government  under  the  act  of  ^lay  30,  1908  (35  Stat. 
556),  granting  to  certain  employees  of  the  United  States  the  right  to 
receive  from  it  compensation  for  injuries  sustained  in  the  course  of 
their  employment,  the  information  being  furnished  in  accordance 
mth  the  regulations  adopted  by  the  Secretary  of  Commerce  and 
Labor,  is  not  -vvithin  the  operation  of  the  above  paragraph  of  the 
regulations.     C.  23069,  Apr.  30,  1910. 

XII  A.  Held  that  the  provision  of  section  3480,  R.  S.,  making  it 
unlawful  to  pay  certain  claims  against  the  United.  States  to  persons 
who  promoted,  etc.,  the  late  rebellion,  created  a  personal  disability 
only,  which  could  not  operate  against  the  heirs  of  parties  thus  dis- 
qualified unless  they  too  participated  in  the  rebelUon.  R.  39,  417, 
Feb.  7, 1878. 

XII  B.  At  the  time  of  the  San  Francisco  earthquake  a  private 
steamer  was  used  for  several  days  in  connection  with  the  reUer  work, 
the  master  during  that  time  receiving  orders  from  several  Army 
and  Navy  officers.  A  claim  was  made  against  the  United  States 
for  compensation  for  the  use  of  the  vessel.  Held,  that  the  use  of  the 
vessel  did  not  benefit  in  any  way  the  Army  or  Navy,  and  that  the 
orders  given  by  the  Army  and  Navy  officers  were  given  in  their 
capacity  as  relief  agents  and  not  as  representing  the  United  States, 
and  the  United  States  would  not  be  liaole  to  the  owners.  C.  20652, 
Mar.  4,  and  Aj>r.  2,  1907. 

XII  C.  A  claim  was  made  against  the  United  States  by  an  attorney 
for  services  rendered  as  counsel  for  an  accused  officer  in  a  court- 
martial  trial.  Held,  that  the  claim  was  without  merit  as  against  the 
United  States,  and  that  the  Government  had  nothing  whatever  to  do 
with  its  payment.     P.  32, 165,  May  2, 1899. 

XII  D.  Where  a  claim  was  made  for  compensation  ror  time,  cost, 
and  expenses  incurred  in  gomg  from  Brooklyn,  N.  Y.,  to  Governors 
Island,  N.  Y.,  to  collect  fees  due  a  civilian  witness  before  a  court- 
martial,  lield  that  there  was  no  provision  of  law  fo^  the  payment  of 
such  a  claim.     C.  1807,  Nov.  2,  1895.         • 

XII  E.  A  soldier,  though  become  by  discharge  a  civilian,  has  no 
claim  against  the  United  States  for  pay,  in  the  nature  of  damages,  for 
a  period  during  which,  though  innocent  in  fact,  he  was  detained 
awaiting  trial  for  a  mihtary  offense  and  action  on  the  proceedings.  P. 
42,  375,  Aug.  23,  1890.  So,  where  a  civihan,  arrested  on  reasonable 
grounds  of  suspicion  that  he  was  a  deserter  from  the  mihtary  service, 
was  detained  in  confinement  at  a  mihtary  post  till  it  was  ascertained 
that  he  was  not  such,  lield  that  he  had  no  legal  claim  for«damages 
against  the  United  States.    P.  43,  145,  Oct.  4,  1890. 

*  Sec.  882,  R.  S.,  provides  that:  "Copiea  of  any  books,  records,  papers,  or  documents 
in  any  of  the  executive  departments,  authenticated  under  the  seals  of  such  depart- 
ments, respectively,  shall  be  admitted  in  evidence  equally  with  the  originals  thereof." 
In  reference  to  the  above  section  of  the  Revised  Statutes,  the  Secretary  of  War,  in  a 
circular  of  the  War  Department  of  1887,  directed  that:  "In  submitting  copies  of  papers 
for  the  attestation  of  the  Secretary  of  War  chiefs  of  bureaus  will  state  whether  the  rule 
of  the  department  on  the  subject  nas  been  complied  with,  viz :  It  is  not  deemed  proper 
to  intrust  attested  transcripts  of  the  public  records  to  private  persons  for  use  in  con- 
troversies in  which  the  United  States  has  no  real  interest,  except  upon  the  certificate 
of  the  tribunals  before  which  such  controversies  are  to  be  decided  that  such  transcripts 
of  the  public  records  are  deemed  essential  to  the  ends  of  justice." 

31106°— 12 17 


258  CLAIMS  XII  F. 

XII  F.  There  is  no  law  authorizing  the  executive  department  of 
the  Government  to  pay  claims  for  damages  on  account  of  injuries 
received  by  persons  employed  in  the  construction  of  public  buildings, 
or  in  river  and  harbor  improvements,  and  in  the  absence  of  such  a 
statute  the  executive  department  is  without  power  to  pay  them.^ 
C,  366,  Sept.  21,  1894;  2082,  Feb.  24,  1896. 

XII  G.  Section  1304,  R.  S.,  which  requires  that  a  deficiency  charged 
against  an  officer,  as  in  the  present  case,  shall  be  deducted  from  his 
monthly  pay,  unless  he  shall  show  to  the  satisfaction  of  the  Secretary 
of  War  that  such  deficiency  was  not  occasioned  by  his  fault,  applies 
only  to  claims  for  relief  from  accountability  on  the  part  of  actual 
officers  of  the  Army,  and  can  not  be  extended  to  a  case  of  such  a  claim 
made  by  a  person  formerly  in  the  Army  but  had  long  been  a  civilian. 
P.  60,  124,  June  17,  1893;  65,  137,  May  28,  1894. 

XII H.  A  certificate  of  pay,  as  due  on  a  final  statement,  was  errone- 
ously given  by  his  commanding  officer  to  a  soldier,  to  whom  there  was 
in  fact  no  pay  due.  The  soldier  indorsed  the  certificate  for  collection 
to  a  bank,  by  which  it  was  indorsed  for  the  same  purpose  to  another 
bank.  This  bank  presented  it  to  a  paymaster,  who  paid  it.  On  dis- 
covery of  the  error,  the  amount  was  stopped  against  the  paymaster. 
The  second  bank  then  refunded  to  him  the  sum  paid,  and  made  claim 
for  it  upon  the  War  Department.  Held  that  such  bank  had  no  legal 
claim  upon  the  United  States,  but  that  its  recourse  was  properly 
against  the  first  bank.     P.  35,  447,  Oct  15,  1889. 

XII  I.  A  contract  nurse  who  lost  private  property  by  the  sinking 
of  a  United  States  hospital  ship  submitted  a  claim  for  the  amount  of 
the  loss.  Held,  that  such  claims  could  not  be  paid  without  special 
authority  from  Congress.     C.  5215,  Nov.  4,  1898. 

XII  J.  Where  in  the  course  of  the  transportation  by  railroad,  at 
Government  expense,  of  an  officer's  allowance  of  personal  baggage, 
the  boxes  contaming  the  same  were  broken  into  and  a  portion  of  the 
property  was  stolen,  held,  that  the  remedy  of  the  officer  was  against 
the  railroad  company,  not  against  the  United  States.  The  United 
States  does  not  make  itseK  an  insurer  in  such  a  case;  nor  can  the  officer 
require  the  United  States, to  sue  the  company  in  damages,  for  this 
could  be  done  only  on  the  theory  that  the  United  States  was  responsi- 
ble to  the  officer  for  the  value  of  property  lost  by  no  fault  or  negligence 
of  its  own.     R.  49,  572,  Dec.  24,^  1885. 

XII K.  There  is  no  appropriation  under  the  War  Department 
from  which  the  sender  of  a  registered  mail  package  lost  while  on  board 
an  Army  transport  can  be  paid.     C.  18316,  July  20,  1905. 

XII L.  Where  certain  lands  were  leased  for  maneuver  purposes 
and  a  cl^im  was  made  for  the  cost  of  forage  necessary  to  be  fed  to  the 
stock  of  a  lessor  during  the  period  of  the  maneuvers  because  the  stock 
had  to  be  kept  off  the  pasture  lands,  Tield  that  such  an  expense  was  a 
necessary  incident  to  the  operation  of  the  lease,  as  the  lease  would 
operate  to  deprive  the  lessor  of  the  use  and  occupancy  of  the  land 
during  the  period  of  maneuvers,  and  therefore  the  claim  should  be 
denied.     C.  16525,  Sept.  26, 1904. 

XII  M.  Section  1876,  R.  S.,  provides  that  ''No  head  of  a  department 
shall  employ  an  attorney  or  counsel  at  the  expense  of  the  United 

^  But  since  the  above  opinion  was  rendered  the  act  of  May  30,  1908  (35  Stat.  556), 
was  enacted  granting  to  certain  emploj^ees  of  the  United  States  the  right  to  receive 
from  it  compensation  for  injuries  sustained  in  the  course  of  their  employment. 


CLAIMS   XII   N.  259 

States,  but  when  in  need  of  counsel  or  advice  shall  call  upon  the 
Department  of  Justice,  the  officers  of  which  shall  attend  to  the  same." 
Section  365,  R.  S.,  provides  that  no  compensation  shall  be  allowed 
to  any  person,  besides  the  respective  district  attorneys,  for  services 
as  attorney  or  counsel  to  the  United  States.  Held  that,  in  view  of 
the  prohibition  of  the  above  statutes,  the  Secretary  of  War  had  no 
authority  to  pay  the  claim  of  an  attorney  for  legal  services  in  con- 
nection with  the  purchase  of  land  at  Fort  WilHam  McKinley,  Manila, 
P.  1}     C.  12154,  Jdn.  3, 1903. 

XII  N.  Where  an  attorney  submitted  to  the  War  Department  a 
claim  for  services  rendered  an  enlisted  man  in  a  habeas  corpus  pro- 
ceeding, no  notice  of  such  employment  having  been  previously  given, 
it  was  held  that  the  employment  and  payment  of  the  attorney  were 
proliibited  by  sections  189  and  365,  R.  S.,  and,  further,  that  in  view 
of  section  366,  R.  S.,  payment  of  the  claim  could  not  be  made  except 
by  special  act  of  Congress.^  C.  7256,  Dec.  9,  1899.^  So  held,  also, 
where  an  attorney  rendered  services  in  connection  with  the  recovery 
of  property  of  the  United  States  that  had  been  stolen.  C.  114-58, 
Nov.  8,  1901.  Also,  where  an  attorney  defended  an  officer  before  a 
civil  court  in  a  matter  growing  out  of  the  discharge  of  his  official 
duties.     C.  14570,  Apr.  29, 1903. 

XII  O.  The  United  States  is  not  liable  for  fees  and  expenses  of  a 
coroner  in  holding  an  inquest  over  a  deceased  soldier,  and  no  officer 
of  the  Government  is  authorized  to  bind  the  Government  for  such 
services.     C.  6341,  May  1, 1899. 

XII  P.  An  executive  official  can  not,  of  his  own  authority],  a]3pro- 
priate  the  money  of  the  United  States  for  the  purpose  of  satisfjT^ing  a 
claim.  So  held  that  the  Secretary  of  War  could  have  no  authority  to 
reimburse  a  claimant  for  the  amount  of  a  tax  assessed  upon  him  by  the 
mihtary  authorities  during  the  war,  and  expended  in  the  pubHc  ser- 
vice, whether  or  not  the  same  was  legally  exacted,  but  that  Congress 
must  be  appfied  to  for  the  necessary  action.^  B.  18,  668,  March  16, 
1866. 

XII  Q.  Where  a  paymaster  of  the  Armjr  seeks  to  be  relieved  from 
liabiHty  for  pubfic  funds  stolen  when  in  his  charge,  he  should  credit 
himself  in  his  account  current  with  the  amount,  and  this  credit  being 
disallowed  at  the  Treasury,  he  will  have  the  recourse  of  an  application 
for  rehef  to  the  Court  of  Claims  under  section  1059,  R.  S.  It  has 
been  ruled  by  the  Supreme  Court  *  that,  until  the  disbursing  officer 
has  been  '4ield  responsible"  by  the  accounting  officers,  his  right  to 
have  recourse  to  the  Court  of  Claims  does  not  accrue.  P.  51,  4^^, 
Jan.  27,  1892. 

XII  R.  Where  the  personal  property  of  an  officer  is  stored  in  a  Gov- 
ernment storehouse  during  his  absence  on  duty,  and  while  so  stored 

^  See  VI  Comp.  Dec,  133,  making  a  distinction  betweem  legal  services  and  services 
rendered  in  preparing  an  abstract  of  title. 

2  See  par.  1012,  A.  R.,  1910. 

^  A  claim,  though  deemed  by  the  Secretary  of  War  to  be  probably  just,  can  not  in 
general,  in  the  absence  of  any  appropriation  for  its  payment,  or  other  authority  to 
allow  the  same,  properly  be  entertained  by  him.  And  where  to  pass  upon  a  claim 
must  be  clearly  quite  futile,  a  consideration  of  its  merits  will  in  general  be  out  of 
place,  and  the  claimant,  without  being  heard  thereon,  will  properly  be  referred  to 
the  department  of  the  Government  empowered  by  law  to  take  specific  action  in  his 
case. 

*U.  S.-y.  Clarke,  96  U.  S.,  37. 


260  CLAIMS — CLOTHING  ALLOWANCE. 

is  stolen,  lield  that  the  Government  is  not  Hable  for  the  loss.  G.  6690, 
July  6,  1899;  15548,  Nov.  30,  1903.  So,  held,  also,  where  the  lockers 
of  certain  enlisted  men  were  stored  on  a  military  reservation  during 
their  absence  on  temporary  dutv  and  the  contents  were  stolen.  C. 
22715,  Feb.  6,  1908.  So,  held,  also,  where  the  property  of  a  mihtary 
convict  was  stored  for  his  convenience  on  the  reservation  and  was 
destroyed  by  fire.     C.  25692,  Oct.  23,  1909. 

XII  S.  Several  years  after  a  horse  had  been  purchased  by  the 
Government  a  private  j)erson  laid  claim  to  it,  alleging  that  the  animal 
had  been  stolen  from  him  and  subsequently  sold  to  the  Government, 
held  that  if  the  claimant  could  establish  his  ownership  of  the  horse  he 
was  entitled  to  it,  since  the  vendor  could  grant  no  better  title  than 
he  himself  had,  and  recommended  that  if  the  claimant  should  attempt 
to  replevy  the  animal,  the  person  from  whom  the  Government  pur- 
chased should  be  adviseS  of  the  action  and  called  upon  to  defend  the 
proceedings  in  order  that  in  any  subsequent  suit  by  the  United  States 
against  him  for  damages  resulting  from  a  breach  of  the  warranty  of 
title  he  would  be  concluded  on  the  question  of  title  by  the  suit.  C. 
17433,  Feb.  7, 1905. 

XII  T.  Held  that  a  claim  by  an  officer  to  be  allowed  extra  compen- 
sation for  services  rendered  by  him  as  clerk  to  a  general  court-martial 
of  wliich  he  was  the  junior  member,  was  wholly  without  sanction  in 
law  or  regulation.     R.  22,  578,  Feb.  4,  1867. 

CROSS   REFERENCES. 

Assignment  of. See  Contracts  XIV  G. 

Captures  in  war See  War  I  C  6  c  (3). 

Court  reporter  for  service See  Army  I  G  3  a  (4)  (a)  [3]. 

Final  statement — incorrect See  Pay  and  allowances  III  B  6  a. 

Pay  of  deceased  soldier See  Militia  XI  Q. 

Reimbursement  for,  in  case  of  judgment  See  Desertion  V  F  19. 

against  apprehender  of  deserter. 

Settlement  of. See  Army  I  B  1  b. 

Suspension  of. See  Discipline  XII  A  11  a. 

Unauthorized  claim  arising  from  joint  en-  See  Militla  VI  B  2  L 

campment. 
United  States,  for  damage  to  arms  issued  to  See  Military  instruction  II  B  2  d. 

colleges. 

CLEMENCY. 

Grounds  for See  Discipli>ie  XV  F  to  G. 

Pardon  VI. 
Recommendation  by  court See  Discipline  XII  E  1  to  2. 

CLOTHING. 

Disposition  of  condemned See  Militia  IX  D . 

Issues See  Pay  and  allowances  II A  3  a  (4)  to  (5) . 

Prisoners,  issues  to *. See  Pay  and  allowances  III  C  1  d  (1). 

Seizure  of,  after  sale  by  soldier See  Public  property  IX  B  2. 

Sold  to  a  State See  Public  property  I  A  4  a. 

Title  to  soldier's See  Public  property  IX  B  2. 

See  Pay  and  allowances  II  A  3  a  (4)  (a). 

CLOTHING  ALLOWANCE. 

To  general  prisoners See  Army  I  B  7  a. 

To  soldiers See  Pay  and  allowances  II  A  3  a  to  b. 


COAST  ARTILLERY — COMMAND:  SYNOPSIS.  261 

COAST  AETILLERY. 

SeeARMYlG2b(l);(2). 

Enlistment  of  colored  men See  Enlistment  I  A  12. 

Of  militia See  Militia  III  D. 

COLLEGES* 

Bonds  of. See  Bonds  IV  to  V. 

Furnishing  anns  to  and  military  instruction 

at See  Military  instruction  II  B  1;  2. 

Militia  company  at See  Militia  III  L. 

Retired  officers  instructors  at See  Retirement  I  K  3  to  4. 

COLLUSION. 

Among  bidders See  Contracts  VI  J  4. 

With  bounty  jumpers See  Articles  op  War  LXII  D. 

With  contractor See  Articles  of  War  LX  A  2. 

With  deserter See  Desertion  VF  14. 

COMMAND. 

I.  ELIGIBILITY  TO  COMMAND. 

A.  Is  Conveyed  by  Rank Page  263 

1.  In  staff  departments  by  presidential  assignment. 
a.  Detailed  staff  officers. 

B.  Marine  Officer  Requires  Presidentla.l  Assignment. 

C.  By  Chief  or  Assistant  Chief  op  Constabulary Page  264 

n.  JUNIOR  CAN  NOT  COMMAND  SENIOR. 

m.  BY  THE  COMMANDER  IN  CHIEF. 

A.  May  Assume  Direct  Command. 

B.  He  Generally  Delegates  Command. 

C.  May  Detail  Engineer  Officers  to  Work  Committed  to  the  Inte- 

rior Department Page  265 

IV.  BY  DIVISION  OR  DEPARTMENT  COMMANDER. 

A.  Can  Not  Assign  Marine  Officer  to  Duty. 

B.  Can  Not  Issue  Travel  Orders  for  Sanitary  Inspector. 
V.  BY  COMMANDING  OFFICER. 

A.  Post  Commander. 

1.  Over  officer. 

a.  May  relieve  him  from  duty  with  an  organization  and  assign 

him  to  another. 

b.  May  withdraw  privilege  of  leaving  post. 

c.  Can  not  issue  travel  orders. 

d.  May  allow  limits  of  command  to  officer  under  suspension. 

2.  Over  enlisted  men. 

a.  Can  not  prohibit  soldier  from  marrying Page  266 

b.  May  forbid  them  to  enter  saloons,  etc. 

c.  Can  require  duty  of  soldier  on  bail. 

d.  Responsibility  for  ordering  to  duty  a  soldier  whom  the  surgeon 

has  excused. 

e.  Can  not  surrender  private  trust  money  of  men  of  command. 

f.  Should  return  to  the  owner  money  seized  from  a  soldier  which 

the  latter  has  obtained  lui lawfully. 


262  COMMA:fTD:   SYNOPSIS. 

V.  BY  COMMANDING  OFFICER— Continued. 

A.  Post  Commander — Continued. 

3.  Over  civilians. 

a.  Can  exclude  them  from  reservation Page  267 

b.  Should  not  allow  post  to  become  asylum  for  fugitives  from 

justice. 

c.  Arrest  of  civilian  on  post  for  commission  of  crime. 

(1)  At  Rock  Island  Arsenal. 

d.  Removal  from  post. 

(1)  AtWestPoint,  N.  Y. 

(2)  Can  remove  soldier's  wife  from  post. 

e.  Can  not  search  private  house  for  soldier's  clothing  without  a 

warrant. 

f .  As  to  fishing  on  the  reservation Page  268 

g.  Prosecution  of  civilians  for  cutting  hay.  ' 

4.  Can  not  refer  cases  to  general  court-martial. 

5.  Can  not  act  as  counsel  for  accused. 

6.  Procedure  in  case  of  receipt  of  writ  of  habeas  corpus. 

a.  From  Federal  court. 

(1)  Produces  body. 

b.  From  State  court. 

(1)  Makes  return Page  269 

(a)  Resists  attempt  to  discharge  party Page  270 

(b)  Rearrests  prisoner  if  discharged. 

7.  Procedure  in  case  of  death  of  officer  or  soldier. 

8.  May  furnish  guardhouse  accommodations  for  civilian  prisoners  on 

request. 

B.  Transport  Commander. 

1.  May  assign  officer  to  duty  on  his  return  from  leave. 

2.  Duty  when  offense  is  committed  on  board. 

a.  By  person  subject  to  Articles  of  War Page  271 

h.  Against  a  civilian. 

c.  By  civilian  against  civilian  on  high  seas. 

3.  ^\Tien  United  States  and  State  warrants  are  presented. 

4.  Transport  quartermaster  may  command. 

5.  Officer  of  constabulary  may  not  command. 

C.  Regimental  Commander. 

1.  Appoints. 

a.  Regimental  staff  officers Page  272 

b.  Battalion  staff  officers. 

c.  Noncommissioned  officers. 

2.  Can  not  reduce  company  noncommissioned  officers  without  recom- 

mendation of  company  commander. 

VI.  COMPANY  COMMANDER. 

A.  Delegation  of  Authority  to  Noncommissioned  Officers. 

1.  To  make  arrests. 

2.  To  hear  requests  or  complaints Page  273 

B.  Can  Not  Force  Soldier  to  Deposit  Money. 

C.  Holding  Soldier's  Money  in  Trust. 
Vn.  AN  INDEPENDENT  COMMANDER. 

A.  May  Issue  Travel  Order. 


COMMAND   I   A.  263 

I  A.  The  terras  ''rank"  and  ''command"  are  neither  convertible 
nor  synonymous.  Rank  is  created  by  law  and  is  conferred  by  an 
exercise  of  the  appointing  power.  It  conveys  eligibility  merely  to 
exercise  command  or  control  in  the  military  service.  Neither  is  rank 
office,  but  it  may  be  an  attribute  or  incident  of  office.  Held  that  the 
power  to  exercise  command  or  control  is  conferred  in  some  cases  by 
statute  and  in  other  cases  is  conferred  or  delegated  by  the  President 
in  his  capacity  as  Conmiander  in  Chief  of  the  constitutional  military  - 
forces.     C.  17508,  Feb.  15,  1905. 

I  A  1.  Wliile  all  commissioned  officers  of  the  Army  are  assigned 
military  rank  by  express  operation  of  law,  they  are  not  all  equally 
eligible  to  exercise  military  command.  What  are  known  as  staff 
officers  exercise  command,  or,  more  properly  speaking,  control  in 
their  own  departments  onlv.^  They  are  expressly  forbidden  by  law 
to  exercise  command  in  the  line,  but  by  the  express  order  of  the 
President  and  in  virtue  of  a  specific  assignment  they  may  exercise  the 
functions  of  any  command  in  the  line  of  the  Army  to  which  it  may 
please  the  President  to  assign  them.  Held  that  it  is  within  the  au- 
thority of  the  President  as  the  Commander  in  Chief  of  the  constitutional 
military  force  to  assign  the  Adjutant  General  of  the  Army  to  the 
command  of  the  Department  of  the  East,  and  that  the  latter  after 
such  assignment  may  legally  exercise  in  such  department  such  powers 
of  command  as  the  President  may  be  pleased  to  delegate  in  appro- 
priate Executive  orders  to  that  effect  .^     C.  15253,  Sept  12,  1903. 

I  A  1  a.  Under  recent  legislation  officers  of  the  line  are  detailed  for 
a  limited  tenure  to  office  in  certain  of  the  staff  departments  and  on 
the  General  Staff.  Held  that  during  the  incumbency  by  a  line  officer 
of  office  in  the  General  Staff  that  his  power  to  assume  or  exercise 
command  in  the  line  is  in  abeyance,  and  that  for  that  reason  such  an 
officer  can  not  assume  command  of  a  department  in  the  event  of  its 
permanent  commander  being  ordered  to  another  field  of  duty  in  the 
military  establishment.     G.  23317,  May  25,  1908. 

I  B.  An  officer  of  the  Marine  Corps  was  returning  from  the  United 
States  to  Cuba,  where  the  organization  to  which  he  belonged  was  on 
duty  with  the  Army  of  Cuban  Pacification.  Held  that  he  could  not 
legally  assume  command  of  troops  on  board  the  transport  without 
a  direct  assignment  by  the  President  to  that  effect.  G.  24-712,  Apr.  2, 
1909.  Similarly  lield  in  the  case  of  a  Marine  officer  who  had  been 
detailed  for  service  with  the  Army  in  Cuba,  but  who  was  travehng 

^  Officers  of  the  Engineer,  Pay,  and  Medical  Departments  are  expressly  forbidden 
by  law  to  exercise  command  in  the  line  or  in  other  corps  or  departments  of  the  staff. 

^  Staff  officers  have  been  assigned  to  command  in  several  instances.  Thus  (1) 
Maj.  Gen.  Alexander  Hamilton,  Inspector  General,  exercised  command  of  the  Army 
from  1798  to  1800;  (2)  Brig.  Gen.  Zebulon  M.  Pike,  Adjutant  General,  was  in  command 
of  a  brigade  when  killed,  Apr.  27,  1813;  (3)  Brvt.  Maj.  Gen.  Thomas  S.  Jesup,  Quar- 
termaster General,  was  assigned  to  the  command  of  troops  in  Florida,  in  General 
Orders,  No.  32,  A.  G.  O.,  May  20, 1836;  (4)  Col.  J.  K.  F.  Mansfield,  Inspector  General, 
was  assigned  to  the  command  of  the  Department  of  Washington  by  General  Orders, 
No.  12,  War  Dept.,  A.  G.  O.,  Apr.  27,  1861;  (5)  Maj.  Gen.  H.  C.  Corbin,  Adjutant 
General,  was  detailed  as  a  member  of  the  General  Staff  in  General  Orders,  No.  88, 
Hdqrs.  of  the  Army,  A.  G.  O.,  June  20, 1903,  and  as  Assistant  to  the  Chief  of  Staff  by 
General  Orders,  No.  2,  War  Dept.,  Aug.  15,  1903.  He  was  relieved  from  duty  on  the 
General  Staff  by  par.  16,  Special  Orders,  No.  41,  War  Dept.,  Oct.  2, 1903,  and  assigned 
by  the  President  to  the  command  of  the  Division  of  the  Atlantic  by  General  Orders, 
No  65,  War  Dept.,  Dec.  22,  1903;  relieved  from  the  command  of  the  Division  of  the 
Atlantic  and  assigned  to  the  command  of  the  Philippines  Division  by  General  Orders, 
No.  106,  War  Dept.,  June  16,  1904. 


264  COMMAND  I  C. 

without  troops  and  under  orders  that  did  not  contemplate  any  exer- 
cise of  military  command  on  his  part.     G.  25586,  Sept.  25,  1909. 

I  C.  The  office  of  assistant  chief  of  Pluhppine  Constabulary  is  a 
civil  office  to  which  militaiy  rank  attaches  by  oj^eration  of  law,  and 
the  rank  so  attached  is  in  no  way  necessary  to  or  involved  in  the 
exercise  of  the  functions  of  the  office  of  assistant  chief  of  constabu- 
lary, which  was  purely  civil  in  their  nature,  and  must,  I  think,  be 
regarded  as  having  been  authorized  by  Congress  for  the  purpose  of 
determining  the  pay  and  emoluments  of  the  incumbent.  It  will, 
I  think,  also  appear  that  the  measure  of  the  command  which  may  be 
exercised  by  a  detailed  incumbent  of  such  office  is  set  forth  in  the  act 
of  January  30,  1903  (32  Stat.,  783).  The  first  section  of  the  act 
expressly  authorizes  the  detail  of  officers  of  the  Army  ''for  service 
as  chief  and  assistant  cliiefs  of  the  Philippine  Constabulary";  but, 
as  the  offices  named  are  civil  offices,  service  in  that  capacity  is  civil, 
as  distinguished  from  military  service,  and  the  status  occupied  by 
such  chief  or  assistant  chiefs  is  a  civil  status  to  which,  in  conformity 
to  the  requirements  of  the  section  last  above  cited,  a  limited  power 
to  exercise  military  command  attaches.  From  the  definitions  already 
given  of  ''rank"  and  "command"  it  has  been  seen  that  the  mere 
possession  of  military  rank  does  not  authorize  its  possessor  to  exer- 
cise military  command.  The  officer  in  charge  oi  public  buildings 
and  grounds  in  Washington,  for  example,  is  clothed  with  the  rank 
of  colonel  in  virtue  of  the  legislative  grant  of  rank  which  is  embodied 
in  the  act  of  March  3, 1873  (17  Stat.,  535),  but  he  can  exercise  no  com- 
mand in  the  line  or  control  in  the  staff  in  virtue  of  the  attribution 
of  rank  which  is  attached  to  his  incumbency  of  that  office.  In  a 
precisely  similar  manner  the  rank  of  colonel  attaches  by  operation 

of  law  to   the  office  held  by  Col.  S as  assistant  cnief  of  the 

Philippine  Constabulary,  but  mere  attribution  of  rank  conveys  no 
right  to  exercise  military  command,  which  must  be  sought  in  a  special 
assignment  by  the  President  or  in  an  appropriate  enactment  of 
Congress;  and  such  a  grant  of  power  to  exercise  military  command 
will,  in  fact,  be  found  in  section  2  of  the  act  of  January  30,  1903. 
a  17508,  Feb.  15,  1905. 

II.  The  power  to  command  can  only  be  delegated  to  a  senior  to  be 
exercised  over  his  juniors  in  rank.  This  follows  from  the  fact  that  the 
organization  prescribed  by  Congress  provides  for  grades  of  rank  and,  in 
its  rules  for  the  government  of  the  land  forces,  that  body  prescribes  a 
system  of  subordination  in  accordance  therewith.  In  the  rules  so 
prescribed,  obedience  to  superiors  is  made  the  foundation  of  all  dis- 
cipline, and  the  specffic  article  which  enjoins  obedience  makes  the 
crmie  of  disobedience  of  orders  a  capital  offense.  Command,  there- 
fore, whether  exercised  directly  or  in  delegation,  must  be  exercised 
in  accordance  with  the  legislation  of  Congress  in  respect  to  rank  and 
subordination  in  the  military  service.  0. 15253,  Sept.  12, 1903;  26612, 
Apr.  6,  1910,  and  May  13,  1910. 

Ill  A.  The  President  may,  as  Commander  in  Chief,  assume  direct 
command  of  troops  in  the  field  when  his  discretion  dictates  that  to  be 
necessary  in  the  pubhc  interest. ^     C.  8383,  May  26, 1900, 

III  B.  The  power  of  the  President  to  command  not  only  can  but, 
in  a  majority  of  cases,  must  be  made  the  subject  of  delegation;  the 

^  During  the  whisky  insurrection  of  1794  in  Pennsylvania,  President  Washington 
assumed  command  of  the  Federal  troops  in  person. 


COMMAND  III  0.  265 

President  can  not  be  personally  present  in  every  theater  of  military 
activity  or  at  eveiy  point  where  military  forces  are  stationed,  and  this 
fact  is  recognized  by  Congress  in  its  legislation  providing  a  special 
class  of  officers,  of  the  grade  of  major  and  brigadier  general,  who  do 
not  form  a  part  either  of  the  lino  or  staff,  but  are  mamtained  for  the 
ex])ress  purpose  of  exercising  such  commands  in  the  military  estab- 
lishment as  may  be  delegated  to  them  by  the  President.  G.  15263, 
Sept.  12,  1903. 

inc.  Wlien  the  detail  of  officers  of  the  Engineer  Corps  was 
desired  in  connection  wdth  engineering  questions,  committed  to  the 
Interior  Department  for  execution,  Jield  that  under  the  authority 
conferred  by  section  1158,  R.  S.,  the  President  would  be  authorized 
to  make  the  detail.^     G.  26574,  Apr.  ^^,  1^10. 

IV  A.  A  department  or  division  commander  is  without  authority 
to  assign  an  officer  or  enhsted  man  of  the  Marine  Corps  to  duty  on 
shore  or  on  an  Army  transport,  as  such  an  assignment  can  only  be 
made  by  the  President.  G.  24362,  July  21,  1909;  25586,  Sept  17, 
1909. 

IV  B.  HeU  that  in  view  of  the  act  of  August  6,  1894  (28  Stat.  235), 
division  commanders  may  not  legally  issue  orders  to  sanitary  inspec- 
toi-s  (medical  officers),  of  their  command  directing  such  sanitary 
inspectors  to  make  inspections  or  investigations  involving  travel 
and  claims  for  mileage.     G.  28833,  Aug.  14,1911. 

V  A  1  a.  On  the  question  of  whether  a  post  commander  has  authority 
under  the  regulations  and  approved  customs  of  the  service  to  relieve 
an  officer  (not  of  his  own  regiment)  from  command  of  the  company  to 
which  he  is  regularly  assigned  and  attach  him  to  duty  with  another 
company  that  is  provided  with  an  officer,  Tield  that  a  post  com- 
mander has  such  authority.     G.  26140,  June  2,  19W- 

V  A  1  b.  Leaving  the  hmits  of  the  station  at  which  an  officer  is  on 
duty  is  a  privilege  and  not  a  right,  the  privilege  being  accorded  by 
the  commanding  officer.  Held,  therefore,  that  a  post  commander  may 
withdraw  from  an  officer  under  his  command  the  privilege  of  leaving 
the  post  without  regard  to  whether  or  not  the  officer  is  under  charges  or 
in  arrest,  or  under  sentence.  G.  26140,  June  2, 1910.  Held,  that  an 
order  by  a  post  commander  to  the  effect  that  any  officer  whose 
explanation  of  an  absence  from  a  roll  call  was  not  satisfactory  would 
be  restricted  to  the  limits  of  the  post,  except  when  permitted  to 
absent  himself  upon  a  written  appHcation  for  such  absence  approved 
by  such  commander,  was  a  legal  order.     R.  55,  391,  Mar.,  1888. 

V  A  1  c.  An  officer  of  the  Army  was  ordered  by  his  post  commander 
to  visit  another  post  to  observe  the  operation  of  apparatus  for  the 
incineration  of  offal.  Held,  that  while  a  post  commander  can  not, 
unaided  by  superior  authority,  order  travel  involving  the  payment 
of  mileage,  he  may,  in  an  appropriate  case,  order  an  officer  of  his 
command  on  detached  service  for  such  a  purpose.  G.  19087,  Jan. 
22,  1906. 

V  A  1  d.  A  sentence  of  suspension  from  duty  and  pay  for  15  days 
does  not  irtiply  confinement  to  quarters,  or  involve  a  condition  of 
arrest.  It  is  customary  for  an  officer  undergoing  sentence  of  suspen- 
sion from  pay  and  duty  to  be  allowed  tlie  limits  of  his  command. 
R.  7,  242,  Feb.,  1864. 

»  See  28  Op.  Atty.  Gen.,  270. 


266  COMMAND   V  A  2  a. 

V  A  2  a.  A  military  commander,  authorized  to  grant  or  refuse 
passes  or  furloughs  to  his  command,  may  of  course  refuse  permission 
to  leave  the  post  to  a  soldier  whose  purpose  is  to  become  married. 
A  commander  may  also,  if  the  interests  of  discipline  require  it,  exclude 
the  wives  of  soldiers  from  a  post  under  his  command  at  which  their 
husbands  are  serving.  But  while  the  Army  Regulations  forbid  the 
enUsting  (in  time  of  peace,  without  special  authority)  of  married  men, 
there  is  no  statute  or  regulation  forbidding  the  contracting  of  marriage 
by  soldiers,  any  more  than  by  officers,  while  in  the  service.  So 
held  that,  under  existing  law,  a  military  commander  could  have  no 
authority  to  prohibit  soldiers,  while  under  his  command,  from 
marrjdng;  and  that  the  contracting  of  marriage  by  a  soldier  (although 
his  commander  had  forbidden  him,  or  refused  him  permission,  to 
marry)  could  not  properly  be  held  to  constitute  a  military  offense. 
Where  indeed  there  is  involved  in  the  conduct  of  the  soldier  at  the 
time  any  military  neglect  of  duty  or  disorder,  he  may,  for  this  indeed, 
be  brought  to  trial,  but  not  for  the  marrying  as  such.  And  remarked 
that  if  the  marrying  by  soldiers  after  enlistment  becomes  so  generally 
practiced  as  to  be  demoralizing  to  the  Army  or  otherwise  prejudicial 
to  discipline,  the  evil  can  effectually  be  repressed  only  through  new 
legislation  by  Congress.  R.  38,  47,  Apr.,  1876,  407,  Jan.,  1877; 
43,  109,  Dec,  1879. 

V  A  2  b.  Where  a  post  commander  issued  an  order  allowing  the 
soldiers  of  his  command  between  certain  hours,  when  ''off  duty," 
limits  extending  one  mile  beyond  the  military  reservation,  and 
forbidding  them  to  enter  or  patronize  within  said  limits  gambling 
houses,  saloons,  etc.,  lield  that  he  did  not  exceed  his  authority  in  the 
matter.     C.  1210,  Apr.,  1895. 

V  A  2  c.  A  soldier,  arrested  by  the  civil  authorities  and  released 
on  bail  to  await  trial,  may,  on  returning  to  his  station,  be  required 
to  perform  the  usual  military  duty  appropriate  to  his  rank  {R.  24, 
279,  Feb.,  1867),  and  while  on  such  duty,  his  pay  status  is  unaffected. 
G.  1717,  Sept.,  1895. 

V  A  2  d.  Although  the  post  commander  may  order  to  duty  a 
soldier  who  has  been  excused  from  duty  by  the  surgeon  on  account 
of  sickness  or  disability,  lield  that  if  he  does  so  he  assumes  the  respon- 
sibility for  any  material  injury  that  may  thus  result  to  the  individual 
or  the  service,  and  if  injury  does  in  fact  result,  is  amenable  to  trial 
for  the  mihtary  offense  involved.     R.  43,  250,  Mar.,  1880. 

V  A  2  e.  A  soldier  was  charged  with  the  larceny  of  a  certain  sum 
of  money  in  currency  from  the  post  trader's  store.  At  his  arrest  a 
sum  in  currency  of  about  the  same  amount,  but  not  capable  of  iden- 
tification as  the  same  money,  was  found  on  his  person,  and,  being 
claimed  by  the  trader,  was  turned  over  to  him  by  the  post  commander. 
The  soldier  was  then  tried  and  acquitted.  Held  that  the  post  com- 
mander should  refund  to  the  soldier  the  amount  taken  from  him  and 
improperly  turned  over  to  the  trader.     R.  50,  520,  July,  1886. 

V  A  2  f .  One  soldier  obtained  from  another  by  false  pretenses 
three  $20  gold  pieces.  Upon  being  arrested  for  the  offense  the  sum 
of  about  $49  in  bills  and  silver  was  found  upon  his  person.  It 
appeared  that  the  money  obtained  by  false  pretenses  had  been  con- 
verted into  money  of  other  denominations  and  that  the  sum  found 
upon  the  soldier  at  the  time  of  his  arrest  was  the  unexpended  balance. 
The  soldier  was  tried  and  convicted  of  the  offense.     Held  that  the 


COMMAND  V  A  3  a.  267 

sum  taken  from  liim  at  the  time  of  liis  arrest  should  be  returned  to 
the  other  soldier  from  whom  it  had  been  obtained  by  false  pretenses. 
(7.  ^33W,  May  29,  1908. 

V  A  3  a.  A  post  commander  can,  in  his  discretion,  exclude  all 
persons  other  than  those  belonging  to  his  post  from  post  and  res- 
ervation grounds,  but  should  he  admit  everybody  except  one  indi- 
vidual against  whom  no  charge  of  wrongdomg  existed,  such  action 
would  be  considered  an  abuse  of  discretion  on  the  part  of  the  post 
commander.  C.  2682,  Oct,  1896;  6704,  July  5, 1899,  and  Apr.  6, 1909; 
12941,  July  16, 1902;  16272,  May  6, 1904;  16983,  Oct.  8,  1904;  21258, 
Apr.  18,  1907;  28974,  Sept.  16,  1911. 

V  A  3  b.  A  post  commander  can  not  j^roperly  allow  his  post  to 
become  an  asylum  for  fugitives  from  civil  justice.  R.  36,  4^0,  May, 
1875. 

V  A  3  c.  A  civilian  may  legally  be  arrested  without  a  warrant  as 
well  by  a  military  person  as  by  any  citizen  where  he  commits  a  felony, 
or  crime  in  breach  of  the  public  peace,  in  such  person's  presence ;  or 
where,  a  felony  having  been  committed,  such  person  has  probable 
cause  for  believing  that  the  party  arrested  is  the  felon.^  In  a  case  of 
such  an  arrest  at  a  military  post,  the  arresting  officer  or  soldier  should 
use  no  unnecessary  violence,  should  disclose  his  official  character,  and 
inform  the  party  of  the  cause  of  liis  arrest,  and  should  deliver  him  as 
soon  as  reasonably  practicable  to  a  civil  official  authorized  to  hold 
and  bring  him  before  a  court  or  magistrate  for  disposition.  P.  39,  51 , 
Feb.,  1890;  41,  457,  July,  1890;  C.  10241,  Apr.  15,  1901;  16983, 
Apr.  10,  1908;  25609,  Nov.  8,  1909. 

V  A  3  0  (1).  The  State  of  Iowa  has  ceded  to  the  Unites  States  exclu- 
sive jurisdiction  over  the  portion  of  the  Rock  Island  Arsenal  Bridge 
and  approaches  situate  within  that  State.  In  a  case  of  a  crime  or 
offense  against  the  United  States  committed  by  a  civilian  on  such  por- 
tion, held  that  the  commanding  officer  at  the  arsenal  or  his  subordi- 
nates would  be  authorized  to  arrest  the  offender  without  warrant 
within  Umits  authorized  by  law  and  cause  him  to  be  brought 
before  a  United  States  commissioner  or  other  official  specified 
in  section  1014,  R.  S.  He  could  not  properly  hold  the  party  and 
notify  the  commissioner  to  send  for  him,  but  must  himself  have 
him  taken  before  the  commissioner.  Where  indeed  no  such  official 
is  accessible  at  the  time,  the  commanding  officer  may  hold  the  offender 
in  the  guardhouse,  but  only  for  such  interval  as  may  be  necessary. 
P.  39,  51,  Feb.,  1890. 

V  A  3  d  (1).  The  superintendent  of  the  Military  Academy  is  not  in 
general  authorized  to  arrest  and  confine  in  the  guardhouse  a  civihan 
for  a  mere  breach  of  the  police  regulations  of  the  post  or  academy. 
His  proper  remedy  is  to  have  the  offender  removed  as  soon  as  prac- 
ticable, and  without  unnecessary  force,  from  the  reservation.^  P.  41, 
457,  July,  1890;  C.  6704,  Feb.  25,  1909;  16983,  Oct.  8,  1904;  28974, 
Sept.  16, 1911. 

V  A  3  d  (2) .  Held  that  a  post  commander  can  legally  order  the 
removal  of  a  soldier's  wife  from  the  post  for  sufficient  cause.  C, 
25177,  July  14,  1909. 

V  A  3  e.  Although  section  3748,  R.  S.,  makes  the  possession  of 
articles  of  uniform  clothing  presumptive  evidence  of  a  sale;  lield  that 

1  U.  S.  V.  Bovd,  45  Fed.  Rep.,  851,  866,  Feb.,  1890. 
23  Op.  Atty.'  Gen.,  271;  9  id.,  106,  476. 


S68  COMMAND  V  A  3  f . 

where  there  is  reason  to  beheve  that  such  clothing  is  in  possession  of 
a  citizen,  a  search  warrant  should  be  obtained  from  the  proper  United 
States  court.  C.  5308,  Nov.  22,  1898;  1927,  Bee.  18,  1895;  16107, 
Apr.  4, 1904. 

V  A  3  f .  Held  with  respect  to  the  right  of  citizens  of  New  Jersey  to 
fish  on  and  along  the  shore  of  the  military  reservation  of  Fort  Hancock 
that  in  view  of  the  cession  of  exclusive  jurisdiction  over  the  reserva- 
tion to  the  United  States  for  military  purposes,  the  grant  should  be 
regarded  as  including  the  necessary  easement  in  the  shore  and  in  the 
waters  adjacent  thereto  required  for  the  ''free  use  and  enjoyment" 
of  the  premises  for  mihtary  purposes ;  that  the  obligation  to  observe 
such  easement  should  be  regarded  as  binding  on  all  citizens  in  so  far^ 
as  respects  public  rights  claimed  by  them  as  members  of  the  State, 
and  that  the  post  commander  should  therefore  continue  to  exercise 
such  control  oi  the  shore  between  high  and  low  water  mark  as  would 
prevent  any  occupation  w^hich  would  interfere  with  the  proper 
military  use  of  the  reservation.     C.  19657,  Oct.  21,  1910. 

V  A  3  g.  Held  that  grass  cut  for  hay  upon  a  military  reservation  was 
in  law,  at  least  if  not  at  once  removed,  personal  property,  so  that  a 

Eerson  wrongfully  cutting  such  grass  and  allowing  it  to  remain  till  it 
ecame  hay  or  for  any  material  period  before  asportation,  was  charge- 
able with  a  stealing  of  property  of  the  United  States  under  the  act  of 
March  3,  1875,  c.  144,  which  makes  such  steahng  a  felony  punishable 
by  fine  and  imprisonment.    P.  64,  270,  303,  Mar.  and  Apr.,  1894. 

V  A  4.  Where  a  general  court-martial  has  been  convened  at  a  mili- 
tary post  by  the  department  commander,  the  commander  of  the  post  is 
not  empowered,  in  the  absence  of  authorit}^  from  such  superior,  to  refer 
cases  to  the  court  for  trial.  Such  action  has  sometimes  been  taken 
and  acquiesced  in,  but  (unless  specially  authorized)  it  is  irregular  and 
a  transcending  of  his  province  by  the  post  commander.  R.  4i,  306 j 
July,  1878. 

V  A  5.  Held  that  a  regulation  ^  providing  for  the  detail  by  the 
commander  of  a  post  at  which  a  general  court-martial  is  ordered  to 
sit,  of  a  suitable  officer  of  his  command  to  act  as  counsel  for  prisoners 
to  be  arraigned,  if  requested  by  them,  is  not  to  be  construed  as  sanc- 
tioning the  detail  or  voluntary  appearance  of  a  post  commander  him- 
self in  such  capacity  at  his  own  post.    P.  65,  77,  May,  1894. 

V  A  6  a.  In  a  case  of  a  soldier  or  other  person  held  in  military  cus- 
tody, in  which  a  writ  of  habeas  corpus  is  issued  by  the  United  States 
judiciaiy — a  coordinate  branch  of  the  same  sovereignty  as  that  by 
which  tne  party  is  restrained — it  is  the  duty  of  the  officer  to  whom 
the  writ  is  addressed  to  make  thereto  a  full  return  of  the  facts  and  to 
bring  into  court  the  body  of  such  party,  submitting  to  the  court  the 
whole  question  of  authority  and  discharge,  and  abiding  by  its  decision 
and  order  in  the  case.  R.  19,  377,  and  21,  157,  Jan.,  1866;  C.  I4O42, 
Sept.  23, 1904. 

V  A  6  b.  Independently,  on  the  one  hand,  of  any  proclamation 
or  act  of  the  President,  suspending  the  privilege  of  the  writ,  or,  on 
the  other  hand,  of  any  proclamation  revoking  a  previous  suspension, 
and  on'  constitutional  grounds  alone,  held  that  no  court  or  judge  of 
any  State  could  in  any  instance  be  authorized  to  discharge,  on  habeas 
corpus,  a  person,  military  or  civil,  held  in  military  custody  by  the 

1  See  par.  977  A.  R.,  1910. 


COMMAND   V  A  6  b.  269 

authority  of  tlio  United  States.  R.  1992,  Dec,  1865;  21,  92,  and  133, 
Dec,  1865;  27,  50,  Aug.,  1868;  C.  1^95,  Apr.  14,  1903.  And  field, 
particularly,  in  regard  to  soldiers  arrested  or  confined  by  the  military 
authorities  under  a  charge  of  or  sentence  for  desertion, — that  their 
discharge,  upon  any  ground,  by  writ  of  habeas  corpus  was  wholly 
beyond  the  jurisdiction  of  any  State  tribunal.  R.  2,  34,  190,  4^4^ 
Fel.  to  June,  1863;  3,  104,  June,  1863;  5,  398,  Dec,  1863.  So  held, 
in  regard  to  persons  arrested  by  a  provost  marshal  as  deserters  for  not 
responding  to  a  draft  in  time  of  war.  R.  3,  457,  578,  Aug.  arid  Sept.j 
1863.  And  further,  held  that  no  State  court  could  have  jurisdiction 
on  a  proceeding  for  the  discharge  by  writ  of  habeas  corpus  of  an 
enlisted  soldier,  to  pass  upon  the  question  of  the  legality  of  the  sol- 
dier's enlistment,  or  to  discharge  him  from  his  contract  of  enlist- 
ment on  the  ground  of  its  invalidity  by  reason  of  minority,  non- 
consent  of  parent,  or  other  cause;  the  authority  to  discharge  from  the 
restraint  and  obligation  of  the  ordinary^  military  status  being  con- 
sidered to  be  governed  by  the  same  principle  as  that  to  discharge 
from  an  arrest  or  confinement  under  a  military  charge  or  sentence,  or 
from  the  custody  of  a  United  States  marshal  under  civil  process  of  the 
United  States.^  R.  21,  157,  Jan.,  1866;  29,  I40,  July,  1869;  33,  271, 
Aug.,  1872;  P.  82,  313,  May,  1889;  C.  394,  Sept.,  1894;  12069,  Feb. 
17,  1902. 

V  A  6  b  (1).  Where  a  writ  of  habeas  corpus,  issued  by  a  State  court 
or  judge  for  the  rehef  of  a  person  held  in  arrest,  confinement,  or  under 
enlistment,  by  the  miUtary  authorities,  is  served  upon  a  military 

^  Opposed  to  this  view  was  the  opinion  of  Atty.  Gen.  Stanbery  in  Gormley's  case 
(Oct.,  1867),  12  Op.  Atty.  Gen.  258.  But  in  December,  1871,  the  ruling  of  the  Judge 
Advocate  General  in  this  class  of  cases  was  sustained  by  the  United  States  Supreme 
Court  in  Tarble's  Case,  13  Wallace,  397,  in  which  the  judgment  of  a  State  court,  which 
had  ordered  the  discharge,  on  habeas  corpus,  of  an  enlisted  soldier  from  "the  custody 
of  a  recruiting  officer,"  i.  e.  from  the  obligation  of  his  contract  of  enlistment,  on  the 
ground  that  he  had  enlisted  when  under  eighteen  years  of  age  and  without  his  father's 
consent,  was  reversed  as  an  unconstitutional  assumption  of  authority.  In  applying 
to  the  case  the  principle  laid  down  in  Ableman  v.  Booth,  21  Howard,  506,  the  court, 
by  Field,  J.,  observes:  "State  judges  and  State  courts,  authorized  by  laws  of  their 
States  to  issue  writs  of  habeas  corpus,  have  undoubtedly  a  right  to  issue  the  writ  in  any 
case  where  a  party  is  alleged  to  be  illegally  confined  within  their  limits,  unless  it 
appears  upon  his  application  that  he  is  confined  under  the  authority,  or  claim  and  color 
of  the  authority,  of  the  United  States,  by  an  officer  of  that  Government.  If  such  fact 
appear  upon  the  application  the  writ  should  be  refused .  If  it  do  not  appear  the  judge 
or  court  issuing  the  writ  has  a  right  to  inquire  into  the  cause  of  imprisonment,  and 
ascertain  by  what  authority  the  person  is  held  within  the  limits  of  the  State;  and  it  is 
the  duty  of  the  marshal,  or  other  officer  having  custody  of  the  prisoner,  to  give,  by  a 
proper  retm-n,  information  in  this  respect.  His  return  should  be  sufficient,  in  its 
detail  of  facts,  to  show  distinctly  that  the  imprisonment  is  under  the  authority,  or 
claim  and  color  of  the  authority,  of  the  United  States,  and  to  exclude  the  suspicion  of 
imposition  or  oppression  on  his  part.  And  the  process  or  orders  under  which  the 
prisoner  is  held  should  be  produced  with  the  return  and  submitted  to  inspection,  in 
order  that  the  court  or  judge  issuing  the  writ  may  see  that  the  prisoner  is  held  by  the 
officer  in  ffood  faith,  under  the  authority,  or  claim  and  color  of  the  authority,  of 
the  United  States,  and  not  under  the  mere'pretence  of  having  such  authority.  *  *  * 
The  State  judge  or  State  court  should  proceed  no  further  when  it  appears,  from  the 
application  of  the  party,  or  the  return  made,  that  the  prisoner  is  held  by  an  officer  of 
the  United  States  under  what,  in  truth,  purports  to  be  the  authority  of  the  United 
States;  that  is,  an  authority,  the  validity  of  which  is  to  be  determined  by  the  Consti- 
tution and  laws  of  the  United  States.  If  a  party  thus  held  be  illegally  imprisoned,  it 
18  for  the  courts  or  judicial  officers  of  the  United  States,  and  those  courts  or  officers 
alone,  to  grant  him  release."  This  decision  put  an  end  to  a  controversy  of  many  years 
standing,  and  swept  away  a  mass  of  counterrulings  by  the  State  courts,  the  majority  of 
which  had  sustained  the  authority  of  the  State  judiciary  in  such  cases. 


270  COMMAND  V  A  6  b. 

officer,  he  is  not  required  to  comply  with  the  direction  of  the  writ  to 
produce  before  the  court  the  hody  of  the  person  so  held.  It  is  suffi- 
cient for  him  merely  to  make  return  showing  clearly  that  such  person 
is  held  by  the  authority  of  the  United  States  as  a  deserter,  or  under  a 
contract  of  enlistment,  or  otherwise,  as  the  case  may  be.  The  State 
court,  upon  being  thus  apprised,  will  properly  dismiss  the  writ.  R.  3, 
104,  J'^'T^e,  1863;  21,  157,  Jan.,  1866. 

V  A  6  b  (1)  (a).  Where,  prior  to  the  decision  of  the  United  States 
Supreme  Court  in  Tarble's  case,  a  State  court,  having  issued  a  writ  of 
habeas  corpus  in  a  case  of  a  military  prisoner,  attempted  to  enforce 
a  process  of  contempt  against  the  officer  in  charge,  who,  though  duly 
maldng  a  return  showing  that  the  party  was  detained  by  the  authority 
of  the  United  States,  refused  to  produce  his  body  in  court,  held  that 
such  attempt  should  be  resisted  by  the  officer,  who  should  be  sup- 
ported in  his  resistance  by  such  military  force  as  might  be  necessary. 
R.  3,  602,  Aug.,  1863;  19,  305,  Dec,  1865;  21,  92,  Dec,  1865.  So, 
where  a  State  court,  after  such  a  return,  still  assumed  to  proceed  in 
the  case  and  to  order  the  discharge  of  the  party,  here  a  soldier  in 
arrest  as  a  deserter,  held  that  the  execution  of  such  order  should  be 
resisted  and  prevented  by  military  force.  R.  3,  IO4,  June,  1863; 
21,  157,  Jan.,  1866. 

V  A  6  b  (1)  (b).  Where,  prior  to  the  decision  in  Tarble's  case,  an 
officer  undergoing,  in  a  State  penitentiary,  a  sentence  duly  imposed 
by  a  court-martial,  was  discharged  from  his  imprisonment  by  a 
State  court  and  was  at  large,  advised  that  he  be  forthwith  rearrested 
and  reconfined.  R.  30,  56,  Dec,  1869.  So,  in  a  case  of  a  soldier 
discharged  from  liis  enlistment,  on  the  ground  of  minority,  by  a  State 
court,  advised  that  he  be  arrested  by  the  military  authorities  and 
held  to  service.     R.  30,  190,  Mar.,  1870;  C.  I4O42,  Mar.  16,  1904. 

VAT.  Held  that  where  officers  and  enlisted  men  or  civffians 
resident  thereon  meet  with  death  on  reservations  under  circumstances 
which  can  present  no  question  of  violation  of  State  laws,  there  is  no 
necessity  or  propriety  of  any  inquest  at  all  beyond  an  investigation 
by  a  board  of  officers  or  court  of  inquiry;  but  where  an  individual  of 
one  of  these  classes  dies  at  a  place  outside  the  reservation  limits  or 
within  such  limits,  in  each  case,  as  a  result  of  criminal  acts  committed 
upon  him  outside  the  reservation,  the  right  of  the  coroner  to  conduct 
an  inquest  to  determine  the  nature  of  death  is  plain,  and,  as  a  matter 
of  comity,  the  post  commander  should  interpose  no  obstacle  to  holding 
the  inquest  on  the  reservation  or  to  the  removal  of  the  body  from  the 
reservation  for  the  purpose  of  holding  an  inquest  elsewhere.  C.  20050 y 
July  13,  1906. 

V  A  8.  Held  that  a  commanding  officer  may  in  emergencies  fur- 
nish guardhouse  accommodations  on  the  request  of  the  civil  authori- 
ties for  the  safe-keeping  of  civilian  prisoners,  provided  that  the  men 
charged  with  the  safe-keeping  of  the  prisoners  be  furnished  by  the 
civil  authorities,  as  there  is  no  authority  for  the  employment  of  troops 
for  that  purpose.     C.  25768,  Nov.  9,  1909. 

V  B  1 .  An  officer  returning  from  leave  on  an  Army  transport  may 
lawfully  be  placed  on  duty  by  the  commanding  officer  of  the  troops  on 
board,  but  while  so  engaged  becomes  entitled  to  the  allowances  accru- 
ing to  officers  on  duty  while  traveling  by  sea.  C.  24362,  Jan.  19, 1909 j 
and  July  13,  1909. 


COMMAND  V  B   2   a.  271 

V  B  2  a.  Where  an  offense  is  committed  on  an  Army  transport  by  a 
person  subject  to  the  Articles  of  War,  held  that  a  miUtaiy  prosecution 
should  be  initiated  at  once  by  the  preparation  of  charges  and  specifica- 
tions and  by  notification  to  such  person  that  military  jurisdiction  has 
attached.  •  C.  S63S,  Oct.  31,  1910. 

V  B  2  b.  Wliere  an  offense  is  committed  on  an  Army  transport,  but 
in  the  Territorial  waters  of  a  State  or  organized  Territory  of  the  United 
States,  the  injured  party  being  a  civilian,  not  a  member  of  the  ship's 
company,  the  offender  will  be  surrendered  upon  the  presentation  of  a 
warrant  by  the  proper  Federal,  State,  or  Territorial  authority,  and  the 
officer  serving  tne  same  will  receive  the  necessary  assistance  in  execu- 
tion as  provided  in  the  fifty-ninth  article  of  war.  C.  5635,  Oct.  31, 
1910. 

V  B  2  c.  When  an  offense  amounting  to  a  felony  or  a  serious  mis- 
demeanor is  committed  bv  one  menaoer  of  a  transport  company 
against  another  on  the  high  seas,  neither  party  being  subject  to  the 
Articles  of  War,  held,  that  the  offender  will  be  confined  and  turned 
over  to  the  proper  United  States  court  at  the  first  port  of  entry,  but 
if  there  be  no  court  of  the  United  States  at  such  port  of  entry  having 
jurisdiction  over  the  offense  committed  the  offender  will  be  held  in 
confinement  on  board  the  ship  until  a  port  is  reached  in  which  there 
is  a  court  of  the  United  States  having  jurisdiction  over  the  offense 
committed.  If,  however,  the  offense  be  committed  in  the  Territorial 
waters  of  a  State  or  Territory,  the  prisoner  will  be  turned  over  to  the 
proper  State  or  Territorial  court  if  there  be  one  having  jurisdication 
over  the  offense.  Should  the  offense  be  less  serious,  amounting  to 
an  infraction  of  the  ship's  disciphne  or  a  mere  misdemeanor,  reasonable 
disciphnary  punishment  may  be  imposed  by  the  ship's  master. 
C.  5635,  Oct.  31,  1910. 

V  B  3.  If  warrants  from  a  United  States  court  and  from  a  State  or 
Territorial  court  issue  in  the  same  case  the  commanding  officer  of  ^ 
transport  will  surrender  the  offender  to  the  officer  whose  service  is  first 
in  point  of  time.  Held,  however,  that  no  officer  of  the  Army  will  under- 
take to  pass  upon  the  sufficiency  of  a  warrant  issued  by  a  court  of  the 
United  States  or  by  aState  or  Territory,  as  such  question  is  for  judicial 
rather  than  executive  determination.     C.  5635,  Oct.  31,  1910. 

V  B  4.  A  transport  quartermaster,  not  serving  by  detail  as  an 
officer  of  the  Quartermaster's  Department,  succeeds  to  the  command 
of  troops  on  board  such  transport,  in  the  operation  of  the  one  hundred 
and  twenty-second  article  of  war,  if  he  is  the  senior  officer  of  the  line 
present;  otherwise,  however,  if  he  has  been  detailed  for  service  in  the 
Quartermaster's  Department,  as  in  the  operation  of  section  36  of  the 
act  of  February  2, 1901  (31  Stat.,  757),he  becomes,for  the  time  being, 
a  staff  officer,  and  as  such  is  not  entitled  to  exercise  command  m 
the  operation  of  the  one  hundred  and  twenty-second  article  of  war. 
C.  17508,  Nov.  21,  1906. 

V  B  5.  A  captain  in  the  line  of  the  Army,  serving  by  appointment 
as  assistant  chief  of  the  Philippines  Constabulary,  with  the  temporarv 
rank  of  colonel,  while  entitled  to  the  benefits  and  privileges  which 
attach  to  military  rank,  is  not  entitled  to  assume,  and  may  not  law- 
fully be  assigned  to,  the  command  of  the  troops  on  an  Army  trans- 
port upon  which  he  is  traveling  as  a  passenger;  such  a  captain  having 
the  rank  and  pay  of  colonel  in  the  operation  of  the  act  of  January  30, 
1903  (32  Stat.,  783),  and  not  being  a  colonel  in  the  line  of  the  Army, 


272  COMMAND  V  c  1  a. 

his  right  to  exercise  command  as  such  being  measured  by  the  require- 
ments of  the  act  of  January  30,  1903.     C.  17508,  Feb.  15,  1905. 

V  C  1  a.  The  authority  to  '^ appoint"  regimental  staff  officers,  con- 
ferred upon  regimental  commanders  by  the  Army  Regulations,  is  no 
part  of  the  constitutional  appointing  power,  but  is  merely  an  author- 
ity to  select  and  detail.  As  such  it  may  be  regulated  by  orders  from 
the  War  Department,  where  desirable  to  prevent  its  being  so  exer- 
cised as  to  prejudice  the  interests  of  the  service.  Thus,  it  is  com- 
petent for  the  Secretary  of  War  to  direct  by  general  order  that  such 
appointments  shall  not  be  dated  back  so  as  to  take  effect  as  of  dates 
prior  to  those  on  which  they  were  actually  made,  as  also  that  appointees 
shall  not  become  entitled  to  the  additional  pay  for  a  period  prior  to 
their  entering  upon  their  duties.^  R.  41,  609,  July,  1879;  42,  567, 
Apr.,  1880. 

V  C  1  b.  The  Army  Regulations  confer  upon  battalion  com- 
manders the  right  to  recommend  officers  for  appointment  to  vacancies 
in  the  battalion  staff.  The  regimental  commander  is  bound  to  con- 
sider these  recommendations  in  making  such  appointments.  Held, 
that  such  appointment  is  not  a  mere  ratification  of  the  act  of  a  sub- 
ordinate. Held,  also,  that  the  regimental  commander  is  not  deprived, 
however,  of  all  discretion  in  the  matter.  He  may,  for  certain  public 
reasons,  disapprove  a  recommendation  and  require  a  new  one  to  be 
submitted.  The  fact  that  the  officer  recommended  is  attached  to 
another  battalion  will  not  of  itself  exclude  him  from  the  field  of 
recommendation  or  appointment.  C.  13292,  Sept.  16,  1902;  9052, 
Nov.  23, 1906. 

V  C  1  c.  A  regimental  commander  is  not  obliged  by  armj  regu- 
lations, to  appoint  to  be  sergeants  or  corporals  of  companies,  the 
soldiers  recommended  to  him  for  such  appointments  by  the  company 
commanders.  He  is  to  be  regarded  as  vested  with  a  discretion  in 
the  matter,  and  though  in  the  great  majority  of  instances  he  will 
properly  appoint  as  recommended,  he  may,  and  should,  decline  to 
appoint  where  he  believes  the  nominee  to  be  an  unfit  person.  R.  27, 
159,  Sept.,  1868. 

V  C  2.  Held  that  a  regimental  commander  is  without  authority 
to  reduce  a  company  noncommissioned  officer  without  the  recom- 
mendation of  the  company  commander.     C.  10056,  Mar.  27,  1901. 

VI  A  1.  The  custom  of  the  service  for  nearly  a  century  has  recog- 
nized the  right  of  a  company  or  detachment  commander  to  delegate 
to  a  noncommissioned  officer  the  right  to  confine  an  enlisted  man  or 
to  place  him  in  arrest  in  quarters  where  it  is  impossible  to  obtain 
the  prior  order  of  the  company  commander  or  other  proper  superior, 
provided  the  case  be  immediately  reported  to  the  proper  commander, 
who,  if  the  enlisted  man  is  to  remain  in  confinement  or  under  arrest, 
must  confirm  the  act  of  the  noncommissioned  officer  and  adopt  it  as 
his  own.  Held  that  the  delegation  of  authority  in  this  instance  to 
noncommissioned  officers  is  not  based  upon  the  positive  grant  of 
authority  contained  in  the  twenty-fourth  article  oi  war.  C.  18878, 
Dec,  9,  1905. 

^  See  the  subsequent  G.  O.,  73,  Hdqrs.  of  Army,  1879,  in  accordance  with  this 
opinion. 


COMMAND   VI   A   2.  273 

VI  A  2.  Extract  from  an  indorsement  of  the  Judge  Advocate 
General,  in  submitting  to  the  Secretary  of  War  a  communication 
(concurred  in  by  the  Judge  Advocate  General)  from  Brig.  Gen. 
E.  O.  C.  Ord,  commanding  Department  of  Texas. 

''Though  I  am  aware  of  no  law  in  terms  prohibiting  a  company  com- 
mander from  delegating  to  a  noncommissioned  officer  so  important  a 
part  of  his  authority  and  duty  as  the  entertaining  in  the  first  instance 
of  the  complamts  and  requests  of  the  men  of  the  company,  I  can  but 
consider  such  a  delegation  to  be  at  variance  with  the  principle  and 
system  of  our  military  organization.  Further,  such  a  practice,  as  it 
appears  to  me,  must  tend  to  render  commissioned  officers  negligent 
and  irresponsible,  and  noncommissioned  officers  arbitrary  and  over- 
bearing. Indeed  I  can  conceive  of  nothing  that  would  sooner  spoil  a 
good  sergeant  than  to  place  him  in  a  position  to  determine  at  his  dis- 
cretion whether  the  complaints  of  his  inferiors  should  be  entertained 
by  his  superior,  and  to  color  them  at  will  when  transmitted.  Thus, 
tnough  the  practice  may,  in  some  instances,  have  been  found  conven- 
ient and  innocuous,  its  effect  in  general  must,  I  think,  be  prejudicial  to 
the  best  interests  of  the  service."  ^     R.  42,  273,  May,  1879. 

VI  B.  Held  that  a  company  commander  can  not  legally  force  a 
soldier  to  deposit  with  tlie  paymaster,  nor  can  he,  without  the 
soldier's  consent,  deposit  private  money  of  the  soldier  which  is  in  the 
company  commander's  possession.     R.  39,  J^71,  Mar.  ^,  1878. 

VI  C.  A  soldier  deposited  with  his  company  commander  a  sum  of 
money  for  safe-keeping.  Upon  being  relieved  from  duty  the  company 
commander,  without  the  authoritj^,  expressed  or  implied,  of  the 
soldier,  transferred  the  money  to  his  successor  in  command.  Held 
that  the  deposit  of  the  money  by  the  soldier  with  his  company  com- 
mander constituted  a  bailment  and  probably  something  more  than  a 
gratuitous  one.  But  considering  the  bailment  as  a  gratuitous  one 
only,  the  action  of  the  bailee  in  delivering  the  money  wimout  authority 
to  an  unauthorized  person,  even  though  the  delivery  was  not  with  a 
wrongful  intent,  constituted  a  conversion  of  the  funds,  and  the 
company  commander  to  whom  the  money  was  delivered  by  the 
soldier  would  continue  liable  for  the  money.  Held  also  that  as  the 
soldier  was  in  the  post  at  the  time  the  company  commander  was 
reheved  from  duty,  the  action  of  the  company  commander  in  turning 
the  money  over  to  his  successor  was  not  a  prudent  act  such  as  one 
in  the  exercise  of  reasonable  care  and  precaution  would  have  resorted 
to.     C.  14332,  Mar.  9,  1903. 

VII  A.  By  an  order  of  the  President,  of  1892,  a  special  command, 
independently  of  any  department  commander,  of  all  troops  on 
escort  duty  with  the  International  Boundary  Commission,  was 
devolved  upon  a  lieutenant  colonel  of  engineers.  Held  that  his  order, 
requiring  travel  on  duty  by  an  officer  of  the  command,  entitled  such 
officer  to  the  usual  travel  allowances,  equally  as  would  a  similar  order 
issued  by  a  department  commander.     P.  67,  357,  Jan.,  1893. 

'  Compare  remarks  of  reviewing  officer  in  G.  C.  M.  O.,  26,  Dept.  of  the  Columbia,  1879; 
do.  2,  id.,  1880.  >     >      f 

31106°— 12 18 


274  COMMAND COMMANDING   GENERAL. 

CROSS    REFERENCES. 

Authority  to  order  a  court See  Articles  of  War  LXXII  A. 

Chief  and  assistant  chief  of  Philippine  Con-  See  Territories  IV  B  2  a. 
stabulary. 

Commander  in  Chief See  Army  II  I  a. 

General  court-martial See  Discipline  IX  N  2. 

General  Staff See  Army  I  G  3  a  (1)  (a). 

Joint  encampment See  Articles  of  War  CXXII  B. 

Neglect  to  assume See  Articles  of  War  LXII  D. 

Officer  under  sentence See  Pardon  XV  D  1. 

Power  to  convene  courts-martial See  Discipline  XV  I  1. 

Right  to  require  officer  to  submit  list  of  debts.. See  Private  Debts  VIII. 

Suspension  from See  Discipline  XII  B  3  f  (3)  (a). 

Transport See  Articles  of  War  CXXII  A. 

COMMANDER  IN  CHIEF. 

See  Army  I  A  to  B. 

Appointing  power See  Office  II  to  IV;  V  A  to  B. 

Approval  of  sentence See  Discipline  XIV  E  3. 

Assignment  by  to  command See  Command  I  a  1;  III  A  to  D. 

Can  not  create  office See  Office  II  to  III. 

Command  by See  Army  II I  2. 

Convening  authority See  Discipline  III  B  to  C. 

Court  of  inquiry,  ordered See  Articles  of  War  CXV  A;  B;  CXIX 

A;  B;  CXXI  A. 

Cuba,  intervention  in See  War  I  C  8  c  (1)  to  (2). 

Delegation  of  right  to  command See  Command  I  A. 

Deserters  dropped See  Desertion  XX  D;  E;  F. 

Disbandment  of  Volunteer  Army See  Enlistment  I  B  2  e. 

Discharge  by See  Discharge  XX  A  to  F. 

Evidence  of  how  taken See  Discipline  X  D  1. 

Examining  board,  action  on See  Retirement  I  B  6  e  to  g. 

Execution  of  the  law See  Army  II  B. 

Habeas  corpus,  suspension  of See  War  I  C  12 

Martial  law See  War  I  E  1  to  2. 

Medals  of  honor  awarded  by See  Insignia  of  Merit  I  A  to  B. 

Military  contribution  ordered See  War  I  C  6  f  (1). 

Military  reservations See  Public  Domain  III  F  3. 

Militia  called  forth See  Militia  I  to  II. 

Orders  by See  Communications  I  A  1. 

Pardon  by See  Articles  of  War,  CXII  A  to  E. 

Pardon  I  A;  A  1;    B  1;  III  to  IV. 

Philippines,  order  in See  Army  II  G  2  a;  a  (1). 

Receipts  for  property,  directions  as  to See  Claims  VII  B  5. 

Reduction  of  Army  at  end  of  war See  Discharge  IX  A. 

Regulations  by See  Laws  II  A  1;  1  b;  1  f ;  g;  g  (1). 

Retiring  board,  action  on See  Retirement  I  B  3  to  4. 

Reviewing  authority See  Articles  of  War  CVII  A;  CXI  A. 

Discipline  XIV  H  to  I. 

Revocation  of  proclamation See  War  I  C  12  a. 

Riots See  Army  II  I  to  K. 

Summary  dismissal  of  officer See  Office  I V  E  2  to  3. 

Suspension  of  proclamation See  War  I  E  1  e. 

Uniform  of  Army See  Insignia  of  merit  III  B  1. 

Use  of  troops  in  Indian  country See  Army  II  C. 

Usury,  control  over See  Articles  of  War  LXII  C  15. 

Volunteer  Army,  raising  of See  Volunteer  Army  I  A. 

COMMANDING  GENERAL. 

Martial  law See  War  I  E  1  c  to  d. 

Neutrality See  Army  II  K  to  III. 

Riot See  Army  II  I  to  K. 

War See  War  I  C  8  a  (2)  to  (3). 

War  correspondents See  War  I  G  1. 


COMMANDING   OFFICER — COMMUNICATIONS.  275 

COMMANDING  OFFICER. 

See  Command  V  to  VI. 

See  Articles  of  War  LXV  B. 

Arrest  by ^ See  Discipline  I  D  1. 

Assault  on See  Articles  of  War  XCVII  A. 

Confinement  of  retired  soldier  by See  Retirement  II  B  3  a ;  b. 

Counsel  for  accused See  Discipline  V  G  3. 

Court  o/inquiry See  Articles  of  War  CXV  A;  B;  CXIX 

A;  B;CXXI  A. 

Discharge  by See  Discharge  XIV  A  3. 

Disrespect  to See  Discipline  II  D  17  a. 

Duty  in  case  of  homicide See  Articles  of  War  CII  H  1. 

Forwards  charges See  Discipline  II  G  1. 

Liquor:  decides  whether  intoxicating See  Intoxicants  II  B. 

Liquor:  prevents  introduction  into  Indian 

country See  Intoxicants  III  C  to  D. 

Eiot See  Army  II  D, 

Squatters  on  reservation See  Public  property  II  B  3  a;  III  H  to  I. 

Subpoenas See  Discipline  X  F  1 ;  2. 

Taxes:  duty  in  connection  tvith See  Army  I  B  11. 

Uniform:  duty  to  protect  dignity  of See  Uniform  I  B  1  a. 

Waste  products,   abandoned  property,   etc.: 

disposition  of See  Public  property  I  to  II. 

Witnesses See  Discipline  X  D. 

Writ  of  replevin See  Army  II  K  1  e  (2). 

COMMISSARY  SERGEANT. 
Appointment  of. See  Army  I  E  2  a. 

COMMISSION. 

Of  officer See  Discharge  II  A  1. 

To  medical  reserve  officer See  Army  I  G  3  d  (3)  (6);  (c)  [4]. 

COMMUNICATIONS. 
I.  ORDERS. 

A.  War  Department. 

1.  Are  orders  of  the  President Page  276 

B.  Become  Operative  When? 

1.  Rule  of  notice. 

a.  General  and  special  orders. 

2.  At  future  designated  time_ Page  211 

C.  Assigning  Officer  to  Duty  in  Lieu  of  Another  Relieves  that  Other. 

D.  Nunc  Pro  Tunc  Orders  May  Not  be  Issued. 
n.  LETTERS,  ETC. 

A.  Penalty  Envelopes. 

1.  "Penalty  for  private  use,  $300,  "  sufficient Page  278 

2.  May  be  used  in  discharge  of  official  duty. 

a.  May  be  inclosed  for  use  with  return  official  letter. 

b.  Can  not  be  inclosed  for  return  of  signed  vouchers. 

3.  May  be  used  by  recruiting  officer. 

4.  Used  by  State  adjutants  general. 
m.  TELEGRAMS. 

A.  Recommending  Extension  of  Furlough  May  be  Public  Business. 
IV.  CHANNELS. 

A.  Military.     (See  Army  Regulations.) 

B.  Nonmilitary. 

1.  Used  to  reach  War  Department Page  279 

2.  Used  in  correspondence  with  congressional  committee. 


276  COMMUNICATIONS   I   A  1. 

I  A  1.  General  or  special  orders  relating  to  the  Army,  issued  from 
the  War  Department  by  the  Secretary  of  War  or  by  his  direction, 
are  to  be  presumed  to  be  made  by  the  authority  of  the  President,  and 
to  be  viewed  as  his  orders  equally  as  if  he  had  subscribed  the  same. 
R.  8,  297,  Apr.,  I864. 

I B  1.  An  order  becomes  operative,  and  a  military  person  chargeable 
with  notice  of  it,  when  it  is  shown  that  an  order  has  been  forwarded  in 
the  regular  way  to  an  officer's  regiment,  in  which  case  it  will  be  pre- 
sumed, unless  there  is  something  to  indicate  the  contrary,  that  it 
reached  its  destination,  and  also  that  it  was  delivered  to  the  officer 
unless  he  was  absent  from  his  regiment;  and  if  the  officer  is  absent 
without  authority,  the  receipt  of  the  order  at  his  proper  station  is 
held  to  be  a  constructive  delivery  to  him.  R.  12,  230,  Jan.,  1865;  13, 
284  and  335,  Jan.,  1865;  19,  696,  Oct.,  1866;  22,  506,  Dec,  1866;  28, 
423,  and  426,  Mar.,  1869;  30,  48I,  July,  1870;  31,  327,  Apr.,  1871;  34, 
364,  July,  1873;  P.  49,  91,  176,  Sept.,  1891;  65,  289,  June,  I894.  C. 
1289,  Apr.  24,  1895. 

I  B  1  a.  An  order  affecting  a  mihtary  person  becomes  operative  as 
to  such  person  when  he  has  received  military  notice  of  its  existence 
and  contents ;  that  is,  if  the  order  be  general  in  character,  it  becomes 
operative  when  it  has  been  formally  promulgated  to  the  command  to 
which  it  pertains;  if  it  be  special  or  individual  in  its  operation,  it 
becomes  effective  when  it  has  been  served  upon  or  received  by  such 
person  through  the  usual  military  channels.^  It  may  be  regarded  as 
an  established  practice  in  our  service  that  the  date  of  receipt  of  a 
general  order  by  a  command  is  the  date  on  which  it  takes  effect  as  to 
that  command.  It  is  not  necessary  to  go  further  and  attempt  to 
trace  the  general  order  to  each  individual.  Such  a  general  order  is 
not  unlike  a  statute  of  general  character  in  that  it  puts  forth  a  binding 
general  rule  of  action,  intended  for  the  guidance  of  a  whole  community, 
and  when  no  other  date  is  indicated,  the  date  of  the  order  is  the  date 
when  it  takes  effect  ;2  but  the  custom  of  the  service  (established  prac- 
tice) which  it  must  be  remembered  has  the  force  of  law^  modifies  this  to 
the  extent  stated  above,  but  to  that  extent  only.  This  custom  of  the 
service  is  a  modification  of  the  principle  that  no  military  person  can 
plead  ignorance  of  mifitary  law  (including  regulations),  and  were  it 
not  for  this  modification  the  principle  in  all  its  severity  would  be  legally 
applicable.  When  the  date  of  the  receipt  of  the  general  order  by  the 
command  can  not  be  ascertained,  the  only  fixed  date  that  there  is, 
namely,  the  date  of  the  order,  should  be  taken  as  the  date  when  it  took 
effect,  particularly  in  cases  where  the  general  orders  affect  the  military 
history  of  soldiers  in  the  past  and  a  fact  of  that  past  history  is  to  be 
determined;  but  a  soldier  can  not  be  held  criminally  responsible  under 
a  general  order  after  its  date,  but  before  knowledge  of  it  could  have 

1  Davis's  Military  Law,  382. 

2  This  refers  to  the  rule  that,  except  when  otherwise  provided  by  Constitution  or 
statute,  a  statute  takes  effect  on  its  passage,  as  in  the  case  of  an  act  of  Congress. 

3  84th  A.  W. ;  Winthrop  Military  L.  &  P.  42,  438;  Davis's  Military  Law,  10;  De  Hart, 
164;Ben6t,  119. 

In  the  Regulations  for  the  British  Army  it  is  laid  down  that  "ignorance  of  published 
orders  will  never  be  admitted  as  an  excuse  for  their  nonobservance  " ;  but  in  that  service 
the  regulations  in  reference  to  the  promulgation  of  orders  are  more  specific  than  ours. 
They  require,  among  other  things,  that  all  orders  specially  relating  to  the  soldiers  are  to 
be  read  and  explained  to  them  immediately  after  such  orders  are  received  and  those  of 
an  important  nature  are  to  be  read  to  them  on  three  successive  parades. 


COMMUNICATIONS   I   B   2.  277 

reached  the  command  to  which  he  belonged.  C.  8962,  Sept.,  1900: 
13962,  Jan.  29,  1903. 

I  B  2.  It  is  the  estabhshed  practice  of  the  department  to  issue 
orders  detaiUng  officers  for  duty,  whicli  are  to  become  operative  at  a 
future  date;  lield,  that  such  an  order  does  not  operate  to  detach  the 
officer  from  his  organization  or  post  of  duty  until  it  becomes  time  for 
him  to  start  for  his  new  post  in  order  to  comply  with  the  order. 
a  22176,  Oct.  4,  1907. 

I  C.  An  order  from  the  War  Department  assigning  a  certain  officer 
to  a  duty  (acting  judge  advocate)  in  lieu  of  another  named,  relieves 
the  latter  and  his  detail  ends  with  the  date  of  such  assignment.  That 
the  commander  of  the  department  in  which  he  was  serving  omits  at 
the  time  to  issue  the  usual  order  relieving  him  does  not  affect  his 
status,  or  entitle  him  to  be  paid,  as  of  the  special  rank  of  the  detail 
up  to  a  subsequent  date  when  the  department  commander  did  actually 
issue  such  an  order.  He  was  relieved  in  fact  by  the  original  order  of 
assignment  of  a  successor  when  the  latter  entered  upon  the  duty  under 
the  order.     P.  52,  499,  Mar.,  1892. 

I  D.  An  order  can  not  create  a  fact  to-day  and  carry  it  back  to  some 
date,  and  there  set  it  up  as  a  fact  occurring  on  that  date,  whereas  in 
reality  no  such  fact  then  occurred.  But  care  should  be  taken  to  dis- 
tinguish between  such  an  impossibility  and  a  legally  retroactive  execu- 
tive order  or  regulation,  as  when  a  thing  is  done  without  the  approval 
of  the  Secretary  of  War,  his  approval  being  required,  and  he  subse- 
quently ratifies  the  thing  done.^  Between  such  action  as  this  and  the 
attempt  to  manufacture  a  fact  as  happening  in  the  past  it  is  important 
but  not  difficult  to  distinguish.  Thus  all  orders  in  the  cases  of  officers 
and  enlisted  men,  which  purport  to  make  appointments,  acceptances 

^  This  is  certainly  correct,  but  it  would  be  well  to  notice  that  the  instance  of  a  legal 
ratification  which  is  given  does  not  cover  the  whole  subject.  There  are  acts  which 
neither  statute  nor  regulation  authorizes  an  officer  to  do  subject  to  the  approval  of  a 
higher  authority,  but  which,  when  done  by  him,  may  be  validated  by  ratification; 
and  it  would  probably  be  useful  to  determine  what  kind  of  acts  these  are. 

The  principal  rule  to  be  laid  down  in  this  regard  would  seem  to  be  that  the  act  must 
be  one  power  to  do  which  the  higher  authority  might  legally  delegate  to  the  inferior 
at  the  time  of  the  ratification  and  might  have  delegated  at  the  time  the  act  was  done. 
If  the  superior  authority  could  not  thus  delegate  the  power  he  could  not  ratify  the  act. 
He  could  not  ratify  an  act  which  he  had  no  authority  to  do  himself;  thus,  he  could  not 
ratify  an  act  violating  a  law.  And  another  restriction  arises  out  of  the  character  of  the 
act,  whether  ministerial  or  judicial  or  discretionary.  Judicial  power  and  also  such 
power  as  is  by  law  intrusted  to  the  discretion  of  the  superior  authority  can  not  be  dele- 
gated by  him  to  another,  nor  can  he  ratify  such  an  act  when  done  by  the  other.  Such 
at  least  would  seem  to  be  the  strict  rule  in  the  relation  of  the  superior  officer  and  subor- 
dinate.    As  statedby  Mechem  (Mechem  on  Public  Officers,  sec.  567): 

"In  those  cases  in  which  the  proper  execution  of  the  office  requires,  on  the  part  of 
the  officer,  the  exercise  of  judgment  or  discretion,  the  presumption  is  that  he  was 
chosen  because  he  was  deemed  fit  and  competent  to  exercise  that  judgment  and  dis- 
cretion, and,  unless  power  to  substitute  another  in  his  place  has  been  given  to  him, 
he  can  not  delegate  his  duties  to  another. ' '    And  the  same  author  says  (sec.  529): 

"  It  is,  therefore,  the  general  rule  that  one  may  ratify  the  previous  unauthorized 
doings  by  another  in  his  behalf,  of  any  act  and  of  that  only  which  he  might  then  and 
could  still  lawfully  do  himself,  and  which  he  might  then  and  could  still  lawfully 
delegate  to  such  other  to  be  done. ' ' 

Whether  the  foregoing  can,  in  all  strictness,  be  applied  to  military  relations,  I  am 
not  entirely  prepared  to  say.  Theoretically  it  is,  I  think,  correct,  but  I  believe  that 
It  has  not  been  very  closely  adhered  to  in  practice.  The  performance  of  acts  of  a 
purely  ministerial  or  executive  nature  can  always  be  delegated  or  ratified,  unless 
^^pressly  prohibited  or  the  power  is  expressly  exclusively  vested  in  the  superior. 
(Note  by  Judge  Advocate  General  to  opinion  of  Sept.  14,  1900,  C.  8962 ,  supra.) 


278  COMMUNICATIONS  II   A  1. 

of  resignations,  discharges  from  the  service,  or  muster-out  of  service 
date  from,  or  take  effect  from,  dates  prior  to  the  issuance  of  the  orders 
therefor,  are  instances  of  the  attempts  referred  to  and  are  illegal. 
C.  8962,  Sept,  1900.  ^  i 

II  A  1.  Held  that  the  words  ''penalty  for  private  use — $300,"' 
printed  upon  an  official  envelope,  constituted  a  sufficient  ''statement" 
under  the  act  of  July  5,  1884  (23  Stat.,  158),  which  provides  simply 
that  the  envelopes  shall  "bear  a  statement  of  the  penalty  for  their 
misuse."     P.  60,  425,  July,  1893;  C.  11387,  Nov.  12,  1907. 

II A  2 .  If  the  matter  of  carrying  on  correspondence  becomes  the 
official  duty  of  a  public  officer  and  he  conducts  it  in  the  discharge  of 
that  official  duty,  he  is  entitled  to  use  the  penalty  envelope ;  otherwise 
he  would  not  be.     C.  276,  Sept.,  1894. 

II  A  2  a.  The  law  regarding  the  use  of  penalty  envelopes  (act  of 
Mar.  3,  1877,  c.  103,  s.  5  and  6,  and  the  act  of  July  5,  1884,  c.  234, 
s.  3)  restricts  the  use  of  such  envelopes,  for  the  free  transmission  of 
inclosures,  to  "officers  of  the  United  States  Government" ;  except  that 
in  the  latter  act  it  is  provided  "that  any  department  or  ofiicer  author- 
ized to  use  penalty  envelopes  may  inclose  them,  with  return  address, 
to  any  person  or  persons  from  or  through  whom  official  information 
is  desired,  the  same  to  cover  such  official  information  and  indorse- 
ments relating  thereto."  C.  6236,  Apr,,  1899.  Held  therefore  that 
the  authorities  of  a  college,  etc.,  where  an  officer  of  the  Army  is  on 
duty  under  section  1225,  R.  S.,  are  not  authorized  to  initiate  the  use 
of  the  penalty  envelope  for  the  transmission  of  official  papers  per- 
taining to  the  military  department  thereof,  but  may  legally  transmit 
the  same  to  the  proper  department  of  the  Government  in  penalty 
envelopes  previously  furnished  to  them  by  the  department  for  the 
purpose.     C.  729,  Dec.,  1894. 

II  A  2  b.  Held  that  penalty  envelopes  can  not  be  inclosed  by  an 
officer  in  a  letter  to  contractor  for  use  in  returning  signed  vouchers. 
C.  20371 ,  Jan.  23, 1907,  and  June  22, 1907. 

II  A  3.  Held  that  recruiting  officers  may  legally  use  the  penalty 
envelope  for  the  transmission  to  private  persons  of  circulars,  letters, 
etc.,  giving  information  with  regard  to  enlistment  in  the  military 
service,  and  may  also  when  verifying,  by  letter,  an  applicant's  char- 
acter inclose  a  penalty  envelope  to  cover  the  information  sought. 
C.  1593,  July,  1895. 

II  A  4.  When  matters  pertaining  to  the  muster  in  of  United 
States  volunteers  "relate  exclusively  to  the  business  of  the  Govern- 
ment of  the  United  States,"  adjutants  general  of  the  respective 
States  assisting  in  such  muster  in  may  legally  use  the  penalty 
envelope  in  their  correspondence  to  the  extent  stated,  but  any 
person  using  it  must  decide  for  himself  whether  in  the  particular 
case  it  may  legally  be  used,  having  in  mind  his  criminal  liability  for  a 
misuse  thereof.  C.  4610,  Jan.,  1898;  6173,  Apr.,  1899;  7351, 
Nov.,  1899. 

III  A.  A  post  commander  requested  authority  by  telegraph  to 
extend  a  furlough  granted  by  him  to  an  enlisted  man;  held,  that 
such  a  dispatch  did  not  come  within  the  prohibition  of  (paragraph 
1203)  Army  Reg;ulations  (of  1910)  as  it  related  to  the  public  business 
and  did  not  originate  with  the  beneficiary  of  the  furlough.  C.  23362, 
June  4, 1908. 


COMMUNICATIONS  IV  B  1 — COMPANY.  279 

I V  B  1 .  An  officer  attempted  to  influence  the  action  of  the  War 
Department  through  channels  otherwise  than  mihtary.  Held  that 
his  action  was  a  violation  of  Army  Regulations  and  of  the  Executive 
order  of  July  7,  1905.  (G.  O.  112,  W.  D.,  1905),  and  that  a  proper 
notation  should  be  entered  on  his  efficiency  record.  C.  2Jt509,  Feb, 
17, 1909. 

IV  B  2.  Held  that  in  reply  to  a  request  from  a  committee  of 
Congress  an  officer  stationed  outside  of  Washington  can  furnish 
information  direct  to  such  committee,  but  that  an  officer  stationed  in 
Washington  must  forward  such  reply  through  military  channels. 
C.  28796,  Aug.  3,  1911. 

CROSS    REFERENCE. 

Confidential See  Army  I  G  3  a  (3);  (4)  (a)  [2]. 

Convening  order See  Discipline  III  G  1;  XIII  B;  XV  E  8. 

Evidence  of. See  Discipline  XI  A  17  a  to  b. 

Illegal  convening  order See  Discipline  XV  H  1  to  3. 

Militia See  Militla.  XIV  to  XV. 

Order  for  revision See  Discipline  IX  N  2. 

Privileged^ See  Discipline  XI  A  5. 

Promulgating  order See  Discipline  XIV  F  1  to  3. 

COMMUTATION  OF  QUARTERS. 

See  Pay  and  allowances  II  A  2  b  to  c. 

Absent See  Absence  I  B  1  n. 

Heat  and  light  allowance See  Pay  and  allowances  II A 1  c  (3) ;  (6)  ; 

d(2). 

Promotion See  Pay  and  allowances  II  A  1  c  (5). 

State  disbursing  officer See  Militia  VI  B  1  e  (1). 

Traveling  on  duty See  Pay  and  allowances  II  A  2  b  (3). 

COMMUTATION  OF  RATIONS. 

See  Absence  I  G  4  e  (1). 

Fixing  of  rates See  Pay  and  allowances  II  A  3  b  to  c. 

Forfeiture  of,  by  deserter See  Desertion  V  D  3  to  E  6. 

With  heat  and  light See  Pay  and  allowances  II  A  1  b  (2). 

COMMUTATION  OF  SENTENCE. 

Dismissal:  Effect  of  on  pay See  Pay  and  allowances  III  F  1. 

Discipline  VIII  D  1  c  (1). 

Notice  of See  Discharge  XIII  D  5. 

Operates  when See  Pay  and  allowances  III  C  1  b. 

Power  of. See  Articles  op  War  CXII  A  to  E. 

Unauthorized See  Discipline  XIV  E  9  a  (17) ;  b  (1). 

COMPANY. 

Unincorporated,  bonds  of. See  Bonds  I  H  to  I. 


280  COMPANY   COMMANDER — CONDEMNATION. 

COMPANY  COMMANDER. 

Appointments  recommended See  Command  V  C  1  c. 

Appointment  of  noncommissioned  officers.  See  Rank  I  D  to  E. 

Apprehended  deserter,  how  taken  up See  Desertion  VII  A  1;  XII  B. 

Barber  shops,  billiard  and  pool  tables  au-  See  Government  agencies  VII. 
thorized. 

Character  on  soldier's  discharge See  Discharge  XI  A  to  C  1. 

Clothing  to  apprehended  deserter See  Pay  and  allowances  II  A  3  a  (4)  (c). 

Death  of  soldier See  Articles  of  War  CXXVI  A. 

Deserter  not  discharged See  Desertion  XV  F. 

Desertion  by  soldier See  Desertion  V  F  15. 

Delegation  of  authority See  Command  VI  A  1  a;  lb. 

Discipline  I  E  1. 

Exceeds  authority See  Command  VI  B. 

First  sergeant,  detail  of. See  Army  I  E  1  b. 

Objection  to  reenlistment See  Discharge  XI  C  1. 

Punishments  by See  Discipline  XVII  A  1. 

Recommendation  for  certificate  of  merit See  Insignia  op  merit  II  B. 

Reduction  of  noncommissioned  officers See  Command  V  C  2. 

Unauthorized  punishment  by See  Discipline  XVII  B  1  e. 

Waste  products,  abandoned  property ,  etc See  Public  Money  I  to  II. 

COMPANY  FUND. 

See  Government  agencies. 

Coohs  paid  from See  Pay  and  allowances  I  C  6b  (4). 

Forced  contributions  to See  Discipline  XVII  B  1  e. 

Indebtedness  to See  Desertion  XIX  F. 

Salvage  paid  into See  Claims  VI  D. 

Stoppage  of  officer's  pay,  to  reimburse See  Pay  and  allowances  III  B  7  to  8. 

COMPANY  TAILOR. 
Debts  to See  Articles  op  War  XXI  B  1. 

COMPETITION. 
When  useless See  Contracts  VII  G  to  H. 

COMPTROLLER   OF  THE   TREASURY. 
Views  of. See  Civil  authorities  II  a. 

CONCERTS. 
By  Army  band See  Army  bands  I  C  1.  . 

CONCURRENT  JURISDICTION. 

See  Articles  op  War,  LVIII  A. 

See  Public  property  VCltoD;  El  a. 

CONDEMNATION. 

Land See  Public  property  II  A  4  to  5;  IV  A 1. 

a(l). 

Military  stores See  Public  property  IX  A  2  a  to  b. 

Money,  deposit  of. See  Public  property  II  A  6  d. 


CONDEMNED  PROPERTY — CONSTRUCTIVE   MUSTER   IN.  281 

CONDEMNED   PROPERTY. 

Disposition  of. See  Militia  IX  G. 

CONFESSION. 

Evidence  of. See  DisaPLiNE  XI  A  7  a;  b. 

CONFINEMENT. 

See  Discipline  XVII  A  4  a  to  i. 

At  date  of  discharge See  Enustment  I  D  3  c  (17). 

Considered  in  imposing  sentence See  Discipune  XII  B  3  h. 

Discharge  while  in See  Discharge  III  D. 

Escape  from See  Desertion  I  C  1. 

For  contempt  of  court See  Articles  op  War,  LXXXVI  B  1  a. 

For  serious  offenses  only See  Articles  op  War,  LXVI  A. 

Honest  and  faithful  service  while  in See  Enlistment  I  D  3  c  (1). 

Notice  of  discharge See  Discharge  XIII  D  6  a;  b. 

Retired  soldier See  Retirement  II  B  3  b. 

Sentence  to See  Discipline  XII  B  g  (1)  to  (4). 

Several  penalties  of See    Articles  op  War,  LXXXIII  C;  C  2. 

Tivo  sentences. See  Discharge  IV  E. 

CONGRESS. 

Communication  with,  by  officer See  Communications  IV  B  2. 

Creates  office See  Office  II  to  III. 

Nunc  pro  tunc  appointments  authorized See  Pay  and  Allowances  I  B  1  a. 

Pardoning  power  no  control  over See  Pardon  I  B;  B  1. 

Public  property,  disposal  of See  Public  Property  I;  I  A;  A  1. 

War  I  C  6  c  (3)  (6). 
Right  of  way See  Public  Property  VI  B  to  C. 

CONGRESSIONAL  MEDAL. 

See  Insignia  of  Merit  I  E. 

CONGRESSMEN. 

Appointment  of  cadets See  Army  I  D  1  to  2. 

Purchase  of  supplies  from See  Contracts  XV  to  XVI. 

Remarks  by,  during  debates See  Laws  I  B  6. 

CONSCRIPTION. 

Of  militia See  Militia  I  C. 

CONSTITUTIONAL  APPOINTING  POWER. 

See  Office  II  to  VI. 
Not  exercised  by  regimental  commander See  Command  V  C  1  a. 

CONSTRUCTIVE  DISCHARGE. 

See  Discharge  VIII  A. 
CONSTRUCTIVE  ENLISTMENT. 

See  Enlistment  I  A  3  to  4. 

CONSTRUCTIVE  MUSTER  IN. 

See  Volunteer  Army  II  B  1  d  to  e;  2  a  (1). 


282  CONSTRUCTIVE    NOTICE CONTINUING   PUNISHMENT. 

CONSTRUCTIVE   NOTICE. 

Of  acceptance  of  resignation See  Office  IV  D  5  c  (1). 

Of  discharge , See  Discharge  XIII  D  1. 

CONSTRUCTIVE   PARDON. 

See  Pardon  XV  to  XVI. 
See  Absence  II  B  7. 
By  restoration  to  duty  without  trial See  Desertion  IX  N;  XV  D. 

CONSULAR   SERVICE. 

Employment  of  United  States  civilian  em- 
ployee in See  Civilian  employees  VI  A. 

Exterritoriality  as  to  transports See  Army  I  G  3  b  (2)  (a)  [3]  [g]. 

Officer  of,  designated  to  cause  deposition  to  be 
taken See  Articles  of  War  XCI  D. 

CONTAGION. 

Destruction  of  property  to  prevent See  Pay  and  allowances  II  A  3  a  (d) 

to  (e). 

CONTEMPT   OF   COURT. 

See  Articles  of  War  LXXXVI  A  to  B 
lb. 

See  Discipline  X  G  1. 
Of  civil  court See  Army  I  E  5. 

See  Private  debts  IX. 
Punishment  for See  Discipline  VII  A;  C  2. 

CONTINGENCIES  OF  THE  ARMY. 

See  Discipline  X  F  1;  2. 

See  Civil  authorities  I  B  1. 

Appropriations  for See  Appropriations  XXIV. 

Civilian  messenger,  payment  of. See  Army  II  K  1  f  (1) . 

Claims,  not  available  to  pay  certain See  Claims  IV. 

Reward  paid  from See  Desertion  V  B  1  a  to  d. 

CONTINGENCIES  OF  THE  WAR  DEPARTMENT. 

Appropriations  for See  Appropriations  XXIII. 

CONTINGENT  INCAPACITY. 

Can  not  be  retired  for See  Retirement  I  B  1  b  (1)  (&). 

CONTINUANCE  OF  COURT-MARTIAL. 

See  Articles  of  War  XCIII  A  1;  2. 

CONTINUING  PUNISHMENT. 

Incapacity  to  hold  office See  Pardon  XVI  A  1. 

Pardon  of. See  Pardon  IV  to  V. 


CONTINUOUS   SERVICE — CONTRACTS:    SYNOPSIS.  283 

CONTINUOUS  SEEVICE. 

See  Absence  II  B  9. 

Affected  by  acceptance  for  reenlistment See  Enlistment  I  A  8  b;  c. 

During  fradulent  enlistment See  Enlistment  I  A  9  o. 

Pay See  Pay  and  allowances  I  C  5  to  6. 

CONTRABAND. 

Seizing  of,  to  preserve  neutrality See  Army  II  K  1  e  to  f. 

CONTRACTS.^ 

I.  PARTIES  TO  CONTRACTS  AND  SIGNING  OF  CONTRACTS. 
A.  The  United  States. 

1.  Where  name  of  contracting  officer  recited  in  body  of  contact 

varies  from  name  actually  signed Page  291 

2.  Where  Congress  imposes  upon  certain  named  officials  duty  of 

making  contract,  such  duty  can  not  be  delegated . .  Page  292 
■  B.  The  Contractor. 

1.  Where  individual  conducts  business  under  company  named 

contract  and  bond  should  be  in  name  of  individual. 

2.  Assignees  and  executors  should  execute  contract  in  their  own 

name  not  in  name  of  assignor  or  testator. 

3.  No  objection  to  an  executor  being  a  party  to  a  contract. 

4.  A  Government  agency  or  instrumentality  may  contract  with  the 

Government. 
n.  CONTRACT  WITH  PUBLIC   OFFICER  IN   HIS  OFFICIAL  CAPACITY 

DOES  NOT  BIND  HIM  PERSONALLY Page  293 

m.  SCOPE    AND    PURPOSE    OF    SECTION    3709,    REVISED    STATUTES, 
WHICH  REQUIRES  ADVERTISING. 

A.  In  General. 

B.  Performaj^ce  of  Work  by  Hired  Laborers Page  294 

C.  Not  Illegal  to  Limit  Bids  to  Certain  Special  Make  of  Appa,- 

RATUS. 

D.  Sufficiency  of  Description  in  Advertisement. 

IV.  OTHER  ACTS  THAT  REQUIRE  ADVERTISING. 

A.  Act  of  March  2,  1901 Page  295 

B.  Act  of  June  17,  1910. 

V.  SECTION     3828,    REVISED    STATUTES,    FORBIDDING     ADVERTISE- 

MENTS FOR  EXECUTIVE  DEPARTMENTS  EXCEPT  BY  AUTHOR- 
ITY OF  HEAD  OF  DEPARTMENT. 

A.  Written  Authority  Must  Precede  Publication. 

B.  Does  Not  Apply  to  California  Debris  Commission.  .  Page  296 

VI.  BIDS    AND    BIDDERS. 

A.  In  General  Who  is  Lowest  Bidder Page  297 

B.  Lowest  Responsible  Bidder  for  Printing  Under  Act  of  June 

30,  1886 Page  298 

C.  Where  Bidder  Defaults  Contract  With  "Some  Other  Per- 

son" and  Loss  Charged  to  Guarantors. 

D.  Contract  Void  if  Not  Made  With  Lowest  Responsible  Bidder 

Under  Act  of  July  5,  1884. 

E.  Bids  Received  After  Hour  for  Opening  Bids Page  299 

*  Prepared  by  Maj.  H.  M.  Morrow,  judge  advocate,  assistant  to  Judge  Advocate 
General. 


284  CONTRACTS:   SYNOPSIS. 

VI.  BIDS  AND  BIDDERS— Continued. 

F.  Letter  Accompanying  Bid  Considered  Part  of  it.  . .  Page  300 

G.  Failure  to  Sign. 

H.  Verbal  Authority  to  Sign  Bidder's  Name  to  Bid  is  Sufficient. 
I.  Requirements  of  Advertisements  that  May  be  Waived. 
J.  Rejection  of  Bids. 

1.  Readvertisement  equivalent  to  rejection  of  all  bids  not  before 

accepted Page  301 

2.  Acceptance  of  one  bid  constitutes  rejection  of  all  others. 

3.  Where  all  bids  rejected  all  guarantors  released Page  302 

4.  For  fraud,  collusion,  etc. 

5.  Under  General  Order  167,  War  Department,  1905,  for  unjustifi- 

able failure  to  fill  former  contract Page  303 

6.  Where  bidder  interested  in  more  than  one  bid. 

7.  Where  contract  executed,  it  can  not  be  canceled  on  account 

of  failure  to  perform  previous  contract. 
K.  Bidder  Can  Not  Demand  Prices  of  Other  Bids. 
L.  Variance  Between  Advertisement  and  Bid. 

M.  Variance  Between  Acceptance  and  Bid Page  304 

N.  Bidders   Can  Not  Make   Material  Amendment  to  Bid  After 

Bids  Have  Been  Opened Page  305 

O.  Instances  as  to  Whether  Bid  Is  for  All  or  Part  Only  of  the 
Articles  or  Quantity. 
Vn.  EXCEPTIONS  TO  THE  RULE  REQUIRING  ADVERTISING. 

A.  Where   There   Is  an  Exigency  Under    Section   3709  Revised 

Statutes. 

1.  What  constitutes  an  exigency Page  306 

2.  Who  can  determine  whether  exigency  exists. 

B.  Where  Supplies  or  Services  Are  Not  Under  a  "Department" 

Under  Section  3709,   Revised  Statutes Page  307 

C.  Where  Subject  of  Contract  Is  Not  "Supplies"  Under  Section 

3709,  Revised  Statutes Page  308 

D.  Where  Subject  of  Contract  Is  "Personal  Services"  Under 

Section  3709,  Revised  Statutes. 

E.  Where  the  Aggregate  Amount  Does  Not  Exceed  $500  Under 

Act  of  June  12,  1906. 

1.  The  act  of  June  12,  1906,  in  general Page  309 

2.  Does  not  apply  to  river  and  harbor  improvements  and  other 

civil  work  of  nonmilitary  character. 

3.  War  College  is  branch  of  "Army  Service." 

4.  When  aggregate  does  not  exceed  $500  not  necessary  to  adver- 

tise or  make  written  contract  as  required  by  section  3744, 
Revised  Statutes. 

5.  Meaning  of  purchases  "in  open  market." 

F.  Where  Statute  Provides  Work  May  Be  Done  "by  Contract 

or  Otherwise." 

1.  Under  the  act  of  August  11,  1888,  relating  to  river  and  harbor 

improvements. 

2.  Under  the  act  of  March  3,  1905,  relating  to  improvements  at 

West  Point Page  310 

G.  Where  Competition  Would  Be  Useless. 

1.  Patented  and  copyrighted  articles Page  311 

2.  Obtaining  of  rare  maps. 

3.  Miscellaneous  instances. 


contracts:  synopsis.  285 

Vn.  EXCEPTIONS  TO  THE  RULE  REQUIRING  ADVERTISING— Con. 
H.  Where  Previous  Advertisement  Is  Without  Result. 
I.  Where  the  Purchase  Is  from  Another  Executive  Department 
OR  Bureau,  or  From  a  Governmental  Agency  Such  as  a  Post 

Exchange,  Post  Laundry,  etc Page  312 

J.  Where  Additional  Work  is  Required  as  "Extras"  or  Under 
A  Supplemental  Contract. 

1.  If  contract  still  in  existence  there  may  be  a  supplemental  con- 

tract, but  not  if  contract  has  been  canceled  or  annulled. 

2.  Where  contract  provides  for  additional  time,  such  time  may  bo 

granted  by  a  mere  letter Page  313 

3.  Supplemental  contract  must  be  confined  to  subject  of  original 

contract Page  314 

4.  Illustrations  of  supplemental  contract Page  317 

5.  General  character  of  an  "extra  " Page  320 

6.  Illustrations  of  "extras." 

7.  "Extras"  where  contract  requires  approval  before  performance 

of  work Page  321 

8.  Supplemental  contract  must  not  be  against  interest  of  United 

States.  Illustrations  of  the  nature  of  the  consideration  which 
will  make  a  supplemental  contract  in  the  interest  of  the 
United  States.  .1 Page  322 

9.  Even  after  expiration  of  time  limit  extension  of  contract  may 

be  made  to  specific  date  by  supplemental  contract.  Page  324 

10.  Even  aiter  waiver  of  time  limit  partial  payments  may  be  made 

in  accordance  with  contract. 

11.  Instances  that  do  not  constitute  an  extension  of  the  time  for 

completing  the  contract. 

12.  Contract  gives  subordinate  power  to  decide  a  certain  matter, 

his  discretion  can  not  be  controlled  by  superior. . .  Page  325 
Vm.  CONTRACTOR  NOT  RELEASED  FROM  CONTRACT  WHEN  RELEASE 
WOULD  BE  AGAINST  INTEREST  OF  UNITED  STATES...  Page  326 
IX.  MISTAKE  AS  GROUND  FOR  RELEASING  BIDDER   OR  FOR  NON- 
PERFORMANCE OF  CONTRACT. 

A.  Mistakes  That  Release  Bidder Page  328 

B.  Sale  by  Sample  and  Description,  Mistake  as  to  Sample.  Page  332 

C.  Mistake  Ground  for  Nonperformance  of  Contract.  . .  Page  333 

X.  MISCELLANEOUS  GROUNDS  FOR  NONPERFORMANCE  OF  CONTRACT. 

A.  Variance  Between  Contract  and  Requirement  op  Officer  in 

Charge. 

B.  Difficulty  of  Performing  an  Unconditional  Contract  not  an 

Excuse Page  334 

C.  Act  of  God  is  an  Excuse Page  335 

D.  Injunction  against  Contractor  not  an  Excuse. 

E.  Bankruptcy  of  Contractor  not  an  Excuse. 

XI.  LIABILITY      OF      BIDDERS      AND       GUARANTORS— CERTIFIED 

CHECKS,  ETC. 

A.  Withdrawal  after  Opening,  before  Acceptance — Changes  in 

Guaranty. 

B.  Withdrawal  before  Opening — Partial  Withdrawal..  Page  336 

C.  Withdrawal  after  Acceptance Page  337 


286  contracts:  synopsis. 

XI.  LIABILITY  OF  BIDDERS,  ETC.— Continued. 

D.  Guarantors'  Liability  Strictly  Construed. 

1.  Where  bidder  dies  within  time  limit,  estate  not  bound. 

2.  Notice  called  for  in  guaranty  must  be  actual. 

3.  Acceptance   after   expiration   of  time   limit  not  binding  on 

guarantors. 

E.  "Blanket"  and  "General"  Guaranties  Legal Page  338 

F.  Regulation  Requiring  Guaranties  may  be  Waived. 

G.  Omission  to  File  Guaranty  not  Cured  by  Filing  Bond  after 

Opening, 
H.  Where  Guaranty  is  not  Required  by  Instructions. 
I.  Certified  Check  Substantial  Compliance  with  Requirement 

FOR  Guaranty. 
J.  Certified  Check,  Bidder  not  Liable  beyond  Amount.  Page  339 
K.  Where  Certified  Check  was  to  be  Retained  to  Secure  Con- 
tract, should  be  Cashed  and  Suit  Instituted  for  Balance 
of  Loss. 
L.  Cash   Deposited   to    Secure    Contract   Applied   to    Complete 
Work,  Balance,  if  any,  Returned  to  Contractor. 
Xn.  ADVANCES     OF     PUBLIC     MONEY— SECTION     3648,     REVISED 
STATUTES. 
A.  Rent  may  be  Paid  in  Advance. 
Xm.  CONTRACTS  AND  EXPENDITURES  IN  EXCESS  OF  APPROPRI- 
ATIONS. 

A.  Section  3679,  R.  S. — Fiscal-Year  Contracts,  etc Page  340 

B.  Section  3679,  R.  S.,  as  Amended  March  3,  1905 Page  341 

C.  Section  3732,  Revised  Statutes — Subsistence,   etc.,   of  Army 

Excepted • Page  343 

D.  Section  3733,  Revised  Statutes,  Buildings  and  Public  Improve- 

ments   _  Page  345 

E.  Contracts  in  Excess  of  Appropriations,  Conditioned  on  Futur^ 

Appropriations    or   Imposing    Indefinite    Liability    on   the 

United  States,  Unauthorized Page  846 

XIV.  ASSIGNMENT  OF  CONTRACTS,  ETC.— SECTIONS  3477  AND  3737, 
REVISED  STATUTES. 

A.  General  Effect  of  These  Statutes Page  347 

B.  Assignment  Voidable  not  Void. 

C.  Contract  Provisions  Regarding  Assignment Page  348 

D.  Do  NOT  Include  Assignments  in  Bankruptcy,  for  the  Benefit 

OF  Creditors,  etc. 

E.  Do  NOT  Apply  to  Assignments  by  Operation  of  Law — Execu- 

tors, ETC. 

F.  Receiver  Bound  and  Entitled  to  Perform Page  349 

G.  Distinction  Between  Assignment  of  Contract  and  of  Claim 

UNDER  Contract. 
H.  Money  Due  under  Contract  Payable  to  Contractor  Only. 

I.  Agreement  With  Surety Page  350 

J.  Instances  of  Assignments  Void  under  Section  3477,  Revised 
Statutes. 


contracts:  synopsis.  287 

XV.  PURCHASES  FORBIDDEN  FROM  PERSONS  IN  THE  MILITARY 
SERVICE  OR  IN  WHICH  MEMBERS  OF  CONGRESS  INTER- 
ESTED. 

A.  Under  Paragraph  603,  Army  Regulations,  1910. 

1.  Directory  only,  officer  under  no  statutory  incapacity.  Page  351 

2.  Does  not  apply  where  contract  requires  approval  of  Secretary 

of  War PageS52 

3.  Does  not  include  civilian  employees,  etc. 

4.  Does  not  apply  to  wife  of  soldier  carrying  on  independent 

business Page  353 

5.  Does  not  apply  where  contract  is  with  corporation  in  which 

officer  holds  stock. 

B.  Contract  in  Which  Member,  etc.,  op  Congress  Interested — • 

Sections  3739  to  3742,  Revised  Statutes. 

C.  Lease  of  Building  by  Retired  Officer Page  354 

XVI.  CONTRACTS  TO  BE  IN  WRITING  AND  SIGNED  AT  THE  END— SEC- 
TION 3744,  REVISED  STATUTES. 

A.  Scope  and  Effect — Illustrations Page  355 

B.  Where  under  Accepted  Bid  Performance  Begins  With  Accept- 

ance, ON  Refusal  to  Approve  Contract,  Bidder  to  be  Paid 
for  Work  Performed Page  359 

C.  In  Absence  of  Written  Contract  no  Recovery  for  Failure  to 

Perform. 

D.  Effect  of  Papers  Signed  by  One  Party  Only. 

E.  Contracts  for  Soldiers'  Home  not  Within  Section  3744,  Revised 

Statutes Page  360 

F.  Paragraph  558,  Army  Regulations,   1910,  as  to  Methods  op 

Purchasing  Supplies. 

G.  Formal  Written  Contract  Not  Required  under  Act  of  June 

12,  1906. 

H.  Sufficient  Signing  under  the  Statute Page  361 

XVn.  RETURNS  OFFICE— OATHS— SECTION  3745,  REVISED  STATUTES. 
XVm.  SET-OFFS    AND    RIGHT   TO  WITHHOLD    MONEYS    DUE   CON- 
TRACTOR    Page  362 

TTT    DAMAGES,  LIQUIDATED  DAMAGES,  AND  PENALTIES  TO  SECURE 
ACTUAL  DAMAGES. 

A.  Provision  for  Forfeiture  a  Penalty Page  363 

B.  Provision  for  Reduction  in  Price  May  be  a  Penalty. 

C.  Provision  for  Forfeiture   of  all  Retained  Percentagesv 

Penalty, 

D.  Provision  for  Damages  for  Failure  as  to  Any  of  Two  or  More 

Independent  Things  a  Penalty, 

E.  Where  Forfeiture  of  Certified  Check  is  a  Penalty...  Page  364 

F.  Where  Damages  are  Excessive,  Stipulation  will  be  Regarded 

as  a  Penalty, 

G.  Salary,  etc,  of  Inspector.. Page  365 

H.  Delay  by  Subcontractors  no  Ground  for  Relief, 

I,  Damages  Where  Similar  Articles  can  not  be  Procured. 

1,  Principal  contractor  liable  where  his  failure  requires  increased 
payments  to  contractors  for  minor  parts  of  work. 


288  CONTKACTS:    SYNOPSIS. 

XIX.  DAMAGES,  LIQUIDATED  DAMAGES,  ETC.— Continued. 

J.  Damages  Where  There  is  Such  Delay  as  to  Amount  to  Aban- 
donment OF  Contract Page  366 

K.  Where  Damages  can  not  be  Ascertained  Owing  to  Abandon- 
ment OF  Project  by  Government. 
L.  Contractor  Responsible  for  Actual  Damages,  Although  None 

Stipulated  for. 
M.  Where  Delay  is  Chargeable  to  Government. 
N.  Where  a  Certified  Check  Given  to  Secure  Return  op  Plans 

Actual  Damages  Only  Can  be  Deducted Page  367 

XX.  LABOR  AND  MATERIAL-MEN. 

A.  Have  No  Lien  on  Government  Property. 

B.  Prior  to  Act  of  August  13,  1894,  Secretary  of  War  Could  Not 

Authorize  Subcontractor  to  Sue  on  Contractor's  Bond  in 
Name  of  United   States Page  368 

C.  Bonds  Under  the  Act  of  August  13,  1894. 

1.  Scope  of  act. 

2.  Where  vessel  built  in  foreign  country Page  369 

3.  Certified  check  can  not  be  received  in  lieu  of  bond. 

4.  Allegations  in  affidavit  required  to  accompany  application  for 

copy  of  bond. 

5.  When  copy  of  contract  and  bond  should  be  furnished. 

6.  United  States  should  not  withhold  money  due  contractor  in 

order  to  pay  debts  of  contractor  or  indemnify  siu:ety. 

7.  Double  aspect  of  bond Page  370 

8.  Contract  between  United  States  and  municipality  not  within 

act. 

9.  Failure  to  pay  subcontractors'  claim  no  sufficient  cause  to  strike 

company  off  list  of  qualified  sureties. 

10.  Assignee  in  bankruptcy  should  give  bond  for  protection  of 

labor  and  material-men. 

11.  Where,  on  default,  supplementary  contract  made  with  surety  to 

finish  the  work,  new  bond  should  be  given Page  371 

12.  On  proper  application  copy  of  contract  and  bond  should  be  fur- 

nished to  subcontractors. 

13.  Where  the  work  has  been  performed,  bond  should  be  required 

before  payment  for  the  protection  of  labor  and  material-men. 

14.  Copy  furnished  should  be  authenticated  as  required  by  section 

882,  Revised  Statutes. 

15.  Permission  under  Secretary  of  War  not  required  for  commence- 

ment of  suit. 
XXI.  ANNULMENT  OF  CONTRACT  BY  UNITED  STATES. 

A.  Where  Forfeiture  Follows  Annulment,  Positive  Action  to 

Indicate  Intent  to  Annul. 

B.  Mere  Breach  op  a  Term  of  Contract  Insufficient..  Page  372 

C.  Action    in    Annulling    Contract    Final    and    Can    Not    Be 

Rescinded. 

D.  Where    Contract   Provides   for  Taking   Possession   of  and 

Retaining  Plant.,  etc.,  of  Contractor  on  Annulment,  Use 
OP  Plant  on  Other  Improvements. 

E.  To  Justify  Annulment  there  Must  Be  a  Substantial  Failurb 

to  Perform  Faithfully. 


contracts:  synopsis. 


289 


XXn.  ABANDONMENT  AND  REPUDIATION  BY  CONTRACTOR. 

A.  Unreasonable   Delay  in  Commencing  Performance  May  Be 

Treated  as  Abandonment Page  373 

B.  Where  There  Is  an  Anticipatory  Breach,  Government  Need 

Not  Await  Expiration  op  Time  Before  Taking  Steps  to  Sup- 
ply Deficiency. 
XXm.  CONTRACTS  WITH  ALIENS  AND  EMPLOYMENT  OF  ALIEN  AND 
CONVICT  LABOR. 

A.  No  Authority  to  Restrict  Purchases  to  Articles  of  Domestic 

Production,  nor  to  Forbid  Employment  op  Aliens,  in  Absence 
OF  Statute. 

B.  No  Authority  to  Prevent  Contractor   from  Using   Convict 

Labor  in  Absence  of  Statute. 

C.  No  Statute  Justifying    Annulment   Because  Italian  Labor 

Employed Page  374 

D.  The  Executive  Order  of  May  18, 1905,  Forbidding  the  Employ- 

ment OF  Persons  Undergoing  Sentences  of  Imprisonment. 

E.  Aliens  are  Competent  to  Bid  for  Government  Work. 

F.  Contract    Provision    that   Contractor    Should   not   Permit 

Anyone    Furnishing    Him  Labor   or   Material   to   Employ 
Convicts. 

G.  The  Act  of  March  3,  1875,  as  to  Giving  Preference  to  American 

Material Page  375 

H.  Under  Act  op  March  4, 1911,  as  to  Purchase  of  Foreign  Mate- 
rial FOR  Fortifications,  General  Authorization. 
XXIV.  CONTRACTS  CONTAINING  PROVISION  FOR  AN  INCREASE  OR 

DECREASE  IN  ORIGINAL  QUANTITY Page  376 

XXV.  OCCUPATION  OF  PREMISES  UNDER  CONTRACT,  EXPRESS  OR 
IMPLIED,  RAISES  IMPLIED  OBLIGATION  SO  TO  USE  PREMISES' 

AS  NOT  TO  INJURE  THEM  UNNECESSARILY Page  377 

XXVI.  WHERE  DESCRIPTION  AMOUNTS  TO  WARRANTY. 
XXVn.  WHERE  A  CONTRACTOR  IS  RESPONSIBLE  FOR  LOSS  BY  FIRE 
AND  FAILS  TO  COMPLETE  BUILDING  AND  GOVERNMENT 
COMPLETES  THE  BUILDING  IT  MAY  BE  INSURED  AT  EX- 
PENSE OF  CONTRACTOR. 
XXVm.  WHERE  BIDDER  FAILS  TO  ENTER  INTO  CONTRACT,  CONTRACT 
MAY  BE  MADE  WITH  GUARANTOR  AS    AN    OPEN-MARKET 

TRANSACTION Page  378 

XXIX.  WHERE    CONTRACTOR    FAILS    TO    CARRY    OUT    CONTRACT, 
SURETY  NOT  ENTITLED  TO  PERFORM  IN  ABSENCE  OF  PRO- 
VISION TO  THAT  EFFECT. 
XXX.  WHERE  A  PARTNERSHIP  IS  DISSOLVED,  ONE  OF  THE  MEM- 
BERS MAY  BE  ALLOWED  TO  MAKE  CONTRACT. 
XXXI.  PAYMENTS  MAY  BE  MADE  TO  ANY  MEMBER  OF  A  PARTNER- 
SHIP, ALTHOUGH  ONE  OF  THE  MEMBERS  MAY  HAVE  FILED 
PROTEST. 
XXXn.  ARMY  REGULATIONS,  ALTHOUGH  NOT  STRICTLY  APPLICABLE 
TO  CONTRACT  OF  UNITED  STATES  SOLDIERS'  HOME,  SHOULD 
BE  FOLLOWED. 
XXXm.  CONTRACT  WITH  EMPLOYEE  TO  FORFEIT  ALL  PAY  DUE  IF  HE 

QUITS  SERVICE  WITHOUT  NOTICE  IS  LEGAL. 
XXXIV.  WHERE  GOVERNMENT  HAS  OPTION  TO  RENEW  CONTRACT, 
THE  SOLICITING  OF  BIDS  FOR  NEW  FISCAL  YEAR  IS  NOT 
AN  ABANDONMENT  OF  OPTION. 
31106°— 12 19 


290  contracts:  synopsis. 

XXXV.  PRINTING  FOR  CONSTRUCTING  QUARTERMASTER  NOT  PRINT- 
ING "AT  DEPARTMENT  HEADQUARTERS" Page  379 

XXXVI.  CONTRACTS  UNDER  WAR  DEPARTMENT  NOT  REQUIRED  TO 

BE  UNDER  SEAL. 
XXXVn.  WHERE  BIDDER  HAS  BEEN  PLACED  IN  HANDS  OF  RECEIVER 
APPROVING  OFFICER  MAY  REFUSE  TO  APPROVE  CONTRACT. 
XXXVm.  WHERE  ARTICLES  BID  FOR  NOT  CONSIDERED  SUITABLE  BY 
THE  GOVERNMENT,  APPROVING  OFFICER  MAY  REFUSE  TO 
APPROVE  CONTRACT. 
XXXK.  ACCIDENTAL  FIRE  NOT  "FORCE  OR  VIOLENCE  OF  THE  ELE- 
MENTS"; CONSTRUCTION  OF  THE  WORDS  "BY  NO  FAULT 
OF  HIS  OWN."  ,      . 

XL.  VOLUNTARY  SERVICES  NOT   REQUIRED .'....  Page  380 

XLI.  EVEN   AFTER   CONTRACT   IS   ENTIRELY   COMPLETED   ADDI- 
TIONAL PAYMENT  MAY  BE  MADE  ACCORDING  TO  TERMS 
OF  CONTRACT  TO  COVER  TARIFF  DUTIES  PAID. 
XLH.  WHERE  THE  CONTRACT  PROVIDES  FOR  SUPPLY  OF  FORAGE 
FOR  A  PARTICULAR  STATION  ONLY  IT  IS  ILLEGAL  TO  ASK 
FOR  FORAGE  BEYOND  THE  NEEDS  OF  THAT  PARTICULAR 
STATION. 
XLm.  THE  LANGUAGE  " HEIRS,  EXECUTORS,  AND  ADMINIS- 
TRATORS" NOT  ESSENTIAL  IN  CONTRACT. 
XUV.  MEANING  OF  WORD  "LOCALITY"  WHERE  HAY  CALLED  FOR 

OF  A  CERTAIN  GRADE  OF  THE  "LOCALITY  " Page  381 

XLV.  CONSTRUCTION  OF  VARIOUS  PROVISIONS  IN  CONNECTION 
WITH  DREDGING  AND  EXCAVATING  CONTRACTS. . . .  Page  382 
XLVI.  THE  EFFECT  OF  CONSTRUCTION  OF  POST  SEWER  IS  TO 
BENEFIT  NOT  ONLY  THE  GOVERNMENT  BUT  ALSO  A  WATER 
COMPANY  FROM  WHICH  THE  GOVERNMENT  PURCHASES 
WATER,  IT  IS  LEGAL  TO  CONTRACT  WITH  WATER  COM- 
PANY FOR  REDUCTION  IN  PRICE  UNTIL  THE  CONSEQUENT 

SAVING  EQUALS  THE  COST  OF  THE  SEWER Page  383 

XLVn.  NOTWITHSTANDING  DELAY  IN  THE  APPROVAL  OF  CONTRACT 
THERE  WERE  UNUSUAL  INSTRUCTIONS  TO  BIDDERS,  THE 
DELIVERY  OF  SUPPLIES  SHOULD  BEGIN  FROM  THE  DATE 
OF  CONTRACT  AND  NOT  FROM  DATE  OF  RECEIPT  OF  AP- 
PROVED COPY  OF  CONTRACT. 
XLVm.  ACTION  OF  GOVERNMENT  IN  ORDERING  DELIVERY  OF  SUP- 
PLIES STOPPED  AFTER  MINIMUM  QUANTITY  DELIVERED 
CONSTITUTES  AN  ELECTION  TO  ORDER  MINIMUM  QUAN- 
TITY ONLY. 
XUX.  PARAGRAPH  535,  ARMY  REGULATIONS  1910,  AS  TO  RENDER- 
ING ASSISTANCE  IN  PREPARATION  OF  PROPOSALS  FOR  CON- 
TRACTS, APPLIES  TO  RETIRED  OFFICERS Page  384 

L.  PARAGRAPH  663,  ARMY  REGULATIONS  1910,  AS  TO  FORBIDDING 

SETTLEMENT  WITH  HEIRS,  EXECUTORS,  ETC. 
LI.  SECTION  216,   REVISED   STATUTES,   GIVES  THE  SECRETARY 

POWER  TO  MAKE  REGULATIONS. 
LH.  SECTION  3651,  REVISED  STATUTES,  AS  TO  MAKING  PAYMENTS 

IN  MONEY  FURNISHED  TO  DISBURSING  OFFICER. 
Lm.  SIGNING  OF  VOUCHERS,  BONDS,  CONTRACTS,  BIDS,  ETC.,  BY 

TYPEWRITER  OR  RUBBER  STAMP Page  385 

LIV.  SECRETARY  OF  WAR  MAY  SET  ASIDE  HIS  ACTION  ON  A  CON- 
TRACT AT  ANY  TIME  BEFORE  CONTRACTOR  HAS  BEEN 
NOTIFIED. 


CONTRACTS  I   A  1.  291 

LV.  FAILURE  OF  CONTRACTOR  TO  OBSERVE  A  CONTRACT  PROVI- 
SION THAT  HE  RENDER  PERIODICAL  REPORTS  OF  WORK 
DONE  DOES  NOT  PREVENT  RECOVERY  FOR  WORK  OMITTED 
FROM  REPORT. 
LVI.  NO  AUTHORITY  OF  PARTNER  TO  SIGN   INSTRUMENTS  FOR 

PARTNERSHIP  IF  SUCH  INSTRUMENTS  ARE  UNDER  SEAL. 
LVn.  WHERE  A  PURCHASE  HAS  NOT  MET  THE  STRICT  GOVERN- 
MENT TEST  IT  MAY  BE  ACCEPTED  UPON  THE  CONTRACTOR 
GIVING  BOND  TO  REPLACE  THE  PURCHASE  IF  IT  SHOULD 

PROVE  DEFECTIVE Page  386 

LVm.  STOPPAGE  OF  SUPPLIES.    (See  Contracts  XLVIII.) 
LIX.  CONTRACTING  OFFICER  CAN  NOT  DESIGNATE  THE  OFFICIALS 
BEFORE  WHOM   A  CONTRACT   OR   BOND   SHALL  BE   EXE- 
CUTED. 
LX.  TRANSPORTATION  OF  TROOPS  OR  SUPPLIES  THROUGH  FOR- 
EIGN COUNTRY. 
LXI.  UNITED  STATES  CAN  NOT  RECOVER  FROM  GOVERNMENT  CON- 
TRACTOR DAMAGES  RESULTING  FROM  PROPER  BLASTING. 
LXn.  PAYMENT  TO  CONTRACTOR  WHERE  UNITED  STATES  IS  IN 
POSSESSION  OF  PLANT  CONSTRUCTED,  ALTHOUGH  THE  POS- 
SESSION IS  ALLEGED  TO  INFRINGE  A  PATENT Page  387 

I  A  1 .  A  contract  ^  recited  that  it  was  entered  into  between  Capt. 
A  and  the  contractor,  while  it  was  signed  on  behalf  of  the  United  States 
by  Maj.B,  held  the  vahdity  of  the  instrument  was  not  thereby  affected. 
In  legal  effect  the  contract  was  made  with  the  United  States  and  was 
signed  by  a  proper  agent  of  the  United  States.     The  recital  of  the 

^  The  power  of  the  United  States  to  make  contracts  is  implied  from  its  possession 
of  the  powers  of  sovereignty.  The  United  States  is  competent  to  enter  into  any  con- 
tract not  prohibited  by  law  which  is  found  to  be  expedient  in  the  just  exercise  of  the 
powers  confided  to  it  by  the  Constitution  without  even  any  express  legislative  author- 
ity, and  it  may  be  a  party  to  implied  as  well  as  express  contracts.  In  U.  S.  v.  Tingey 
(5  Pet.,  127)  it  is  said,  "Upon  this  posture  of  the  case  a  question  has  been  made  and 
elaborately  argued  at  the  bar  how  far  a  bond  voluntarily  given  to  the  United  States 
and  not  prescribed  by  law  is  a  valid  instrument,  binding  upon  the  parties  in  point 
of  law;  in  other  words,  whether  the  United  States  have  in  their  political  capacity  a 
right  to  enter  into  a  contract  or  to  take  a  bond  in  cases  not  previously  provided  for 
by  some  law.  Upon  full  consideration  of  this  subject  we  are  of  opinion  that  the 
United  States  have  such  a  capacity  to  enter  into  contracts.  It  is,  in  our  opinion,  an 
incident  to  the  general  right  of  sovereignty;  and  the  United  States  being  a  body- 
politic,  may,  within  the  sphere  of  the  constitutional  powers  confided  to  it  and  through 
the  instrumentality  of  the  proper  department  to  which  those  powers  are  confided, 
enter  into  contracts  not  prohibited  by  law  and  appropriate  to  the  just  exercise  of 
those  powers."  See  also  Dugan  v.  U.  S.,  3  WTieat.  CU.  S.),  172;  U.  S.  v.  Bradley, 
10  Pet.  (U.  S.),  343;  U.  S.  v.  Linn,  15  Pet.  (U.  S.),  290;  Cotton  v.  U.  S.,  11  How.  (U. 
S.),  229;  Neilson  v.  Lagow,  12  How.  (U.  S.),  107;  U.  S.  v.  Hodson,  10  Wall.  (U.  S.), 
407;  U.  S.  V.  Powell,  14  Wall.  (U.  S.),  502;  Jessup  v.  U.  S.,  106  U.  S.,  151;  Tyler  v. 
Hand,  7  How.  (U.  S.),  573;  U.  S.  v.  Mora,  97  U.  S.,  413;  Daniels,  v.  Teamey,  102 
U.  S.,  417;  Moses  v.  U.  S.,  166  U.  S.,  571. 

In  Smoot's  case,  15  Wall.,  36,  the  United  States  Supreme  Court  held  that  contracts 
of  the  Government  should  be  given  the  same  construction  and  effect  as  though  both 
parties  were  private  individuals.  In  this  case  the  court  said:  "There  is  ina  large  class 
of  cases  coming  before  us  from  the  Court  of  Claims  a  constant  and  ever  recurring  attempt 
to  apply  to  contracts  made  by  the  Government  and  to  give  to  its  action  under  such 
contracts  a  construction  and  an  effect  quite  different  from  those  which  courts  of 
justice  are  accustomed  to  apply  to  contracts  between  individuals.  There  arises  in 
the  mind  of  parties  and  counsel  interested  for  the  individual  against  the  United 
States  a  sense  of  the  power  and  resources  of  this  gi'oat  Government,  prompting  appeals 
to  its  magnanimity  and  generosity,  to  abstract  ideas  of  equity,  coloring  even  the 
closest  legal  argument.  -These  are  addressed  in  vain  to  this  court.  Their  proper 
theater  ia  the  halls  of  Congress,  for  that  branch  of  the  Government  has  limited  the 


CONTRACTS  I   A  2. 

name  of  the  agent  in  the  contract  is  not  essential  and  an  erroneous 
recital  may  be  rejected  as  surplusage.*     C.  10Jfi2,  May  I4,  1901. 

I  A  2.  Congress  having  imposed  upon  certain  designated  officials 
the  duty  of  representing  the  United  States  in  the  malSng  of  the  con- 
tract for  the  monument  to  Lafayette,  held  that  the  authority  was 
personal  and  could  not  be  delegated,  and  that  all  the  officials  named, 
or  at  least  a  majority  of  them,  must  sign  the  contract.  R.  52,  363, 
July  1,1887. 

I  B  1.  Where  an  individual  conducts  his  business  under  a  company 
name,  a  contract  and  bond  should  be  in  the  name  of  the  individual 
and  not  in  the  name  of  the  company,  as  the  latter  being  a  mere  name 
having  no  existence  as  an  artificial  being,  such  as  a  partnership  or 
corporation,  is  incapable  of  being  a  party  to  a  bond.  G.  18197,  May 
11, 1907. 

I  B  2.  Where  an  assignee  for  a  corporation  has  been  appointed  by 
a  State  court,  and  authorized  to  carry  on  the  business,  and  desires 
to  enter  into  a  contract  with  the  United  States,  the  contract  and 
bond  should  be  in  the  name  of  and  signed  by  the  assignee,  and  not 

signed  in  the  name  of  the  corporation  '^  by assignee."    C.  2I^Ifi, 

July  16  and  30,  1896.  So,  where  a  bidder  died  before  the  contract 
was  entered  into,  held  that  the  contract  and  bond  should  be  in  the 
names  of  the  executors  of  his  estate  as  such  executors,  and  not  in  the 
name  of  the  bidder  ''by  — executors.''^    C.  8^03,  May  11,  1900. 

IBS.  Held  that  there  is  no  legal  objection  to  making  a  Govern- 
ment contract  with  an  executor  as  such.  If  the  executor  had 
authority  to  carry  on  the  business  of  his  testator,  the  assets  of  the 
estate  would  be  bound  as  well  as  the  executor  individually,  but  if 
the  executor  had  no  such  authority  he  alone  would  be  bound.  C. 
16550,  July  6, 1904. 

jurisdiction  of  the  Court  of  Claims  to  cases  arising  out  of  contracts  express  or 
imj)lied — contracts  to  which  the  United  States  is  a  party  in  the  same  sense  in  which 
an  individual  might  be  and  to  which  the  ordinary  principles  of  contracts  must  and 
should  apply. 

"It  would  be  very  dangerous,  indeed,  to  the  best  interests  of  the  Government — 
it  would  probably  lead  to  the  speedy  abolition  of  the  Court  of  Claims  itself — if,  adopting 
the  views  so  eloquently  urged  by  counsel,  that  court  or  this  should  depart  from  the 
plain  rule  laid  down  above  and  render  decrees  on  the  crude  notions  of  the  judges  of 
what  is  or  would  be  morally  right  between  the  Government  and  the  individual. 
*  *  *  ^t  *  *  * 

"In  approaching  the  inquiry  into  the  effect  which  the  action  of  the  Bureau  of  Cavalry 
in  adopting  these  new  rules  for  inspection  had  upon  the  rights  of  the  parties  to  this 
contract  let  us  endeavor  to  free  ourselves  from  the  consideration  that  the  Government 
was  one  party  to  the  contract,  and  that  it  was  for  a  large  number  of  horses;  for  we  hold 
it  to  be  clear  that  the  principles  which  must  govern  the  inquiry  are  the  same  as  if  the 
contract  were  between  individuals  and  the  number  of  horses  one  or  a  dozen  instead 
of  four  thousand."    See  also  U.  S.  v.  Smith,  94  U.  S.,  217. 

In  U.  S.  V.  Bostwick,  94  U.  S.,  66,  it  was  said,  "The  United  States  when  they  con- 
tract with  their  citizens  are  controlled  by  the  same  laws  that  govern  the  citizen  in 
that  behalf.  All  obligations  which  would  be  implied  against  citizens  under  the 
same  circumstances  will  be  implied  against  them.' 

In  30  Ct.  Cls.,  360,  it  was  said,  "The  law,  as  we  understand  it,  was  stated  by  Hamilton 
in  these  words,  'When  a  Government  enters  into  a  contract  with  an  individual,  it 
deposes,  as  to  the  matter  of  the  contract,  its  constitutional  authority  and  exchanges 
the  character  of  a  legislator  for  that  of  a  moral  agent  with  the  same  rights  and  obliga- 
tions as  an  individual,'"  citing  3  Hamilton's  Works,  518;  15  Peters,  392;  Deming's 
case,  1  Ct.  Cls.,  191;  11  id.,  520;  28  id.,  105. 

The  United  States  as  a  contractor  can  not  be  held  liable  for  acts  of  United  States 
as  a  sovereign  or  legislator.  Deming's  case,  1  Ct.  Cls.,  190f' Jones  v.  U.  S.,  1  id.,  383. 
See  also  Cooke  v.  U.  S.,  91  U.  S.,  398;  Curtis  v.  U.  S.,  2  Ct.  Cls.,  152,  and  11  id.,  520. 

^  Bishop  on  Contracts,  sec.  116. 


CONTRACTS  tl.  293 

II.  An  Army  officer  entered  into  a  contract  for  the  supplying  of 
beef  in  his  official  capacity  and  as  an  agent  of  the  Government. 
Through  the  fault  of  tlie  officer  the  Government  failed  to  carry  out 
its  part  of  the  contract.  Held,  that  the  contract  being  a  Govern- 
ment contract,  payment  due  on  it  should  be  made  by  the  Govern- 
ment, and  there  was  no  authority  for  requiring  the  officer  to  make 
payment  from  his  personal  funds,*  but  that  if  the  Government  paid 
for  the  beef,  which  through  the  fault  of  the  officer  had  become  a 
loss,  it  would  be  proper  to  stop  the  officer's  pay  to  reimburse  the 
Government.     C.  20612,  Nov.  15,  1906. 

Where  an  officer  of  the  Government  entered  into  a  contract  in  his 
official  capacity  and  as  an  agent  of  the  Government,  it  being  plainly 
understood  by  the  contractor  that  he  was  not  obligating  himseu 
personally,  held  that  he  could  not  be  held  personally  liable  to  the 
contractor  on  the  contract.  If  there  should  be  any  liability  to  the 
contractor  it  would  be  that  of  the  Government.  C.  2601,  Sept. 
11,  1896. 

Ill  A.  Section  3709,  R.  S.,  provides  ''All  purchases  and  contracts 
for  suppHes  or  services  in  any  of  the  departments  of  the  Government, 
except  for  personal  services,  shall  be  made  by  advertising  a  suffi- 
cient time  previously  for  proposals  respecting  the  same,  when  the 
public  exigencies  do  not  require  the  immediate  dehvery  of  the  arti- 
cles or  performance  of  the  service.  When  immediate  delivery  or 
performance  is  required  by  the  public  exigency,  the  articles  or  service 
required  may  be  procured  by  open  purchase  or  contract,  at  the 
places  and  in  the  manner  in  whicn  such  articles  are  usually  bought 
and  sold,  or  such  services  engaged,  between  individuals.^  Exigencies 
growing  out  of  a  state  of  war,  or  hostihties  with  Indians,  were  prob- 

*  A  public  agent  is  not  liable  on  a  contract  executed  by  him  on  behalf  of  the 
State,  even  in  cases  where  he  had  no  authority  to  make  the  contract;  and  where  his 
authoritj^  depends  on  a  statute  all  who  contract  with  him  are  conclusively  presumed 
to  know  its  extent.  Hodgin  v.  Dexter,  1  Cranch,  345,  363;  Parks  v.  Ross,  11  Howard, 
362;  New  York  &  Charleston  Steamship  Co.  v.  Harbison,  16  Fed.  Rep.,  688. 

2  Sec.  3709,  R.  S.,  was  amended  by  the  act  of  Jan.  27,  1894  (28  Stat.  33),  in  relation 
to  "contracts  for  supplies  in  the  departments  at  Washington." 

The  following  acts  also  relate  to  adVertisement  in  making  Government  purchases: 

The  act  of  June  17,  1910  (36  Stat.  531),  relates  to  advertisement  for  fuel,  ice,  and 
miscellaneous  supplies  for  executive  departments  and  other  Government  establish- 
ments ID  Washington. 

The  act  of  July  5,  1884  (23  Stat.  109),  requires  public  notice  of  from  10  to  60  days 
in  purchases  of  regular  and  miscellaneous  supplies  for  the  Army  furnished  by  the 
Quartermaster's  Department  and  by  the  Subsistence  Department. 

The  act  of  Mar.  2,  1901  (31  Stat.  905),  requires  that  the  purchase  of  supplies  for  the 
use  of  the  various  departments  and  posts  of  the  Army  and  of  the  branches  of  the  Army 
service  shall  be  made  only  after  advertisement. 

The  act  of  June  12,  1906  (34  Stat.  258),  provides  that  the  purchase  of  supplies  and 
the  procurement  of  services  for  all  branches  of  the  Army  service  may  be  made  in  open 
market  in  the  manner  common  among  business  men  when  the  aggregate  of  the  amount 
required  does  not  exceed  $500. 

The  act  of  May  11,  1908  (35  Stat.  125),  authorizes  the  Chief  of  Ordnance  to  purchase, 
in  such  manner  as  he  may  deem  most  economical  and  efficient,  articles  of  ordnance 
property  the  character  of  which  or  the  ingredients  thereof  are  of  such  a  nature  that 
the  interests  of  the  public  service  would  be  injured  by  publicly  divulging  them. 

The  annual  appropriation  act  for  the  support  of  the  Army  since  1886  has  provided 
that  purchases  of  horses  for  the  cavalry,  artillery,  engineers,  etc..  shall  be  made  after 
conapetition  duly  invited,  and  that  no  part  of  the  appropriation  shall  be  expended  for 
printing  unless  the  same  shall  be  done  by  contract,  after  due  notice  and  competition, 
except  in  emergency. 


204  CONTRACTS  III  B.    • 

ably  mainly  had  in  view,  and  it  is  exigencies  of  this  class  which  have 
been  considered  in  the  adjudged  cases  in  the  Supreme  Court  and 
Court  of  Claims.^  It  is  clear,  however,  that  other  exigencies  may 
exist  requiring  that  contracts  or  purchases  be  made  at  once  or  with- 
out the  delay  incident  to  advertising  for  proposals.  Thus  a  loss  of 
stores,  structures,  etc.,  on  hand,  caused  by  an  actus  Dei  or  vis  major — 
as  fire,  storm,  freshet,  or  a  sudden  riot  or  violent  disorder;  or  a  loss 
of  supphes  occasioned  by  the  neglect  of  military  subordinates  in 
charge;  or  a  failure  of  a  contractor  to  fulfill  a  contract  for  supplies, 
transportation,  or  other  service — might  properly  be  regarded  as  con- 
stitutmg  an  ''exigency''  under  the  statute,  if  of  such  magnitude  or 
injurious  consequence  to  the  Army  as  to  necessitate  an  immediate 
making  good  of  the  deficiency.^  The  general  rule,  however,  of  the 
statute  in  requiring  a  notice  and  invitation  to  the  pubhc  as  a  pre- 
liminary to  the  awarding  of  a  contract,  is  founded  upon  a  sound  and 
well-considered  public  policy,  and  exceptions  thereto,  especially  in 
time  of  peace,  should  be  recognized  as  admissible  only  where,  if  the 
rule  were  strictly  complied  with,  the  public  interests  would  mani- 
festly be  most  seriously  prejudiced.  E.  37,  J^64,  Apr.  7,  1876;  39, 
527,  May  3,  1878. 

Ill  B.  Section  3709,  R.  S.,  does  not  necessarily^-  preclude  having 
public  work  performed  by  hired  laborers  where  it  is  not  deemed  de- 
sirable to  enter  into  a  formal  agreement  with  a  contractor  for  the 
purpose.  So,  lield,,ihsit  particular  work  capable  of  being  properly 
done  by  hired  day  labor,  may  be  so  done,  instead  of  under  contract 
made  upon  advertisement  and  proposals,  provided  it  is  deemed  to  be 
for  the  public  interest  to  prefer  the  former  mode.  R.  41,  121,  Feb. 
25,  1878. 

Ill  C.  An  advertisement  for  bids  for  certain  apparatus  specifi- 
cally limiting  the  bids  to  a  certain  make  of  apparatus  is  not  for  that 
reason  iUegal.     C.  11397,  Oct.  18,  1901. 

Ill  D.  Specifications  referred  to  in  an  advertisement  for  bids 
should  definitely  describe  all  the  materials  and  work  that  are  to 
enter  into  the  construction  of  the  building  so  that  each  bidder  will 
know  at  the  time  he  bids  just  what  material  and  work  vnll  enter 
into  the  construction  of  the  building  and  not  merely  what  miglit  so 
enter.  Therefore  a  specification  that  required  "pink  Milford  or 
some  other  light-colored  granite  satisfactory  to  the  architects  and 
hoard  of  trustees  ^^  is  insufficient,  and  the  work  should  be  readvertised. 
A  proper  and  sufficient  advertisement  would  be  had  if  a  particular 
granite  was  named  or  if  it  was  stated  that  any  one  of  a  number  of 
kinds  (naming  them)  would  be  accepted,  or  that  any  land  would  be 
accepted  if  it  possessed  certain  qualities  (naming  them)  or  had  the 

1  See  United  States  v.  Speed,  8  Wallace,  83;  Reeside  v.  United  States,  2  Ct.  Cls.,  1; 
Mowry  v.  United  States,  id.,  68;  Stevens  v.  United  States,  id..  95;  Floyd  v.  United 
States,  id.,  429;  Crowell  v.  United  States,  id.,  501;  Baker  v.  United  States,  3  id.,  343; 
Henderson  v.  United  States,  4  id.,  75;  Child  v.  United  States,  id.,  176;  Wentworth 
V.  United  States^  5  id.,  302;  Wilcox  v.  United  States,  id.,  386;  Cobb  v.  United  States, 
7  id.,  470,  and  9  id.,  291;  Thompson  v.  United  States,  id.,  187;  McKee  v.  United  States 
12  id.,  504;  Moran  v.  United  States,  39  id.,  486;  III  Comp.  Dec,  175. 

2  See  G.  O.  10  of  1879,  sees.  22-25,  pp.  14  and  15;  do.  72,  id.  p.  52;  do.  40  of  1880,  p.  58. 


? 


CONTRACTS  rv  A.  ^05 

iialities  possessed  by  a  particular  kind  of  granite    (naming  it).* 

.  U16,  June  14,  1895. 

IV  A.  The  contingent  fund  allotted  to  the  various  geographical 
departments  comes  within  the  terms  of  the  act  of  March  2,  1901  (31 
Stat.  905),  providing  that  ''hereafter,  except  in  case  of  emergency 
or  where  it  is  impracticable  to  secure  competition,  the  purchase  of 
all  supplies  for  the  use  of  the  various  departments  and  posts  of  the 
Army  and  of  the  branches  of  the  Army  service  shall  only  be  made 
after  advertisement,"  and  such  fund  can  be  expended  only  after 
advertisement  except  in  case  of  emergency.  O.  11935,  Jan.  24,  1902. 
The  above  act,  however,  does  not  apply  to  the  engagement  of  serv- 
ices.    C.  11116,  Oct.  16,  1901. 

IV  B.  Section  4  of  the  act  of  June  17,  1910  (36  Stat.  531),  mak- 
ing the  appropriations  for  the  le^slative,  executive,  and  judicial 
expenses  of  the  Government,  provided  that  ''hereafter  all  supplies 
of  fuel,  ice,  stationery,  and  other  miscellaneous  supplies  for  the  exec- 
utive departments  and  other  Government  establishments  in  Wash- 
ington, when  the  public  exigencies  do  not  require  the  immediate 
delivery  of  the  articles,  shall  be  advertised  and  contracted  for  by 
the  Secretary  of  the  Treasury  instead  of  by  the  several  departments 
and  estabHshments."  Held,  that  tliis  legislation  was  not  intended 
to  require  supplies  for  the  Army  at  large,  appropriated  for  in  the 
Army  appropriation  act,  to  be  included  under  the  contract  made  by 
the  Secretary  of  the  Treasury,  and  that  therefore  supplies  for  the 
Sandy  Hook  Proving  Ground  in  New  Jersey  are  not  covered  by 
contracts  made  by  the  Secretary  of  the  Treasury.  C.  27154,  Aug. 
11,  1910.  Held,  also,  that  under  the  same  act  supplies  for  the 
United  States  engineer  office,  Washington,  D.  C,  and  the  engineer 
depot  and  engineer  school  at  Washington  Barracks,  D.  C,  are  not 
covered  by  the  contract  made  by  the  Secretary  of  the  Treasury. 

C.  27154,  Jan.  10,  1911.     But  held,  that  under  the  same  act  sup- 
plies for  the  office  of  Public  Buildings  and  Grounds,  Washington, 

D.  C,  are  included  in  the  contract  made  by  the  Secretary  of  the 
Treasury.     0.  26982,  July  7,  1910. 

V  A.  Section  3828,  K.  S.,  provides  that  "no  advertisement,  notice, 
or  proposal  for  any  executive  department  of  the  Government,  or  for 
any  bureau  thereof,  or  for  any  office  therewith  connected,  shall  be 
published  in  any  newspaper  whatever,  except  in  pursuance  of  a 
written  authority  for  such  publication  from  the  head  of  such  depart- 
ment; and  no  bill  for  any  such  advertising  or  publication  shall  be 
paid  unless  there  be  presented  with  such  bill  a  copy  of  such  written 

^  In  1905  the  Auditor  for  the  War  Department  called  attention  to  the  following  para- 
graph in  the  form  of  advertisement  for  bida  for  supplies  for  the  Signal  Corps:  "Orders 
will  probably  be  made  on  the  accepted  bidders  for  the  estimated  quantity;  but  as  the 
actual  requirements  can  not  be  determined  in  advance,  the  right  is  reserved  of  mak- 
ing orders  at  the  prices  at  which  the  awards  may  be  made  for  any  quantity  more,  or 
to  make  no  order  at  all  for  any  item  that  may  not  be  needed,"  objecting  to  the  latter 
part  of  the  paragraph  as  destroying  the  definite  character  of  the  advertisement,  and 
'Stated  that  in  some  cases  the  quantities  purchased  had  been  six  to  nine  times  the 
quantities  named  in  the  advertisement  and  proposals.  Recommended  b)^  the  Judge 
Advocate  General  that  the  form  be  changed  to  read  as  follows:  "Orders  will  probably 
be  made  on  the  accepted  bidders  for  the  estimated  q^uantity ;  but  as  the  actual  require- 
ments can  not  be  determined  in  advance,  the  United  States  sliall  have  the  right  of 
making  orders  at  the  prices  at  which  the  awards  may  be  made  for  additional  sup- 
plies, provided  that  the  additional  orders  shall  not  exceed  twice  the  estimated  quan- 
tity."    C.  18164y  July  6, 1905. 


296  CONTRACTS  V  B. 

authority."  Held,  that  the  written  authority  recfuired  must  precede 
the  publication.  A  subsequent  approval  or  ratification  will  not  be 
sufficient.!     C.  17990,  May  18,  1905. 

VB.  The  act  of  March  1,  1893  (27  Stat.  509),  creating  the  Cali- 
fornia Debris  Commission,  requires  notices  of  petitions  for  hydraulic 
mining  to  be  inserted  by  the  '  'commission  in  some  newspaper  or  news- 
papers of  general  circulation  in  the  communities  interested."  Held, 
that  the  discretion  of  selecting  the  newspapers  is  vested  in  the  com- 
mission, and  that  section  3828,  R.  S.,  which  requires  prior  written 
authority  of  the  head  of  the  department,  does  not  apply.^  C.  17209, 
Dec.  7,  1904. 

VI  A.  In  general,  under  section  3709,  R.  S.,  the  duty  of  advertising 
is  a  legal  obhgation  imposed  by  statute,  not  a  mere  facility  for  the 
convenience  of  Government  officers  to  enable  them  to  gain  informa- 
tion so  that  the  United  States  may  supply  its  wants  in  the  most  con- 
venient manner  and  at  the  lowest  cost  regardless  of  the  bids.^  The 
main  object  of  advertising  is  to  induce  a  free  and  open  competition 
for  the  contracts  of  the  Government  and  thus  to  protect  the  United 
States  from  fraudulent  combinations  and  collusive  preferences  in  its 
business  transactions.*  At  the  same  time  the  advertisement,  in 
inviting  proposals  from  the  public,  is  properly  to  be  viewed  as  a 

1  See  V  Comp.  Dec,  167;  XIV  id.  747,  and  par.  508,  A.  R.,  1910.  In  16  Op.  Atty. 
Gen.,  616,  it  was  held  that  the  provision  of  sec.  3828,  R,  S.,  extends  to  all  officers  con- 
nected with  any  executive  department,  no  matter  where  they  may  be  situated,  and 
not  merely  to  such  officers  as  are  at  the  seat  of  government.  See,  also,  U.  S.  i;.  Odeneal 
(10  Fed.  Rep.,  616;  XIII  Comp.  Dec,  446). 

2  XII  Comp.  Dec,  119.    See,  also,  XIII  idem,  310. 

2  See  6  Op.  Atty.  Gen.,  406;  10  id.,  28;  also  opinion  of  the  Solicitor  General  of  March 
20,  1876  (15  Op.  Atty.  Gen.,  538),  wherein,  in  holding  contracts  made  without  adver- 
tising to  be  not  binding  on  the  United  States,  he  dissents  from  the  opinion  of  Atty.  Gen. 
Bates,  in  10  Ops.,  416,  to  the  effect  that  while  an  absence  of  the  prescribed  adver- 
tisement will  render  illegal  and  inoperative  an  unexecuted  contract,  the  Government 
can  not,  on  account  of  such  omission,  rescind,  to  the  damage  of  a  contractor,  a  contract 
entered  into  by  him  in  good  faith  and  partly  performed.  In  a  later  opinion  of  Apr.  27, 
1877  (15  Op.,  235),  the  Attorney  General  refers  to  the  question,  whether  the  provision 
of  section  3709,  R.  S.,  requiring  that  contracts  in  general  shall  be  preceded  by  adver- 
tisement, is  mandatory  or  only  directory,  as  one  which  has  been  much  discussed 
(see,  for  example,  the  reference  to  this  question  in  Fowler  v.  United  States,  3  Ct.  Cls., 
47),  but  is  not  rej^uired  to  be  decided  in  that  opinion.  In  Schneider  v.  U.  S.,  19  Ct. 
Cls.,  547,  551,  it  is  held  that  in  the  absence  of  any  exigency  in  fact  or  one  determined 
to  exist  this  provision  is  mandatory,  and  a  contract  made  in  violation  of  it  is  void. 
Whatever  may  be  the  true  construction  of  this  section,  it  is  clear  that  no  officer  of  the 
Army,  in  the  absence  of  express  authority  to  do  so  from  the  Secretary  of  War,  can  be 
justified  in  omitting  to  comply  with  the  provision  in  regard.to  advertising.  However, 
it  was  held  in  Mudgett  v.  United  States  (9  Ct.  Cls.,  467),  that  where  a  properly  executed 
contract  had  been  mutually  performed  and  the  contractor  sued  to  recover  a  part  of  his 
compensation,  it  was  not  a  defense  that  the  contract  was  illegal  because  not  founded 
upon  advertisement  and  proposals,  the  price  being  reasonable.  See  also  Salomon  v. 
United  States  (19  Wall.,  17.)  In  Schneider  v.  United  States  (19  Ct.  Cls.,  547),  where 
a  contract  modifying  another  contract  had  been  made  without  advertisement  and  the 
contractor  had  subjected  himself  to  expense  in  preparing  to  carry  out  the  terms  of  the 
modified  contract,  but  before  actually  furnishing  material  to  the  United  States  under 
the  modified  contract,  the  modified  contract  was  rescinded  by  the  United  States. 
Held,  that  the  modified  contract  was  void,  for  the  reason  that  there  had  been  no  adver- 
tisement, and  that  the  contractor  could  not  recover  for  his  outlay  and  prospective 
profits  under  the  modified  contract. 

*  See,  Harvey  v.  United  States  (8  Ct.  Cls.,  506).  In  regard  to  a  statute  (similar  to 
sec.  3709)  governing  the  Post  Office  Department,  the  Supreme  Court,  in  Garfielde  v. 
United  States  (3  Otto.  246),  says:  "The  object  of  the  statute  was  to  secure  notice, 
*  *  *  that  bidders  might  compete,  that  favoritism  should  be  prevented,  that 
efficiency  and  economy  in  the  service  should  be  obtained." 


CONTRACTS  VI  A.  297 

fledge  on  the  part  of  the  United  States  that  the  contract  will,  as  a 
general  rule,  be  awarded  to  the  lowest  bidder,  provided  he  is  a 
responsible  person  and  his  bid  is  a  reasonable  one,  and  provided,  of 
course,  he  complies  with  the  existing  regulations — as  to  bond,  etc.* 
The  reservation  not  unfrequentl}^  added  in  the  advertisement,  that 
*'the  United  States  reserves  the  right  to  reject  anv  or  all  proposals," 
is  simply  precautionary,  and  should  not  be,  ana  is  not,  in  general 
taken  advantage  of  except  where  the  lowest  bidder  fails  to  meet  the 
legal  and  proper  conditions.^  R.  39,  4^6,  Feb.  12, 1878;  41,  US,  Feh. 
21,  1878;  C.  18153,  June  12,  1905.  So,  also,  where  the  act  of  March 
2,  1901  (31  Stat.  905),  provided  that  supplies  for  the  Army  except  as 
therein  specified,  should  be  purchased  ''after  advertisement,  and 
shall  be  purchased  where  the  same  can  be  purchased  the  cheapest, 
quality  and  cost  of  transportation  and  the  mterests  of  the  Govern- 
ment considered,"  held  that  the  statute  does  not  require  the  award 
to  be  made  to  the  lowest  bidder,  except  where  he  can  satisfy  the 
department  that  he  can  furnish  articles  of  the  required  quality  and 
within  the  required  time;  if  the  facts  leave  a  reasonable  doubt  on 
this  point  the  award  to  the  lowest  bidder  would  not  be  in  tlie  inter- 
ests of  the  Government,  and  he  may  legally  be  passed  over  and  an 
award  made  to  the  next  lowest  bidder  who  can  meet  these  require- 
ments. C.  20276,  Aug.  22,  1906.  Where  several  bids  are  made  in 
response  to  the  advertisement,  the  Secretary  of  War  may,  for  cause, 
refuse  to  authorize  a  contract  with  any  of  them.  In  accepting  a  bid 
he  must  be  governed  by  a  consideration  for  the  pubUc  interests.  If 
the  lowest  bidder,  for  example,  is  not  furnished  with  the  proper  facili- 
ties to  perform  the  proposed  work — has  not  an  available  plant.^    (P. 

^  See,  regulations  in  regard  to  contracts,  published  in  General  Orders  10,  Headquar- 
ters of  Army  of  1879,  repeated  and  amended  in  General  Order  72  of  same  year  and 
General  Order  40  of  1880,  now  incorporated  in  Articles  LI  and  LII,  Army  Regulations 
of  1908.  . 

2  See,  para^ph  553,  Army  Regulations  of  1910,  as  follows:  "Except  in  rare  cases, 
when  the  Umted  States  elects  to  exercise  the  right  to  reject  proposals,  awards  will  be 
made  to  the  lowest  responsible  bidder,  provided  that  his  bid  is  reasonable,  and  that 
it  is  in  the  interest  of  the  Government  to  accept  it." 

^  Paragraph  555,  Army  Regulations  of  1910,  is  as  follows:  "When  no  guaranty  is 
required,  bidders  must,  if  called  upon  by  the  awarding  officer,  furnish  satisfactory 
evidence,  before  the  award  is  made,  of  their  ability  to  carry  their  proposals  into  effect. ' ' 

In  General  Orders  167,  War  Department,  October  10, 1905,  the  following  instructions 
were  issued  by  the  Secretary  of  War  for  the  guidance  of  officers  charged  with  the 
procurement  of  supplies : 

With  a  view  to  a  thorough  enforcement  of  the  laws  which  require  that  all  supplies 
for  the  Army  shall  be  purchased  "where  the  same  can  be  purchased  the  cheapest, 
quality  and  cost  of  transportation  and  the  interests  of  the  Government  considered,"  and 
that  "such  contracts  shall  be  made  with  the  lowest  responsible  bidders,"  the  following 
instructions  are  published  for  the  information  and  guidance  of  officers  charged  with  the 
procurement  of  supplies  for  the  several  branches  of  thQ  military  establishment,  and 
strict  compliance  therewith  is  enjoined,  viz: 

1.  Advertisements  for  supplies  should  contain  the  instruction  to  bidders,  who  are 
not  manufacturers  of  the  goods  called  for,  to  submit  the  name  of  the  manufacturer 
from  whom  such  goods  are  to  be  obtained,  unless  it  be  manifestly  impracticable  to 
furnish  this  information. 

2.  Lack  of  commercial  standing  on  the  part  of  the  bidder  or  inadequate  facilitias  or 
plant  on  the  part  of  the  manufacturer  will  constitute  good  and  sufficient  grounds  for  the 
rejection  of  bids.  Abnormally  low  bids  should  be  subjected  to  the  strictest  scrutiny 
and  comparison  with  prevailing  market  rates. 

3.  All  bids  received  from  contractors  who  have  failed  unjustifiably  to  fill  former 
contracts  with  the  Government  shall  be  rejected. 


298  CONTRACTS  VI  B. 

58,  26,  Feb.  10, 1893)  or  if  (the  bids  being  for  a  boiler)  the  article  cov- 
ered by  the  lowest  bid  does  not  represent  as  high  a  grade  of  efficiency 
as  a  higher  bid,  the  article  covered  by  the  higher  bid  being  such 
that,  in  the  opinion  of  the  contracting  officer,  it  would  in  a  compara- 
tively short  time  save  its  additional  cost  in  the  saving  of  fuel.  O. 
25493,  Aug.  28,  1909,  the  lowest  bid  may  be  passed  over  for  the  next 
higher  provided  the  latter  is  satisfactory. 

VI  B.  An  act  of  Congress  of  June  30,  1886  (24  Stat.  96),  appro- 
priated a  sum  of  money  ^  for  printing  division  and  department  orders 
and  reports.  *  *  *  Provided,  that  no  part  of  this  appropriation 
shall  be  expended  on  printing  unless  the  same  shall  be  done  dj  con- 
tract after  due  notice  and  competition."  Held,  that  all  such  printing 
should,  after  advertisement  (due  notice),  be  given  to  the  lowest 
responsible  bidder  who  is  a  practical  printer  and  who  is  in  a  position 
to  do  printing  unaided  by  the  Government.  It  would  not  be  a  com- 
pliance with  the  statute  to  purchase  paper,  ink,  type,  etc.,  and  let  by 
contract  only  the  mere  printing.     P.  61,  334,  Sept.  I4,  1893. 

VI  C.  The  act  of  April  10,  1878  (20  Stat.  36),  as  amended  by  the 
act  of  March  3,  1883  (22  Stat.  488),  authorizes  the  Secretary  of  War 
to  make  rules  and  regulations  as  to  bids,  bonds,  and  contracts  under 
the  War  Department  and  to  require  a  written  guaranty  providing 
that  in  event  of  default  of  the  bidder  to  enter  into  the  contract  and 
give  sufficient  bond  the  proper  ''officer  shall  proceed  to  contract 
with  some  other  person  *  *  *  and  shall  forthwith  cause  the 
difference  *  *  *  to  be  charged  against  the  bidder  and  his 
guarantor."  Section  3  of  the  river  and  harbor  act  of  August  1 1 ,  1888, 
(25  Stat.  423),  provides  that  "contracts  for  improvement  of  rivers  and 
harbors  shall  be  made  with  the  lowest  responsible  bidders."  Held 
that  these  statutes  should  be  construed  together,  so  that  in  a  case 
where  a  contract  had  been  awarded  to  the  lowest  responsible  bidder 
in  compliance  with  the  act  of  1888  and  such  bidder  had  defaulted 
in  entering  into  the  contract,  the  act  of  1878  as  amended  would  come 
into  play  and  authorize  a  contract  "with  some  other  person,"  the 
difference  to  be  charged  to  the  defaulting  bidder.  These  acts  do  not 
require  the  Government  to  let  a  contract  to  the  next  lowest  bidder 
after  the  lowest  bidder  has  declined  to  enter  into  the  contract.  C. 
22567,  Feh.  17,  1908. 

VI  D.  The  Army  appropriation  act  of  July  5,  1884  (23  Stat.  109), 
provided  that,  in  purchasin^supplies  for  the  Army  under  the  Quar- 
termaster and  Commissary  Departments,  the  award  should  be  made 
to  the  ''lowest  responsible  bidder."  ^  When  the  award  for  furnishing 
such  supplies  was  not  made  to  the  lowest  bidder,  though  entirely 
responsible  and  competent,  but  a  higher  bidder  was  preferred,  lield 
that  the  contract  was  void.^    P.  18,  265,  Aug.  5,  1887. 

VI  E.  Where  an  advertisement  inviting  proposals  for  furnishing 
supplies  specified  that  the  proposals  would  be  opened  at  a  certain 
hour,  lieM,  that  ordinarily  a  bid  received  after  the  hour  named 
should  not  be  considered.  P.  Ji7,  403,  June  6,  1891.  But  if  it  satis- 
factorily appears  that  a  bid,  received  after  the  hour  for  opening  bids, 

^  Par.  553  of  Army  Regulations,  1910,  relating  to  the  purchase  of  supplies,  is  as 
follows:  "Except  in  rare  cases,  when  the  United  States  elects  to  exercise  the  right  to 
reject  proposals,  awards  will  be  made  to  the  lowest  responsible  bidder,  provided  that 
his  bid  is  reasonable  and  that  it  is  in  the  interest  of  the  Government  to  accept  it." 


CONTBACTS  VI   E.  299 

had  boon  duly  mailed  *  or  a  mosseiigor  had  started  with  it,  in  ample 
time  to  rearh  its  destination  before  the  o])ening  of  bids,  that  its  fail- 
ure to  arrive  on  time  is  in  no  manner  due  to  the  neglect  of  the  bidder, 
and  above  all  that  no  unfair  advantajijo  has  accrued  to  the  tardv  bid- 
der by  reason  of  liis  delay,*  the  delayed  bid  should  bo  considered.^ 
(\  20AIG,  Sept.  18,  1906;  21S91,  Ajyr.  16  and  July  30,  1907;  22376, 
Vov.  20,  1907;  23888,  Sept.  25,  1908;  24914,  May  8,  1909;  25135, 
June  19,  1909;  26397,  Mar.  24,  1910;  28204,  Apr.  26,  1911.  So 
hfld  whore  a  bid  was  received  three  days  late.  0.  16342,  May  18, 
1904.  So  held,  also,  where  a  bid  was  mailed  in  ample  time  but  was 
rotunied  for  want  of  sufRcient  stanips,  and  was  then  remailed  without 
opening  it,  consideration  being  given  to  the  fact  that  in  the  usual 
coui-se  of  dealings  between  private  parties  the  addressee  would  pay 
the  triflin<]j  amount  of  postage.  C.  27681,  Jan.  11,  1911.  So,  also, 
where  a  bidder  finding  the  time  too  short  for  his  bid  (which  had  been 
mailed)  to  reach  the  officer  charged  with  opening  the  bids,  telq- 
jxraphed  his  prices,  held,  that  as  the  bid  was  deposited  in  the  mail 
before  the  opening,  and  the  bidder  acted  in  good  faith  and  obtained 
no  unfair  advantage  over  other  bidders,  it  was  recommended  the 
requirements  of  the  Army  Regulations  that  no  proposal  received 
after  the  time  of  opening  will  be  received,  be  waived.  C.  25208, 
June  28,  1909;  26005,  Dec.  30,  1909.  Where  the  messenger  carrying 
the  bid  missed  the  train  and  wired  to  the  officer  in  charge  of  the 
opening  of  bids  that  he  would  be  on  next  train,  and  the  circumstances 
showed  that  the  bidder  had  obtained  no  unfair  advantage  by  the 
delay,  heU,  the  bid  should  be  received.  C.  17828,  Apr.  8,  1905. 
Where  bids  for  the  purchase  of  condemned  ordnance  were  required 
to  be  accompanied  by  a  check  for  the  amount  of  the  bid,  and  the 
sealed  envelope  supposed  to  contain  one  bid  on  being  opened  was 
found  to  contain  only  the  check,  and  the  bidder  subsequently  handed 

^  Par.  547,  Army  Regulations,  1910,  has  been  amended  by  par.  2,  General  Orders, 
No.  99,  War  Department,  July  22,  1911,  to  read  as  follows:  "Proposals  received 
prior  to  the  time  of  opening  will  be  securely  kept.  The  officer  whose  duty  it  is  to 
open  them  will  decide  when  that  time  has  arrived.  No  proposal  received  thereafter 
will  be  considered,  except  that  when  a  proposal  arrives  by  mail  after  the  time  fixed 
for  the  opening,  but  before  the  award  is  made,  and  it  is  clearly  shown  that  the  non- 
arrival  on  time  was  due  solely  to  delay  in  the  mails  for  which  the  bidder  was  not 
responsible,  such  proposal  will  be  received  and  considered."  All  the  opinions  cited 
in  the  above  paragraph  antedated  the  above  amendment  to  par.  547,  Army  Regulations. 

2  The  syllabus  in  21  Op.  Atty.  Gen.  546,  is  as  follows:  "There  is  nothing  in  the  acts 
of  January  27  and  April  21, 1894,  amending  section  3709  of  the  Revised  Statutes,  incon- 
sistent with  the  legal  right  of  the  board  of  award  of  the  Department  of  Agriculture  to 
consider  any  bid  received  by  them  through  the  mail  after  the  hour  of  2  O'clock  p.  m. 

"The  designation  of  2  o'clock  p.  m.  'for  the  opening  of  all  such  proposals  in  each 
department '  means  only  that  such  proposals  shall  not  be  opened  before  2  o'clock  p.  m. 

"A  proposal  received  after  that  hour,  under  circumstances  which  warranted  the 
belief  that  it  had  been  prepared  and  submitted  in  the  light  of  the  proposals  submitted 
by  other  bidders,  which  had  been  already  opened  and  made  known,  should  not  be 
received  or  entertained;  but  a  proposal  received  under  conditions  which  precluded 
the  possibility  of  such  unfairness  should  not  be  rejected  because  it  happens  to  be 
received  by  the  board  of  award  a  few  minutes  after  2  o'clock  p.  m." 

^  Even  though  a  bid  has  failed  to  reach  its  destination  through  the  fault  of  the  bid- 
der a  contract  -with  such  bidder  without  further  advertisement  would  not  be  illegal, 
for  such  action  would  be  equivalent  to  a  rejection  of  all  bids,  and  if  all  bids  are  rejected 
further  advertising  is  unnecessary,  and  a  contract  could  then  be  entered  into  with  the 
tardy  bidder.  Such  a  course,  however,  should  not  be  pursued  if  it  would  be  unfair  to 
other  bidders  or  would  involve  a  breach  of  the  implied  pledge  on  the  part  of  the 
United  States  that  the  contract  will  as  a  general  rule  be  awarded  to  the  lowest  bidder 
provided  he  is  a  responsible  person  and  his  bid  is  a  reasonable  one,  etc. 


300  CONTRACTS  VI  F. 

in  the  bid  for  the  exact  amount  of  the  check,  and  it  satisfactorily 
appeared  that  the  omission  to  inclose  the  bid  was  accidental  and  that 
the  bidder  gained  no  advantage  by  the  accident,  held,  that  the  bid 
could  legally  be  considered.  C.  11609,  Nov.  16,  1901.  A  clause  in 
the  advertisement  for  bids  providing  that  ''no  bids  received  after 
the  time  set  for  opening  of  proposals  will  be  considered"  will  not 
prevent  consideration  of  the  bid  if  the  circumstances  otherwise  excuse 
the  delay.  C.  7653,  Feb.  7, 1 900.  But  where  a  bid  was  mailed  so  that 
it  had  only  a  narrow  margin  of  time  to  enable  it  to  reach  its  destina- 
tion before  the  hour  for  ojpening  bids,  and  the  envelope  was  not 
marked  so  as  to  indicate  the  nature  of  its  contents  as  required  by 
instructions  to  bidders,  and  the  bid  did  not  reach  its  destination  in 
time,  lield,  that  it  should  not  be  considered.     G.  210^7,  Feb.  4,  1907. 

VI  F.  Proposals  were  invited  for  construction  of  six  locks  and  dams 
on  the  Monongahela  River  and  the  specifications  provided  as  follows : 
"Bids  will  be  received  for  the  lock  and  dam  complete  at  any  one  site, 
or  at  two  or  more  sites,  or  at  all  six  sites,  and  if  accepted  contracts  will 
be  awarded  for  each  site  separately  or  for  two  or  more  sites,  or  a  single 
contract  will  be  awarded  for  the  whole  improvement  at  the  six  sites  as 
may  appear  most  economical  and  advantageous  to  the  United  States." 
One  of  the  bidders  in  a  letter  attached  to  his  proposal  offered,  if 
awarded  contracts  for  three  of  the  locks  and  dams,  to  accept  at  a 
reduction  of  3  per  cent  on  the  amount  proposed  for  them  separately; 
if  awarded  four  locks  and  dams,  the  reduction  should  be  4  per  cent, 
and  if  awarded  contracts  for  the  six  locks  and  dams  a  reduction  of  5 
per  cent  could  be  made.  Held  that  the  offer  made  in  this  letter  was 
responsive  to  the  specifications  calling  for  proposals  and  should  be 
treated  as  a  part  of  the  proposal.     C.  3488,  Sept.  7,  1897. 

VI G.  Where  a  bidder  failed  to  sign  his  bid  and  attach  the  necessary 
internal-revenue  stamps  to  the  bid,  but  it  was  evident  from  the  fact 
of  a  formal  execution  of  an  accompanying  guaranty  that  it  was 
intended  to  sign  the  bid  and  attach  the  stamps.     Held,  the  bid  could 

Eroperly  be  signed  and  the  stamps  attached  after  the  opening  of  the 
ids.  C.  10361,  May  4,  1901;  22874,  ^(^r.  12,^  1908.  So,  where  a  bid 
was  not  signed  but  before  the  opening  of  the  bids  a  letter  was  received 
from  the  bidder  stating  that  the  bidder  was  not  sure  whether  the  bid 
had  been  signed  before  mailing  it,  and  stating  that  the  bidder  would 
stand  by  it,  and  the  accompanying  guaranty  was  properly  executed. 
Held,  the  bidder  was  bound  under  the  terms  of  the  guaranty.  C, 
23878,  Sept.  21,1908. 

VI  H.  Where  a  bidder's  name  was  signed  to  a  bid  by  another  per- 
son. Held  that  verbal  authority  to  sign  the  name  was  sufficient. 
C.  580,  Oct.  29,  1894. 

VI  I.  Where  bids  were  invited  for  furnishing  blue  denim,  the 
specifications  providing  that  ''a  sample  of  not  less  than  20  yards  of 
the  material  which  bidders  propose  to  furnish  must  be  submitted 
prior  to  the  time  fixed  for  the  opening  of  bids,  and  no  samples  will  be 
received  after  the  proposals  are  opened,"  and  the  lowest  bidder 
through  an  oversight  failed  to  furnish  a  sample  at  the  time  of  submit- 
ting his  bid,  but  a  sample  was  offered  within  an  hour  or  two  after  the 
opening  of  bids,  and  where  it  further  appeared  that  the  lowest  bidder 
had  been  furnishing  denim  under  a  prior  contract,  and  that  the 
sample  offered  was  up  to  the  specifications  and  of  the  same  kind  fur- 
nished under  the  previous  contract,  held  that  the  failure  to  file  a 


CONTRACTS  VI   J   1.  301 

sample  before  the  opening  of  bids  was  an  informality  which  could  be 
waived.     C.  25021,  May  26,  1909. 

Bids  were  requested  for  furnishing  file  cases  of  a  certain  make  ''or 
equal,"  and  the  instructions  to  bidders  required  that  samples  of  the 
proposed  equivalent  must  accompany  the  proposal.  Several  bids 
were  not  accompanied  by  samples.  S^eld,  that  the  failure  to  furnish 
samples  was  an  informality  which  might  be  waived,  and  samples 
might  be  called  for  prior  to  making  awards,  as  such  action  would  not 
give  any  opportunity  for  collusion  and  would  not  be  unfair  to  other 
bidders.  In  such  case  the  ^arantors  would  be  bound,  although  the 
bids  had  not  been  accompanied  by  samples.     C.  20196,  Aua.  10, 1906. 

A  clause  in  the  instructions  to  bidders  provided  that  reasonable 
grounds  for  supposing  that  any  bidder  is  interested  in  more  than  one 
bid  will  be  cause  for  rejection  of  aU  bids  in  which  he  is  interested." 
Held,  that  if  any  bidder  is  interested  in  more  than  one  bid  the  con- 
tracting officer  is  not  by  the  above  instruction  required  to  reject  the 
bid,  but  the  clause  in  question  may  be  waived.  C.  19967,  June  26 y 
1906. 

Where  a  bidder  failed  to  attach  a  copy  of  the  specifications  to  his 
bid,  but  the  bid  referred  to  the  specifications  in  sucn  a  way  that  there 
could  be  no  question  that  the  bidder  offered  to  furnish  such  supplies 
as  were  caUed  for  by  the  specifications,  lield,  the  failure  to  attach  a 
copy  of  the  specifications  did  not  affect  the  validity  of  the  bid  and 
might  be  waived.     C.  23552,  July  7,  1908. 

Instructions  to  bidders  required  bidders  to  submit  alternative  bids 
in  respect  to  certain  parts  of  a  buildiag,  depending  on  the  material  to 
be  used.  The  purpose  of  this  requirement  was  to  enable  less  expen- 
sive substitutions  to  be  made  for  the  said  parts  of  the  building  in  case 
the  bids  exceed  the  appropriation.  The  lowest  bidder  failed  to  make 
the  required  alternative  bids,  but  his  bid  was  within  the  appropriation. 
Held,  that  under  the  circumstances  failure  to  submit  alternative  bids 
was  an  informality  which  could  be  waived.  C.  24769,  Apr.  15,  1909. 
So,  lield,  where  bidders  wee  required  to  state  the  unit  prices  for  exca- 
vation, concrete  and  brickwork,  the  purpose  being  to  have  a  basis  for 
settlement  for  any  work  ordered  less  than  or  in  excess  of  that  indi- 
cated on  the  drawings,  and  the  lowest  bidder  failed  to  submit  such 
prices.  C.  24-769,  Apr.  15,  1909.  Also,  where  the  lowest  bidder  for 
certain  dredging  failed  to  state  the  price  for  rock  excavation,  and  it 
appeared  that  the  rock  excavation  was  an  insignificant  part  of  the 
entire  work,  being  less  than  two-tenths  of  1  per  cent,  and  that  the 
difference  between  his  bid  and  the  next  lowest  bid  was  more  than  10 
per  cent,  and  the  lowest  bidder  stated  that  it  was  his  intention  to 
mclude  all  work  under  the  miscellaneous  item  of  his  bid:  Held,  that 
the  informalitv  in  failing  to  bid  on  the  rock  excavation  could  be 
waived.!     C.  28603,  June  26,  1911.  ^ 

Where  proposals  were  invited  in  duplicate  and  the  lowest  bidder 
submitted  only  one  copy:  Held,  the  failure  to  submit  bids  in  duplicate 
was  an  informality  which  could  properly  be  waived.     0.  1557 A,  Bee. 

<v,  laOo. 

VI  J  1.  A  readvertisement  of  work  is  equivalent  to  a  rejection  of  all 
bids  not  theretofore  accepted.     C.  26565,  Apr.  20,  1910. 

VI  J  2.  The  acceptance  of  one  bid  is  a  rejection  of  all  other  bids, 
and  one  of  the  bids  so  rejected  can  not  be  subsequently  accepted  so 

!  See  State  v.  CommiBsioners  of  York  County,  13  Nebraska,  57  (12  N.  W.  816),       < 


302  CONTRACTS   VI   J   3. 

as  to  hold  a  guarantor  of  such  rejected  bid  to  his  guaranty  that 
such  bidder  would  enter  into  a  contract  within  ten  days  after  notice 
of  acceptance  of  his  bid.     G.  8904,  Sept.  6, 1900;  20670,  Nov.  26,  1906. 

VI  J  3.  The  effect  of  a  rejection  of  all  bids  is  to  release  the  guar- 
antors on  all  the  bids,  and  the  guaranties  can  not  be  revived  by  a 
mere  letter  consenting  to  their  revival.  The  only  proper  way  is  to 
have  a  new  set  of  bids  called  for  to  be  accompanied  by  new  guaranties. 
C.  26846,  June  7,  1910. 

VI  J  4.  A  sound  discretion  is  vested  in  the  contracting  officer, 
subject  to  approval  by  higher  authority,  to  determine  under  all  the 
circumstances  of  a  letting  of  a  particular  contract  whether  the 
interests  of  the  United  States  will  be  best  subserved  by  awarding 
the  contract  to  one  bidder  instead  of  to  another,  i.  e.,  whether  in  the 
light  of  all  the  facts  he  is  the  ''lowest  responsible  bidder."  Held,  on 
the  above  principles  that  where  a  contractor  attempts  to  deliver 
inferior  articles  and  causes  delay  by  such  attempts,  and  having  been 
balked  in  his  efforts  by  the  vigilance  of  the  contracting  officer  and 
having  thereupon  made  charges  against  the  contracting  officer 
which  on  investigation  were  found  to  be  false,  these  facts  would 
justify  the  award  being  made  to  the  next  lowest  bidder  on  the  ground 
that  his  bid  is  that  of  the  ''lowest  responsible  bidder."  0.  18166, 
June  16,  1905;  28861,  Aug.  16,  1911. 

The  United  States  may  properly  reject  a  bid  in  a  case  oi  fraud,  as 
where  the  lowest  bidder  is  m  collusion  with  other  bidders  or  with  the 
representative  of  the  United  States  to  impose  a  high  price  upon  the 
Government.  In  such  a  case  ihe  bids  of  all  bidders  concerned  in 
the  fraud  may  properly  be  rejected  even  in  the  absence  of  a  regula- 
tion or  statute  on  the  subject.  R.,  37,^  664,  ^(^V  ^4,  1876.  So, 
also,  the  bid  of  a  contractor  who  had  previously  conspired  to  defraud 
the  United  States  {C.  7134,  Oct.  5,  1899)  or  of  a  firm  one  member  of 
which  conspired  to  defraud  the  United  States  {C.  8606,  July  13, 1900) ; 
or  of  an  individual  who  was  a  member  of  a  firm  one  member  of 
which  had  been  debarred  from  bidding  on  account  of  collusion,  the 
circumstances  being  such  as  to  make  it  certain  that  the  bid  was 
not  a  honafide  individual  bid,  but  would  innure  to  the  benefit  of  the 
firm.  C.  13485,  Feb.  10,  1903,  may  properly  be  rejected.  But  the 
mere  fact  that  a  bidder.  A,  states  that  certain  supplies  on  which  he 
has  bid  will,  be  made  by  a  certain  firm,  the  senior  member  of  which, 
B,  had  been  disqualified  as  a  bidder  sometime  before  by  reason  of  his 
implication  in  a  conspiracy  to  stifle  coropetition,  is  not  sufficient  to 
justify  rejection  of  A's  bid.     C.  23552,  July  7,  1908. 

^  One  of  the  bids  for  furnishing  shoes  was  submitted  by  A  as  an  mdi 
vidual.  A  was  in  fact  the  vice  president  of  a  large  shoe  company 
and  stated  in  his  bid  that  in  case  he  was  awarded  the  contract  th 
said  shoe  company  would  manufacture  the  shoes.  A's  bid  was  for 
''all  or  none."  Aiiother  of  the  bids  was  submitted  by  B  as  an  indi- 
vidual.^ B  was  in  fact  a  director  in  the  same  shoe  company,  and 
stated  in  his  bid  that  in  case  the  contract  was  awarded  to  him  said 
shoe  company  would  manufacture  the  shoes.  B's  bid  was  a  graduated 
one.  The  prices  named  in  the  bids  of  both  A  and  B  were  very  low. 
A  protesting  bidder  charged  that  the  two  bids  were  really  submitted 
on  behalf  of  the  shoe  company,  so  that  if  the  bid  that  stipulated  for 
"all  or  none"  of  the  work  was  rejected  the  company  would  get  at 
least  a  part  of  the  award  under  the  other  bid.     Held  that  even  if  the 


o 

i 


CONTRACTS   VI   J   5.  303 

charges  were  true  the  facts  would  not  constitute  a  fraud  on  the  United 
States,  and  would  not  justify  the  rejection  of  the  bids.  C.  27496, 
NmK  16,  1910. 

VI  J  5.  Section  3  of  General  Order  167,  War  Department,  Octo- 
ber 10,  1905,  directs  that  "all  bids  received  from  contractors  who 
have  failed  unjustifiably  to  fiU  former  contracts  with  the  Government 
shall  be  rejected."  Held  that  where  a  company  of  high  standing  in 
the  business  community  once  had  declined  to  enter  into  a  contract 
on  the  ground  that  it  had  misunderstood  a  certain  phase  of  the  Gov- 
ernment's proposal  and  in  another  instance  had  failed  to  deliver 
shingles  and  lumber  at  Honolulu  within  the  time  specified  in  the  con- 
tract, the  company  could  not  be  said  to  ''have  failed  unjustifiably" 
to  fill  its  former  contracts.  C.  29175,  Oct.  26,  1911.  Also  held  that 
under  the  above  section  of  General  Order  167,  War  Department,  1905, 
it  is  questionable  whether  an  attempt  to  deliver  inferior  goods  could 
properly  be  regarded  as  an  unjustifiable  failure  to  fill  a  former  con- 
tract.    C.  28861,  Aug.  16,  1911. 

VIJ  6.  A  clause  in  the  instructions  to  bidders  provided  that  ''rea- 
sonable grounds  for  supposing  that  any  bidder  is  interested  in  more 
than  one  bid  will  be  cause  for  rejection  of  aU  the  bids  in  which  he  is 
interested."  Held,  that  the  interest  referred  to  was  an  interest  as  a 
bidder,  not  as  a  manufacturer  or  seUer  of  supplies  to  a  bidder,  and  that 
a  manufacturer  who  has  quoted  prices  on  nis  specialty  to  one  of  the 
bidders  is  not  thereby  disqualified  from  himself  submitting  a  direct 
bid  for  the  same  article.     C.  19967,  June  26,  1906. 

VI  J  7.  TVTiere,  after  a  contract  for  quartermaster  stores  had  been 
duly  subscribed  and  entered  into  by  and  between  the  lowest  bidder 
and  the  proper  official  representative  of  the  Government,  it  was  ascer- 
tained that  the  former  had  failed  fuUy  to  perform  a  certain  contract 
sometime  previously  made  between  himself  and  the  United  States, 
lield  that  this  fact  could  not  authorize  the  Secretary  of  War  to  cancel 
the  contract  thus  formally  executed  and  enter  into  a  new  contract 
with  another  party.^     R.  41,  258,  June  10,  1878. 

VI  K.  A  bidder  is  not  entitled  to  be  furnished  by  the  War  Depart- 
ment or  any  of  its  officers  with  the  prices  of  other  bidders.  A  bidder 
having  had  the  privilege  of  being  present  at  the  opening  of  the  bids 
and  making  such  memoranda  as  he  wished  has  been  accorded  every 
right  which  he  can  demand  from  the  War  Department,  and  it  would 
not  be  proper  to  employ  government  labor  in  furnishing  the  desired 
prices.  A  copy  of  any  bid  may,  however,  be  obtained  from  the 
returns  office  of  the  Interior  Department  under  the  provisions  of 
section  515,  R.  S.     C.  26895,  June  18,  1910. 

VI  L.  Where  a  bidder  offers  to  furnish  supplies  or  render  services  at 
a  different  place  from  that  stated  in  the  advertisement,  however  con- 
venient the  place  named  may  in  fact  be  to  the  military  authorities 
(,R.  39,  425,  Feb.  12,  1878;  41,  US,  Feb.  21,  1878);  or  at  a  time 
different  by  five  months  from  that  stated  in  the  advertisement  (P.  56, 

^  In  G.  O.  167,  W.  D.,  Oct.  10,  1905,  the  Secretary  of  War  directed  that  all  bids 
received  from  contractors  who  had  failed  unjustifiably  to  fill  former  contracts  with  the 
Government  should  be  rejected.  (See  28  Op.  Atty.  Gen.,  389,  to  the  effect  that  if  a 
bidder  had  previously  been  in  default  the  bid  may  be  rejected,  but  held  fiu-ther,  that 
an  adjudication  that  a  person  or  contractor  is  a  party  to  an  unlawful  trust  or  monopoly 
from  which  decree  an  appeal  has  been  taken  is  not  sufiicient  to  exclude  such  person 
or  corporation  from  competition  in  the  sale  of  supplies  to  the  Government.  (See  Cir. 
76,  W.  D.,  Nov.  29,  1910.) 


304  CONTRACTS     VI   M. 

856,  Nov.  18,  1892) ;  or  in  quantity  different  from  than  that  stated  in 
the  advertisement  {E.  39,  J^25,  Feb.  12, 1878),  the  variance  is  material, 
and  such  a  bid  should  not  be  entertained ;  to  let  a  contract  on  such  a 
bid  would  be  in  effect  to  make  a  contract  without  advertising.^  So, 
where  bids  were  invited  for  supplying  lumber  at  some  port  of  the 
Pacific  coast  accessible  to  vessels  of  deep  draft,  the  purpose  of  the 
Government  being  to  subsequently  transport  the  lumber  to  Manila, 
and  a  bid  was  received  to  supply  the  lumber  at  Manila,  held  that  such 
a  bid  could  not  be  considered,  as  it  was  not  responsive  to  the  adver- 
tisement.    C.  260U,  Jan.  10,  1910. 

Bids  were  invited  for  a  ''steel  observation  tower."  One  of  the  bids 
was  for  a  ''concrete  observation  tower,"  and  a  contract  was  proposed 
to  be  entered  into  for  one  of  concrete.  Held  that  such  a  contract 
would  be  without  competition  such  as  contemplated  by  section  3709, 
R.  S.  ^  G.  20301,  Aug.  29,  1906. 

A  bid  for  the  construction  of  a  tank  and  trestle  purported  to  be 
"subject  to  all  the  conditions  and  requirements"  of  the  advertise- 
ment and  circular  of  instructions,  but  there  was  added  on  the  printed 
form  in  typewriting,  after  the  price,  the  following  words:  "Design  to 
be  as  per  blue  print  marked  contract  No.  4310,  copy  of  which  is 
attached."  The  blue  print  provided  for  footings  thirteen  feet  square, 
while  the  advertisement  called  for  footings  twenty  feet  square.  Held 
that  the  bid  should  be  construed  to  cover  footings  of  only  thirteen 
feet  square.     C.  27569,  Dec.  9,  1910. 

VI  M.  Bids  were  invited  to  supply  65,000  chambray  shirts,  along 
with  other  supphes,  the  advertisement  stating  that  "the  right  is 
reserved  to  reject  or  accept  any  or  all  proposals  or  any  part  thereof." 
The  instructions  to  bidders  stated  that  "time  of  dehveries  will  be 
considered  in  making  the  awards"  and  bidders  were  required  to  state 
the  times  and  amounts  of  deliveries.  The  lowest  bid  was  for  46f 
cents  per  shirt,  the  next  lowest  bid  being  for  50^  cents.     The  lowest 

^  In  an  opinion  under  an  act  of  1843  (similar  to  the  existing  law)  requiring  the  letting 
of  contracts  in  the  Navy  upon  advertisements  for  proposals,  it  was  held  by  Atty.  Gen. 
Nelson  (4  Op,,  334)  that  the  Navy  Department  was  not  authorized,  *  'in  awarding  the 
contract  to  the  lowest  bidder,  to  modify  its  terms,  as  proposed  for,  in  regard  to  the  time 
of  delivery,  or  any  other  of  its  material  elements.  The  obvious  purpose, "  he  adds  "of 
the  act  in  question  was  to  invite  competition  in  the  proposals;  and  it  therefore  requires 
that  the  advertisement  emanating  from  the  department  shall  particularize  every- 
thing that  may  essentially  affect  the  contract.  That  the  time  of  delivery  may  be,  in  a 
contract  of  this  description,  a  material  element  the  circumstances  connected  with 
this  case  clearly  evince,  Non  constat,  if  the  time  had  been  extended,  as  now  proposed, 
on  the  face  of  the  advertisement,  that  other  and  lower  offers  than  were  received  might 
not  have  been  made.  It  may  well  be  that  a  manufacturer  may  not  be  in  a  condition 
to  deliver  at  one  time  and  yet  be  fully  capable  of  doing  so  at  another;  and  that,  whilst 
he  would  be  restrained  by  this  inability  from  competing  for  a  contract  within  the  time 
limited  by  the  proposals,  he  might  have  successfully  done  so  had  the  extended  time 
been  advertised."  (See,  also,  VII  Comp,  Dec,  92,  95.)  In  Schneider  v,  U.  S.  (19  Ct. 
Cls.,  547, 551)  the  syllabus  is  as  follows:  "Where  one  contract  ia  to  furnish  sandstone  for 
a  jjublic  building  at  a  designated  price  and  another  is  to  substitute  marble  at  a  different 
price,  the  material  being  the  sole  subject  matter  of  either  agreement,  the  latter  contract 
can  not  be  regarded  as  a  modification  of  the  former;  it  requires  a  new  advertisement. " 
(See,  also,  15  Op.  Atty.  Gen.  538.)  In  20  Op.  Atty.  Gen.,  496,  where  an  advertisement 
was  published  calling  for  proposals  for  performance  of  certain  work  for  the  Government 
with  the  specification  that  it  be  begun  on  or  before  Oct.  1,  1892,  and  be  concluded  on 
or  before  Dec,  31, 1893,  and  one  of  the  proposals  stated  that  the  bid  was  that  the  entire 
work  was  to  be  completed  on  or  before  June  1^  1894,  and  provided  for  stopping  that 
work  in  certain  contingencies:  Held  that  the  modifications  made  in  the  proposals 
were  inconsistent  with  the  specifications  and  with  the  spirit  and  intent  of  section  3709, 
R.  S.,  and  with  the  river  and  harbor  act  of  1888.    (25  Stat,  423.) 


CONTRACTS  VI   N.  305 

bid  stated  that  it  was  made  **in  accordance  with  your  advertisement 
and  circular  of  instructions."  As  the  rate  of  delivery  proposed  by 
the  lowest  bidder  was  not  fast  enough  the  Government  decided  to 
distribute  the  work  between  three  companies,  and  the  lowest  bidder 
was  offered  a  contract  for  the  manufacture  of  35,000  at  the  same  rate 
stated  in  the  bid.  The  company  refused  the  contract  at  so  low  a 
rate,  insisting  that  the  bid  was  made  low  so  as  to  get  the  entire  con- 
tract. The  work  was  awarded  elsewhere.  Held,  that  it  was  doubtful 
whether  the  reservation  by  the  Government  of  the  right  to  ''accept 
any  or  all  proposals  or  any  'part  thereof^  would  make  an  award  of  a 
part  only  or  the  shirt  item  responsive  to  the  bid,  but  that  the  language 
of  the  reservation  might  be  construed  to  refer  to  the  acceptance  of 
one  of  several  items  proposed  to  be  furnished.  C,  1952S,  Apr.  17, 
1906.  ^  . 

Bids  were  invited  for  furnishing  1,800,000  pounds  of  oats  during 
the  fiscal  year.  The  bid  of  the  lowest  bidder  was  accepted  at  the  price 
stated  in  the  bid,  but  only  for  450,000  pounds,  the  intention  being 
to  accept  the  bid  for  such  quantity  only  as  would  be  sufficient  to 
supply  the  needs  of  the  Government  for  the  period  from  July  1 
to  September  30,  after  which  period  prices  would  be  lower  because 
of  the  new  crop.  The  bidder  refused  to  enter  into  a  contract  and 
the  Government  purchased  elsewhere  in  open  market  at  a  price  in 
excess  of  the  price  of  the  bid.  Held,  the  bid  was  to  supply  oats  as 
needed  during  the  year  and  that  the  acceptance  was  not  of  the  bid 
as  made,  and  therefore  recovery  could  not  be  made  against  the 
guarantor  of  the  bid  for  the  excess  of  cost  of  the  oats.  C.  21924,  Aug. 
24,  1907;  21878,  Aug.  5, 1907. 

An  advertisement  for  bids  stated  that  'Hhe  right  is  reserved  to 
reject  any  or  all  bids  or  parts  thereof,  and  to  waive  defects,"  and 
required  that  the  bids  ''be  accompanied  by  a  satisfactory  guar- 
anty *  *  *  ^Yi2it  the  bidder  will  execute  a  contract,  with  good 
and  sufficient  bond,  if  his  bid  be  accepted  for  any  or  all  the  articles." 
The  form  of  guaranty  that  actually  accompanied  the  bids  provided 
that  the  bidders  would  enter  into  contract  and  l)ond  "if  their  hid 
be  accepted."  Held,  that  the  guaranty  did  not  become  effective 
unless  the  bid  as  a  whole  was  accepted  and  that  the  bidder  could 
legally  refuse  to  enter  into  a  contract  for  part  only  of  the  items  bid 
on.i     C.  1583,  July  26,  1895. 

VI  N.  The  circular  inviting  bids  contained  the  following  provi- 
sion: "If  prices  stated  by  bidders  are  based  on  minimum  shipments, 
the  amount  of  the  minimum  shipments  must  be  clearly  stated  in  the 
bid."  The  lowest  bidder  stated  that  his  bid  was  based  on  minimum 
shipments  of  200,000  pounds,  and  after  the  opening  of  bids  requested 
permission  to  amend  his  bid  by  eliminating  the  provision  as  to 
mininaum  shipments.  Held,  that  such  an  amendment  would  make  a 
material  change  in  the  bid  and  is  not  authorized,  but  that  if  the 
amendment  was  permitted  a  contract  made  with  such  bidder  would 
not  be  iUegal.     0.  26905,  June  17,  1910. 

VI  O.  Bidders  for  certain  quartermaster's  stores  were  advised 
that  "unless  a  bidder  distinctly  states  otherwise,  in  his  proposal, 
it  will  be  assumed  that  he  will  accept  award  of  aU  or  any  part  of  tlie 
quantity  on  which  he  bids."     One  bidder  named  distmct  prices 

1  See  U.  S.  V.  McAleer,  68  Fed.  Rep.,  146,  to  same  effect. 
31106°— 12 ^20 


306  CONTKACTS  VII   A  1. 

for  the  several  items  he  bid  on  and  made  no  mention  that  he  would 
accept  award  for  all  or  none.  This  bidder  claimed  his  bid  should  be 
construed  as  for  the  entire  lot  only.  Held,  that  the  contracting 
officer  was  justified  in  construing  the  bid  to  be  for  the  items  severally. 
a  27676,  Jan.  17,  1910. 

VII  A  1.  Section  3709,  R.  S.,  provides  that  ''aU  purchases  and 
contracts  for  supplies  or  services  m  any  of  the  departments  of  the 
Government,  except  for  personal  services"  shall  be  made  by  advertis- 
ing for  proposals  ''when  the  public  exigencies  do  not  require  the  imme- 
diate delivery  of  the  article  or  performance  of  the  service."  Held, 
under  the  above  provision  that  where  a  contractor  failed  m  the  per- 
formance of  his  contract,  at  a  critical  stage  of  an  important  and  much- 
needed  public  work,  and  at  a  time  of  the  year  when,  if  the  delay  were 
incurred  of  advertising  anew,  there  would  be  risked  a  loss  of  the 
appropriation;  and  a  greatly  increased  charge  to  the  United  States, 
as  well  as  serious  embarrassment  to  the  military  service  would  be 
involved,  the  situation  might  properly  be  viewed  as  an  "exigency" 
justifying  an  immediate  contract  for  the  continuance  of  the  work. 
R.  42,  839,  June  24,  1879. 

Under  the  provisions  of  section  3709,  R.  S.,  where,  notwithstand- 
ing that  Congress  "had  failed  to  make  appropriations  for  the  fiscal 
year  and  no  extra  session  had  been  convened  for  the  purpose  of  having 
the  omission  supplied,  there  remained  ample  time  for  advertising 
for  proposals  for  certain  contracts  for  supplies  before  the  supplies 
themselves  would  be  needed,  Tield,  that  the  circumstances  did  not 
justify  a  dispensing  with  the  general  rule  prescribed  by  the  statute, 
especially  since,  by  the  authority  of  section  3732,  R.  S.,  contracts 
for  these  supplies  could  legally  be  made  in  the  absence  of  an  appro- 
priation. B.  39,  527,  May  3,  1878.  So,  held,  that  it  was  no  excuse 
for  a  noncompliance  with  the  statute,  that  contracts  made  without 
advertisement  had  been  made  with  the  most  reliable  parties  and  to 
the  advantage  of  the  United  States.  R.39,  84,  Dec.  27, 1876.  And, 
held,  that  the  requirement  as  to  advertising  for  proposals  must  be 
complied  with  in  contracting  for  a  supply  of  articles  purchased  for 
trial,  equally  as  if  the  contract  were  for  the  regular  yearly  supplies. 
R.  37,  464,  ^P^'  ^j  1876.  Held,  also,  that  the  fact  that  a  contractor 
for  work  cannot  complete  his  contract  without  losing  money  and  de- 
sires to  abandon  it  does  not  constitute  a  public  exigency.  R.  50, 
76,  Feb.  26,  1886. 

VII  A  2.  While  existing  law  leaves  to  the  heads  of  the  several  staff 
departments  the  duty  of  supervising  all  contracts  and  purchases  made 
in  their  respective  departments,  it  does  not  require  them  to  determine 
whether  in  a  particular  case  an  emergency  exists,  but  imposes  upon 
the  officer  charged  with  the  duty  of  making  the  purchase  the  discre- 
tion to  determine  whether  an  emergency  exists.*  G.  14303,  Mar.  21, 
1903. 

*  As  to  the  authority  who  is  to  decide  whether  there  exists  such  an  exigency  as  is 
contemplated  by  the  statute,  the  Supreme  Court,  in  United  States  v.  Speed,  8  Wal- 
lace, 83,  has  held  that  it  is  "the  officer  charged  with  the  duty  of  procuring  supplies 
or  services  who  is  invested  with  this  discretion.  "  This  description  is  rather  general, 
nor  is  the  term  "the  purchasing  officer,"  by  which  the  Court  of  Claims  explains  it, 
in  Thompson  v.  United  States,  9  Ct.  Cls.,  196,  a  much  more  precise  definition.  It  is 
clear,  however,  that  a  subordinate  officer  charged  with  the  duty  of  being  the  imme- 
diate representative  of  the  United  States  in  a  contract  or  purchase  should  not,  in 
general,  venture  to  dispense  with  advertising,  on  the  theory  of  the  existence  of  a 


CONTRACTS  VII   B.  307 

The  commanding  officer  of  a  post  who  had  no  duty  to  perform  in 
connection  with  procuring  the  suppHes,  except  to  make  a  requisition 
for  them,  has  no  authority  to  determine  whether  there  was  such  an 
exigency  as  would  make  advertising  unnecessary.  C.  15290,  Oct.  6, 
1903. 

Where  there  is  doubt  as  to  the  existence  of  an  emergencjr  the  con- 
templated purchase  should  be  referred  to  higher  authority  if  the  cir- 
cumstances will  permit  of  dcJay.  Where,  however,  the  Secretary  of 
War  could  have  authorized  an  exigency  purchase  before  it  was  made 
he  may,  if  in  liis  judgment  the  piiblic  exigency  existed,  approve  the 
expenditure  after  it  has  been  made.  C.  3481,  Sept.  1,  1897;  15290, 
Oct.  5, 1903. 

Where  the  officer  charged  with  the  duty  of  making  the  purchase  has 
certified  that  a  public  exigency  existed  wliich  would  not  admit  of  the 
delay  incident  to  advertising,  and  the  papers  in  the  case  do  not  nega- 
tive such  a  certificate.  Recommended,  that  the  purchase  be  approved. 
C.  11473, Oct.31, 1901. 

VII  B.  Where  elevators  were  to  be  installed  in  the  War  Depart- 
ment under  the  act  of  February  3,  1905  (33  Stat.  663),  making  an 
appropriation  ''for  a  pair  of  new  elevators,"  the  statute  imposing  no 
restriction  upon  the  letting  of  the  contract  except  by  limiting  the  cost, 
held  that  inasmuch  as  the  work  is  not,  strictly  speaking,  under  "  any  of 
the  departments  of  the  Government"  witmn  the  meaning  of  section 
3709,  R.  S.,  it  is  doubtful  whether  advertising  is  required.^  C.  18153, 
June  12, 1905. 

Held  that  the  purchase  of  the  gray  cloth  used  for  the  uniforms  of 
the  cadets  of  the  Military  Academy  was  not  a  purchase  of  supplies 
''in  the  War  Department"  in  the  sense  of  section  3709,  R.  S.,  and 
was  therefore  not  required  to  be  made  by  advertising.  This  section 
has  apparently  in  view  purchases  of  supplies  for  the  uses  and  purposes 
of  the  United  States,  under  appropriations  made  specifically  for  such 
supphes  or  clearly  applicable  to  them  and  expended  as  public  funds 
under  the  control  and  direction  of  the  head  of  a  department.  The 
cadet  clothing  is  purchased  not  as  "supplies"  for  the  Army  in  gen- 
eral, but  for  the  special  use  of  a  particular  class  of  persons,  and  is 
Eaid  for,  not  out  of  an  appropriation  for  the  military  establishment, 
ut  out  of  their  monthly  pay.  The  continued  usage  of  a  department 
in  regard  to  any  transaction  is  an  important  factor  m  the  construction 

public  exigency,  in  the  absence  of  instructions  or  orders  from  a  proper  superior. 
Nor,  on  the  other  hand,  will  a  superior  officer,  in  entering  into  a  contract  for  his 
command  or  branch  of  the  service,  properly  assume  that  an  "exigency"  exists  author- 
izing him  to  dispense  with  the  statutory  forms,  when  the  period  is  time  of  peace  and 
no  imperative  necessity  exists  for  the  immediate  delivery  of  the  supplies  or  perform- 
ance of  the  service  proposed  to  be  contracted  for.  It  is  to  be  noted  that  the  cases 
both  of  Speed  and  Thompson  related  to  contracts  entered  into  during  the  Civil  War. 
In  the  instructive  opinions  of  the  Attorney  General  on  the  "Fifteen  per  cent  Cont- 
tracts"  of  Apr.  27  and  May  3,  1877  (15  Op.,  235,  253),  it  is  held  that  the  "exigency" 
contemplated  by  the  statute  can  be  one  of  time  only,  and  that  it  can  be  regarded  as 
existing  only  where  an  immediate  delivery  or  performance  is  required  by  a  public 
necessity. 

See,  however,  III  Comp.  Dec,  470;  5  id.,  64. 

*  See  VIII  Comp.  Dec. ,  128,  holding  that  Spanish  Claims  Commission  was  not  attached 
to  any  "executive  department  "  and  therefore  did  not  come  under  sec.  3709,  R.  S., 
as  amended.  See,  also,  XV  Comp.  Dec. ,  606,  holding  Library  of  Congress  is  not  attached 
to  an  "executive  department." 


308  CONTRACTS  VII   C. 

of  the  law  relating  thereto/  and  for  upward  of  fifty  years  the  cloth- 
ing in  question  has  been  purchased  in  open  market  from  a  particular 
mills  company.  Advisedthsit  such  usage  might  be  continued  without 
contravention  of  existing  law.     P.  4^,  198,  July  13,  1891. 

VII  C.  The  word  '^supplies"  as  used  in  section  3709,  R.  S.,  includes 
gun  carriages  purchased  for  the  use  of  the  Gettysburg  National  Park 
Commission.2     q  15268,  Sept.  16, 1903. 

Under  the  act  of  March  9,  1906  (34  Stat.  56),  for  the  marking,  etc., 
of  the  graves  of  the  Confederate  dead  who  died  in  northern  prisons, 
etc.,  it  was  proposed  to  erect  a  monument.  Held,  that  it  is  ques- 
tionable whether  a  contract  for  the  erection  or  repair  of  a  monument 
in  the  execution  of  the  above  statute  would  constitute  a  contract  for 
''supphes"  within  the  meaning  of  section  3709,  R.  S.  G.  19834, 
May  24, 1910. 

VII  D.  ''Personal  services,"  within  the  meaning  of  section  3709, 
R.  S.,  are  services  to  be  rendered  in  person  by  the  party  or  parties 
who  contract  to  furnish  them  whether  the  character  of  the  services 
are  skilled  or  not.^  So,  lield,  that  services  of  physicians,  services  of 
washerwomen,  services  in  repairing  mattresses,  bedsteads,  clocks, 
chairs,  etc.,  and  in  hauling  rubbish,  ashes,  etc.,  if  to  be  rendered  in 
person  by  those  who  contract  to  perform  them,  are  ''personal  serv- 
ices" within  the  meaning  of  this  section.  G.  653,  Nov.  22,  1894; 
10967,  Aug.  5,  1901;  16493,  June  18,  1904.  Laundry  work  to  be 
done  at  a  steam  laundry  where  the  contractor  does  not  perform  the 
work  in  person  is  not  "personal  services."  G.  10783,  July  1,  1901; 
I6493,  June  18,  1904'  ^'he  fact  that  certain  work  is  to  be  paid  for  by 
the  job  does  not  prevent  it  being  "personal  services."  G.  10967, 
Aug.  5,  1901. 

1  2  Op.  Atty.  Gen.  558;  4  id.  467,  470;  10  id.  52. 

2  See  VII  Comp.  Dec.  where  it  was  held  that  the  word '  *  supplies  "  as  used  in  appropria- 
tion acts  applied  to  such  only  as  are  required  for  annual  consumption.  In  III  Digest 
Decisions  of  2d  Comptroller,  p.  288,  it  is  said:  "The  word  'supplies'  as  used  in  sec. 
3709  of  the  Revised  Statutes,  evidently  has- reference  to  those  things  which  the  well- 
known  needs  of  the  public  service  will  from  time  to  time  require  in  its  different  branches 

'for  its  successful  and  efficient  administration,  and  the  statute  was  intended  to  afford 
the  Government  the  pecuniary  benefits,  as  well  as  the  protection  against  fraud  and 
favoritism  which  open  and  honest  competition  is  always  likely  to  secure."  In  Gleason 
V.  Dalton,  5  N.  Y.  Supp.,  337;  28  App.  Div.  555,  it  is  said  "  'Supplies'  as  used  in  refer 
ence  to  a  city,  in  its  broad  etymological  sense  embraces  anything  which  is  furnished 
to  a  city  or  its  inhabitants;  but  as  used  in  sec.  419  of  the  Greater  New  York  charter, 
requiring  competitive  bids  for  supplies,  it  has  no  application  to  contracts  for  furnishing 
water  to  the  inhabitants  of  New  York."  So,  also,  in  Farmers'  Loan  &  Trust  Co.  v.  City 
of  New  York,  17  N.  Y.,  Super.  Ct.  89,  it  was  held  that  the  use  of  a  pier  hired  by  the 
city  for  the  purposes  of  removing  offal  from  the  city,  is  not  a  "supplj^"  furnished, 
within  the  meaning  of  a  law  that  all  supplies  to  be  furnished  for  the  city  involving 
an  expenditure  of  more  than  $250  must  be  by  contract  founded  on  sealed  bids. 

3  In  an  opinion  of  Attorney  General  Bates,  dated  May  23,  1862  (10  Op.,  261),  it  was 
held  that  a  contract  for  surveying  reservation  lands  under  a  treaty  with  the  Indians 
was  "personal  services"  within  the  meaning  of  section  10  of  the  act  of  March  2,  1861 
(12  Stats.,  220),  now  embodied  in  sec.  3709,  R.  S. — the  reason  assigned  being  that  the 
services  required  not  only  fidelity  and  integrity  but  a  certain  kind  of  skill  and  knowl- 
edge, and  that  the  contracting  officer  should  nave  discretion  in  selecting  those  who 
possess  the  required  qualifications.  In  later  opinions,  however,  "personal  services," 
as  used  in  sec.  3709,  R.  S.,  are  held  to  include  services  to  be  rendered  in  person  by  the 
party  contracted  with,  who  thus  becomes  a  servant  of  the  Government.  (15  Op. 
Atty.  Gen.,  235,  253;  19  id.,  96.)  In  VI  Comp.  314,  the  term  "personal  services,"  as 
used  in  this  section,  is  defined  as  services  to  be  "performed  by  a  single  person,  or  by 
firms,  for  the  Government,  under  a  contract  made  with  the  Goyernment  to  render  for 
it,  his,  or  their  individual  services,  of  either  skilled  or  unskilled  labor,  under  the 
direction  of  the  Government,  thereby  becoming  the  servant  of  the  Government  in  the 
performance  of  such  labor."    (See  also  par.  528,  A.  R.,  of  1910.) 


CONTRACTS  VII  E  1.         '  309 

VII  E  1.  The  act  of  June  12,  1906  (34  Stat.  258),  provides  that 
^'Hereafter  the  purchase  of  supplies  and  the  procurement  of  services 
for  all  branches  of  the  Army  service  may  be  made  in  open  market,  in 
the  manner  common  among  business  men,  when  the  aggregate  of  the 
amount  required  does  not  exceed  $500."  Held,  that  there  is  nothing 
in  the  act  to  justify  construing  the  words  ''aggregate  of  the  amount 
required"  to  require  that  the  purchase  should  be  limited  to  any  par- 
ticular period  of  time,  as  a  day,  month,  or  year,  or  shall  be  limited  to 
purchases  made  from  a  single  firm,  etc.  The  aggregate  should 
include  all  supplies  which  are  properly  grouped  together  in  a  single 
transaction,  and  which  would  be  mcluded  in  a  single  advertisement 
for  bids,  if  advertising  were  resorted  to.  Purchases  arising  from  the 
same  need  of  the  same  articles  of  subsistence  stores  should  not  be 
made  more  frequently  than  the  necessities  of  the  service  require,  so 
as  to  limit  the  aggregate  in  each  case  to  $500,  and  supplies  which  are 
usually  purchased  together  should  not  be  divided  simply  for  the  pur- 
pose of  avoiding  advertising  for  the  same.  If  the  cnaracter  of  the 
supphes  is  such  that  good  administration  would  require  their  pur- 
chases in  quantities  sufficient  to  last  a  month,  purchases  should  not 
be  made  weekly  or  daily  for  the  purpose  of  bringing  the  amount 
within  the  limit  authorized  for  open-market  purchases.  Subject  to 
the  above  considerations,  the  matter  is  one  depending  upon  the  sound 
discretion  of  the  purchasing  officer.     0.  28931,  Sept.  2,  1911. 

VII  E  2.  The  act  of  June  12,  1906  (34  Stat.  258),  does  not  apply  to 
river  and  harbor  improvements  and  other  civil  work  of  a  nonmilitary 
character  that  maybe  under  the  actual  control  of  Army  engineers,  as 
such  work  is  not  ''Army  service."     0.  20326,  Sept.  7,  1906. 

VII E  3.  The  Army  War  College  is  a  branch  of  the  "Army  service'' 
within  the  meaning  of  the  act  of  June  12,  J906  (34  Stat.  258),  which 
provides  for  the  purchase  and  procurement  of  supplies  and  services 
"for  all  branches  of  the  Army  service"  in  open  market,  where  the 
aggregate  of  the  amount  does  not  exceed  $500,  etc.  G.  IJjdl^J^,  Oct. 
14,  1907. 

VII  E  4.  The  act  of  June  12,  1906  (34  Stat.  258),  provided  that 
"hereafter  the  purchase  of  supplies  and  the  procurement  of  services 
for  aU  branches  of  the  Army  service  may  be  made  in  open  market,  in 
the  manner  common  among  business  men,  when  the  aggregate  of  the 
amount  required  does  not  exceed  five  hundred  dollars;  but  every  such 
purckase  exceeding  one  hundred  dollars  shall  be  promptly  reported  to 
the  Secretary  of  War  for  approval,  under  such  regulations  as  he  may 
prescribe."  Held,  that  when  the  aggregate  of  the  amount  required 
does  not  exceed  $500  it  is  not  necessary  to  either  advertise  or  to  enter 
into  a  written  contract  as  required  by  section  3744,  R.  S.  G.  23214, 
May  5,  1908. 

VII  E  5.  To  purchase  "in  open  market"  is  to  purchase  without 
advertising,  and  in  the  manner  in  which  one  person  in  civil  life  ordi- 
narily purchases  from  another  in  private  business.^  G.  313,  Oct.  6, 
1894;  23214,  May  5,  1908. 

VII  F  1.  The  act  of  August  11,  1888  (25  Stat.  423),  relatmg  to  river 
and  harbor  improvements  provides  that  the  Secretary  of  War  shall 
apply  the  money  appropriated  "in  carrying  on  the  various  works,  by 
contract  or  otherwise,  as  may  be  most  economical  and  advantageous 

^  See  par.  559,  A.  R.  1910. 


310  CONTRACTS  VII   F  2. 

to  the  Government.  Where  said  works  are  done  by  contract  such 
contract  shall  be  made  after  sufficient  public  advertisement  for  pro- 
posals in  such  manner  and  form  as  the  Secretary  of  War  shall  pre- 
scribe; and  such  contracts  shall  be  made  with  the  lowest  responsible 
bidders,  accompanied  by  such  securities  as  the  Secretary  of  War  shall 
require  conditioned  for  the  faithful  prosecution  and  completion  of  the 
work  according  to  such  contract. "  Held,  that  while  this  act  does  not, 
like  section  3709,  R.  S.,  in  words  except  cases  of  emergency  from  the 
necessity  of  advertising,  it  may  be,  and  in  practice  has  been,  construed 
to  permit  such  contracts  to  be  made  without  advertising  in  cases  of 
emergency.  0.  6279,  Nov.  21,  1898;  7315,  Nov.  18,  1899,  and  Aug.  8, 
1910.  So,  also,  where  the  Government  owned  a  number  of  iron  rails, 
lield,  that  under  the  provision  of  the  above  act  of  August  11,  1888, 
authorizing  the  work  to  be  carried  on  ^^hy  contract  or  otherwise''  the 
Government  could  properly  make  a  supplemental  contract  with  a 
contractor  without  advertisement  for  rentmg  the  rails  to  the  contrac- 
tor for  use  in  connection  with  the  river  improvement  work  (G.  10819, 
July  13,  1901);  and  under  the  same  provision  to  the  above  act,  held, 
that  the  government  by  a  supplemental  contract  without  advertise- 
ment could  terminate  a  contract  for  river  improvement,  the  contractor 
releasing  all  claims  against  the  Government,  the  Government  paying 
him  for  the  work  already  performed,  purchasing  all  the  material  on 
hand  and  liiring  the  contractor's  entire  plant  until  the  completion  of 
the  work  by  the  Government.  O.  2275,  May  12,  1896;  8087,  Apr.  27, 
1900.  So,  also,  where  a  contractor  for  a  river  improvement  aban- 
doned the  contract  after  performing  part  of  the  work,  held  that,  under 
the  same  provision  of  the  above  act,  the  Government  could  purchase 
the  plant  of  a  subcontractor  and  complete  the  work  by  hirmg  labor 
and  purchasing  material.  G.  27790,  Feb.  6,  1911.  So,  also,  where  a 
dredging  company  offered  to  do  dredging  at  a  certain  price  per  cubic 
yard,  which  price  was  a  very  low  one  for  the  reason  that  it  had  an 
arrangement  with  a  railroad  company  that  was  interested  in  the  work 
to  receive  additional  compensation  from  that  company.  Held,  under 
the  same  provision  of  the  above  act,  that  an  agreement  without  adver- 
tising could  be  made  with  the  dredging  company  whereby  the  dredg- 
ing company  should  do  the  work  at  the-  very  low  figure  named  under 
the  supervision  of  the  engineer  officer.  G.  7980,  Apr.  11, 1900.  So, 
also,  under  the  same  provision  of  the  above  act,  where  a  contract  called 
for  the  removal  of  rock  to  a  width  of  40  feet  and  it  was  desired  to* have 
the  same  contractor  remove  rock  for  an  additional  60  feet  in  width, 
held,  that  if  the  work  was  to  be  done  by  hiring  the  contractor  to 
remove  rock  at  a  certain  price  per  cubic  yard  and  not  by  agreeing 
with  him  to  remove  a  given  quantity  of  rock,  the  work  might  be  con- 
sidered as  being  done  otherwise  than  by  contract,  and  no  advertise- 
ment would  be  necessary.     G.  8658,  Aug.  6,  1900. 

VII  F  2.  Where  the  act  of  March  3,  1905  (33  Stat.,  860),  which 
authorized  improvements  at  West  Point  provided  that  "  after  general 
plans  had  been  prepared  and  approved  by  the  Secretary  of  War,  he 
might,  within  the  limit  of  cost  fixed,  proceed  with  their  execution  in 
such  order  as  the  detailed  plans  might  be  approved  by  him  and  in 
such  manner  ^hy  contract  or  otherwise'  as  he  might  see  fit."  Held, 
that  the  buildings  might  be  constructed  on  the  percentage  plan  and 
without  advertisement.     G.  20947,  Jan.  18, 1907,  and  Feh.  3, 1911. 


CONTKACTS  VII   G   1.  311 

VII  G  1 .  Where  Confess  makes  an  appropriation  applicable  to  the 
alteration  of  a  particular  monument  upon  the  report  or  a  committee 
which  referred  to  a  particular  plan  for  the  alteration  as  meeting  with 
the  approval  of  aU  parties  interested,  heldy  that  such  action  would 
imply  a  legislative  adoption  of  the  plan  so  that  it  could  not  be  mate- 
rially departqd  from,  and  if  a  private  company  had  the  exclusive  right 
to  use  those  plans  the  case  would  be  one  where  competition  would  be 
useless  and  wouhl  constitute  an  exception  to  the  rule  laid  down  in 
section  3709  R.  S.,  that  advertising  should  be  had.  C,  19834,  May  24, 
J910. 

VII  G  2.  Where  the  Army  War  College  wished  to  obtain  certain 
maps,  many  of  which  were  rare  and  difficult  to  obtain,  so  that  it 
would  be  impossible  for  bidders  to  determine  what  the  maps  would 
cost  them,  held,  that  competition  would  be  useless,  and  under  the 
provisions  of  the  act  of  March  2,  1903  (32  Stat.,  936),  which  requires 
advertising  except  "where  it  is  impracticable  to  secure  competition," 
advertising  could  be  dispensed  with.     C.  16018,  Mar.  12,  1904- 

VII  G  3.  Where  the  Government  desired  to  purchase  electric  power 
under  circumstances  where  there  was  no  real  competition,  liela,  that 
advertising  would  not  be  necessary,  as  it  would  be  useless.  C.  18169, 
June  16,  1905. 

Where  it  was  desired  to  install  wireless  telegraph  stations  in 
Alaska,  lield,  that  as  each  bidder  is  in  possession  of  certain  informa- 
tion and  methods  of  transmitting  messages  which  are  but  partially 
developed  and  are  not  available  to  any  other  bidder,  the  case  is  not 
one  where  there  can  be  true  competition.  Therefore,  section  3709 
R.  S.,  does  not  require  advertising  m  such  a  case.^  G.  12706,  May  31, 
1902. 

The  Government  licensed  certain  telegraph  instruments  obtained 
under  a  contract  which  provided  that  the  Government  should  not 
dispose  of  the  instruments  in  any  way  except  by  total  destruction 
or  by  sale  to  the  licensor  upon  terms  to  be  mutually  agreed  upon. 
Held,  that  in  selling  the  instruments  to  the  licensors  it  would  not  be 
necessary  to  advertise  for  bids,  as  competition  would  be  useless. 
C.  20523,  Oct  17, 1906. 

Where  it  was  desired  to  enter  into  a  contract  in  the  nature  of  a 
lease  to  take  sand  and  gravel  from  certain  land,  lield,  that  competi- 
tion would  be  useless  and  advertisement  was  not  necessary.  G.  17642, 
Mar.  8,  1905. 

Wliere  bids  for  supplying  sand  and  gravel  had  been  invited  in 
January,  1903,  and  the  prices  ranged  from  $1  to  $1.50  per  cubic 
yard,  neld,  that  a  contract  could  be  made  in  July,  1903,  for  sand 
and  gravel  at  40  cents  per  cubic  yard  without  advertising,  as  compe- 
tition would  be  useless.     G.  14919,  July  9, 1903. 

VII H.  Wliere,  pursuant  to  section  3709,  R.  S.,  advertisement  has 
been  once  duly  made,  the  law  has  been  complied  with.  If  this  adver- 
tisement is  without  result,  it  is  not  necessary  (though  it  is  permis- 
sible) to  advertise  again,  or  to  go  on  advertising  tifl  an  acceptable 

^  See  I  Comp.  Dec,  229;  II  id.,  632;  V  id.,  554;  17  Op.  Atty.  Gen.,  84,  that  sec. 
3709  R.  S.,  does  not  require  advertising  to  precede  contracts  for  the  purchase  of 

fatented  and  copyrighted  articles.  In  an  unpublished  opinion  of  the  Comptroller  of 
une  30,  1908,  found  on  C.  25747,  J.  A.  G.  O.,  the  determination  by  the  Secretary  of 
War  that  the  purchase  of  a  particular  vehicle  was  needed,  and  his  determination  that 
the  circumsta,nces  rendered  competition  impracticable  were  accepted  as  sufficient  to 
excuse  the  absence  of  advertisement.    See  also  U.  S.  v.  Speed,  8  Wall.,  83. 


312  CONTRACTS  VII  I. 

proposal  be  received,  but  open-market  purchase  without  advertising 
may  be  resorted  to.^  62,  P.  494,  Dec.  14,  1898;  G.  8198,  May  4, 
1900;  9036,  Sept  27.,  1900;  16342,  May  18,  1904;  16493,  June  18, 
1904;  and  24059,  Oct.  27,  1908.  In  the  latter  case,  however,  the 
purchase  must  be  limited  to  the  article  or  articles  previously  adver- 
tised for.  C.  313,  Oct.  5, 1894;  8198)  May  4,  1900.  So,  where  bids 
were  invited  for  certain  road  work  in  the  Gettysburg  National  Park, 
coupled  with  the  statement  that  $15,000  had  been  set  aside  for  the 
work,  and  no  bid  was  received  within  that  figure,  and  it  was  then 
decided  to  let  a  contract  without  advertisement  for  a  part  only  of 
the  road  work  formerly  designated.  Held,  that  readvertisement 
was  necessary.     C.  20298,  Aug.  28,  1906. 

VII  I.  It  IS  the  established  practice  in  the  fiscal  administration 
of  the  several  executive  departments  that  one  department  or  bureau 
may  obtain  from  another,  at  cost  price,  such  articles  as  are  needed 
in  its  administration,  the  theory  bemg  that  the  requirements  of  law, 
in  respect  to  advertising  and  contracting,  have  been  complied  with 
in  the  original  purchase  of  the  articles  so  transferred  at  cost  price. 
Therefore,  Tield,  that  the  commissioners  of  the  National  Soldiers' 
Home  may  lawfully  purchase  clothing  from  the  quartermaster's 
department,  if  such  clothing  is  considered  more  suitable  than  that 
obtained  by  contracts  between  the  commissioners  and  manufacturers. 
C.  26911,  June  20,  1910.  Where  the  Government  of  the  Philippme 
Islands,  after  an  opportunity  for  competition  had  been  afforded, 
entered  into  a  contract  with  the  owners  of  certain  merchant  vessels 
for  the  transportation  of  passengers  and  freight  between  certain  parts 
of  the  Philippine  Islands  at  reduced  rates,  and  the  United  States  had 
an  opportunity  to  obtain  the  same  rates,  Jield,  that  the  United 
States  could  lawfully  take  advantage  of  the  reduced  rates  without  a 
fresh  advertisement.  .0.  22672,  Jan.  24,  1908.  Where  the  United 
States  desired  to  have  insane  Filipino  soldiers  cared  for  in  the  San 
Lazaro  Hospital,  Manila,  which  institution  was  under  the  control  of 
the  Government  of  the  Philippine  Islands,  Tield,  that  the  agreement 
for  this  purpose  should  be  by  an  informal  agreement  without  adver- 
tising not  by  a  formal  contract,  under  section  3744,  R.  S.^  C.  23229, 
Aug.  4, 1909. 

Applying  the  same  principle  to  the  operations  of  a  post  exchange 
(which  is  an  instrumentality  of  the  United  States),  a  post  hospital 
could  properly  contract  without  advertisement  to  have  the  hospital 
laundry  work  done  at  the  post-exchange  laundry,  and  on  the  other 
hand,  as  the  post  exchange  is  not  a  legal  entity,  and  is  exempt  from 
burdens  borne  by  private  commercial  institutions,  such  as  rent, 
taxes,  license  fee,  etc.,  it  would  be  improper  for  it  to  compete  with 
other  bidders  for  public  supplies  or  services.^    C.  18156,  Oct.  31,  1905. 

VII  J  1 .  If  a  contract  is  stiU  in  existence  as  an  executory  contract, 
even  though  one  party  may  have  completely  performed  his  part  of  the 
contract,  arid  it  is  not  against  the  fublic  interest  to  close  it  out  by  a 
compromise   agreement  between  the  parties,  compensating  either 

^  Par.  559,  A.  R.,  1910,  provides  that  "an  open-market  purchase  of  supples  or 
engagement  of  services  is  one  made  without  advertising,  and  is  authorized  in  the 
following  cases:    *    *    * 

"3.  When  proposals  have  been  invited  and  none  have  been  received. 

"4.  When  proposals  are  above  the  market  price  or  otherwise  unreasonable." 

^XVIComp.  Dec.,163. 

•■'See  Cir.  57,  W.  D.,  Nov.  7,  1905. 


CONTRACTS  VII  J   2.  313 

party  for  damages  suffered  instead  of  carrying  the  contract  to  com- 

Eletion  according  to  the  original  intention,  the  Secretary  of  War  may 
y  a  supplemental  contract  make  such  a  compromise  agreement ;  but, 
if  on  the  contraiy,  the  contract  has  already  actually  been  canceled  and 
annulled,^  and  therefore  the  contract  is  out  of  existence  as  an  execu- 
tory contract,  the  Secretary  of  War  can  not  settle  with  the  contractor 
for  any  damages  he  may  have  suffered  by  reason  of  anything  that  has 
been  done.  Before  the  Secretary  can  close  out  a  contract  by  a  com- 
promise agreement  there  must  be  a  live  contract  to  close  out.  There 
must  be  an  executory  contract  in  existence  for  the  contractor  to 
perform  and  fulfill  according  to  its  terms.  But  if  a  contract  has  been 
actually  canceled  and  anniuled  there  is  nothing  that  the  contractor 
would  have  the  right  to  proceed  with  and  therefore  nothing  that  the 
Secretary  could  close  out  by  a  compromise  agreement.  If  a  contract 
is  alreacfy  canceled  and  annulled,  it  is  already  closed  and  the  rights 
of  all  parties  are  fixed.^  C,  3969,  Oct.  11, 1898;  10502,  May  16,  1902. 
VII  J  2.  Where  a  contract  provides  that  the  contractor  may  be 
allowed  such  additional  time  as  the  constructing  officer  may  deter- 
,  mine  to  be  due  to  certain  causes,  held  that  a  supplemental  contract  is 
not  necessary,  bu-t  that  it  is  sufficient  to  notify  the  contractor  in 
writing  of  the  determination  made.     C.  17597,  Peb.  27,  1905. 

VII  J  3.  Even  where  a  contract  stipulates  for  a  modification  of 
its  terms,  by  consent  of  parties,  to  be  set  forth  in  a  supplemental  con- 
tract, such  supplemental  contract  must  be  confined  to  modification 
merely  of  the  specific  undertaking  which  is  the  subject  of  the  original 
contract.  A  modification  which  introduces  any  new  matter  not 
originally  contracted  for — as  different  and  distinct  work  to  be  done 
or  service  to  be  j)erformed — is  a  new  and  independent  contract  made 
without  advertising  for  bids,  and  not  legitimate.  So,  held,  that  a 
contract  for  dredging  in  North  River  and  at  North  River  Bar,  N.  C, 
could  not  legally  be  modified  by  a  supplemental  contract  substituting 
dredging  in  Carrituck  Sound,  a  quite  different  locality.  P.  64,  SJ,.^, 
Apr.  12,  I894.  An  advertisement  for  a  certain  quantity  of  quarter- 
master stores  was  duly  made.  The  contract  contained  a  provision 
that  the  contract  ''may  be  changed,  altered,  modified,  or  abrogated 
in  whole  or  in  part  ana  the  quantity  of  the  article  herein  contracted 
for  may  be  increased  at  any  time  during  the  present  fiscal  year." 

^  But  the  fact  that  one  of  the  parties  to  the  contract  has  failed  or  refused  to  carry  out 
the  contract  does  not  constitute  a  cancellation,  rescission,  or  annulment.  The  contract 
is  still  in  force  and  the  rights  and  claims  of  both  parties  may  be  settled  by  a  compro- 
mise agreement  between  them  if  not  against  the  interest  of  the  United  States.  In 
22  Op.  Atty.  Gen.,  437,  it  was  said:  "It  is  a  mistake  to  suppose,  except  where  it  is 
expressly  so  provided,  that  one  party  to  a  contract  can,  without  the  consent  or  default 
of  the  other,  cancel,  rescind,  or  put  an  end  to  the  contract  or  its  obligations.  The  law 
neither  provides  nor  recognizes  any  such  easy  road  to  repudiation.  A  party  may 
abandon  or  fail  or  refuse  to  perform  his  contract,  but  its  obligations  still  continue, , 
although  at  law  there  may  be  no  means  for  their  enforcement.  This  is  shown  by  the 
fact  that  it  is  the  usual  practice  of  courts  of  equity  to  enforce  the  specific  performance 
of  contracts  against  parties  after  their  breach  of  or  refusal  to  perform  them.  This,  of 
Course,  could  not  be  done  if  the  obligations  of  the  contract  did  not  continue  after 
breach  as  before." 

^  The  rule  stated  in  the  paragraph  must  be  understood  as  subject  to  the  limitation 
that  no  executive  officer  has  authority  to  settle  by  a  supplemental  contract  such  unliq- 
uidated damages  in  favor  of  the  United  States  as  may  arise  from  a  breach  of  the 
contract  (as  distinguished  from  unliquidated  damages  arising  from  the  i)erformance  of 
the  contract),  but  in  such  cases  resort  must  be  had  to  the  courts  for  their  liquidation. 
Cramp  &  Sons  v.  U.  S.,  216  U.  S.,  503,  XVII  Comp.  Dec,  806,  810. 


314  CONTKACTS   VII  J   3. 

Held,  that  this  provision  did  not  authorize  the  parties  to  the  contract, 
even  by  mutual  agreement,  to  permit  the  contractor  to  deliver  a  quan- 
tity not  called  for  in  the  advertisement  and  contract,  and  that  addi- 
tional stores  could  be  obtained  only  after  advertisement  as  required 
by  law.i  R.  87,  478,  Apr.  18,  1876;  39,  653,  Sept  3,  1878;  4I,  182, 
Apr.  4,  1878. 

^  In  the  case  of  a  contract  in  the  Post  Office  Department,  containing  a  stipulation 
for  extension,  etc.,  by  the  authority  of  which  the  operation  of  the  contract  had  been 
extended  beyond  the  period  expressly  limited  therein,  although  by  a  statute  governing 
the  case  it  was  required  that  all  such  contracts  should  be  made  upon  advertisement, 
proposals,  etc.,  it  was  held  bj^  Attorney  General  Hoar  (13  Op.,  174),  as  follows:  "I  am 
of  the  opinion  that  the  provisions  of  that  statute  apply  to  the  contract  in  question,  and 
that,  although  the  contract  contained  a  provision  for  its  extension  and  modification 
at  the  pleasure  of  the  contracting  parties,  such  a  provision  was  not  authorized  by  law. 
If  a  contract,  which  the  law  only  allows  to  be  made  in  pursuance  of  an  advertisement, 
could  afterwards  be  renewed  and  extended  at  the  pleasure  of  the  Postmaster  General 
without  any  advertisement,  it  would  be  in  the  power  of  that  officer  and  his  successors 
in  office,  unless  restrained  by  some  subsequent  act  of  the  legislature,  to  make  for  all 
future  time  such  contracts  as  he  might  think  expedient,  without  reference  to  the 
conditions  contained  in  the  original  advertisement  for  proposals,  or  to  the  terms  upon 
which  the  contract  was  offered  to  public  competition."  The  above  opinion,  however,  ^ 
is  not  inconsistent  with  the  right  of  the  United  States  to  modify  an  existing  contract 
with  the  consent  of  the  contractor,  or  even  to  entirely  abandon  an  existing  contract, 
either  with  or  without  the  consent  of  the  contractor,  if  such  a  course  is  deetned  not  to  he 
against  the  interest  of  the  Government.  This  right  exists  whether  the  contract  does  or 
does  not  contain  a  provision  for  its  modification,  and  is  usually  and  regularly  accom- 
plished by  means  of  a  brief  written  supplemental  contract  briefly  reciting  the  facta 
which  show  the  contract  is  not  against  the  interest  of  the  United  States,  signed  as 
required  by  sec.  3744,  R.  S.,  and  approved  by  the  officer  charged  with  the  aj^proval  of 
the  original  contract.  The  right  may,  however,  be  exercised  by  the  officer  in  charge 
of  work  verbally  ordering  changes  commonly  known  as  ''extras."  If  the  contractor 
performs  the  "extra"  work  or  supplies  "extra"  material  he  should  be  paid  the  reason- 
able value  of  the  same  unless  the  parties  agreed  upon  a  price  before  performance. 

The  following  decided  cases  illustrate  the  broad  scope  of  supplemental  contracts:  In 
U.  S.  V.  Corliss,  91  U.  S.,  321,  the  Secretary  of  the  Navy  had  made  contracts  for  engines 
and  machinery  to  be  placed  on  one  of  our  vessels  of  war,  but  before  the  work  was  com- 
pleted, the  war  being  closed,  the  Secretary  suspended  the  further  performance  of  the 
contracts.  The  contractor  proposed  that  in  settlement  of  the  whole  matter  he  would 
retain  the  uncompleted  engines  and  machinery  and  accept  $150,000  or  he  would 
deliver  the  work  in  its  uncompleted  state  and  accept  $259,068  in  full  settlement.  The 
Secretary  accepted  the  latter  proposition,  and  there  being  no  appropriation  therefor, 
gave  the  contractor  a  certificate  for  this  sum,  and  the  Supreme  Court  upheld  the  settle- 
ment and  expressly  decided  that  it  was  within  his  power.  In  that  case  the  court  said: 
*  *  *  "As,  in  making  the  original  contracts,  he  (the  Secretary  of  the  Navy)  must 
agree  upon  the  compensation  to  be  made  for  their  entire  performance,  it  would  seem 
that,  when  those  contracts  are  suspended  by  him,  he  must  be  equally  authorized  to 
agree  upon  the  compensation  for  their  partial  performance.  Contracts  for  the  arma- 
ment and  equipment  of  vessels  of  war  may,  and  generally  do,  require  numerous  modifi-  . 
cations  in  the  progress  of  the  work,  where  that  work  requires  years  for  its  completion. 
With  the  improvements  constantly  made  in  shipbuilding  and  steam  machinery  and  in 
arms,  some  parts  originally  contracted  for  may  have  to  be  abandoned  and  other  parts  sub- 
stituted ;  and  it  would  be  of  serious  detriment  to  the  public  service  if  the  power  of  the  head 
of  the  Navy  Department  did  not  extend  to  providing  for  all  such  possible  contingencies 
by  modification  or  suspension  of  the  contracts,  and  settlement  with  the  contractors. 
When  a  settlement  in  such  a  case  is  made  uj)on  a  full  knowledge  of  all  the  facts,  without 
concealment,  misrepresentation,  or  fraud,  it  must  be  equally  binding  upon  the  Gov- 
ernment as  upon  the  contractor;  at  least,  such  a  settlement  can  not  be  dLsregarded  by 
the  Government  without  restoring  to  the  contractor  the  property  surrendered  as  a  con- 
dition of  its  execution."  The  power  to  settle  with  a  contractor  by  means  of  a  supple- 
mental contract  has  been  limited  by  a  recent  opinion  of  the  United  States  Supreme 
Court  to  the  extent  of  holding  that  a  supplemental  contract  can  not  settle  unliquidated 
claims  against  the  Government  arising  from  a  breach  of  the  contract.  See  Cramp  &  Sons 
V.  U.  S.,  216  U.  S.,  503;  XVII  Comp.  Dec,  806,  810. 

Where  a  dredging  contract  provided  that  the  contractors  should  provide  their  own 
dumping  grounds  at  their  own  expense,  and  it  was  proposed  to  modify  the  contract 


CONTRACTS  VII  J   3.  315 

A  contract  provided  for  the  construction  of  the  Barnes  Landing 
Levee  and  the  Warfield  Point  Levee,  Mississippi,  and  it  was  pro- 
posed to  enter  into  a  supplemental  contract  for  the  construction 
of  40,000  cubic  yards  at  Ingomar,  Miss.,  instead  of  at  Barnes  Landing. 
Held,  a  supplemental  contract  for  that  purpose  would  be  illegal,  as 
Ingomar  was  a  different  locality  and  was  not  mentioned  in  the  adver- 
tisement for  the  work,  and  even  the  provision  in  the  advertisement 
authorizing  the  engineer  in  charge  to  ''designate  the  exact  locality" 

by  having  the  United  States  authorize  proceedings  in  its  name,  to  condemn  land 
for  a  dumping  ground,  and  it  was  questioned  whether  the  proposed  modification 
could  be  made  under  the  original  advertisement,  the  Attorney  General,  in  21  Op. 
Atty.  Gen.,  78,  said:  "The  advertisement  under  which  the  original  contract  was 
made  can  no  longer  be  regarded  as  of  any  material  importance,  since  the  work 
contracted  for  haa  been  partially  executed,  while  unforeseen  obstacles  have  arisen 
which  threaten  to  greatly  hinder  and  probably  prevent  its  complete  execution. 
Under  such  circumstances,  what  the  contractors  propose  is  a  modification  of  the  con- 
tract, which,  while  it  relieves  them  of  their  difficulty,  is  in  reality  more  favorable 
to  the  Government  than  the  original  contract.  Under  its  terms  the  contractors  were 
to  furnish  the  necessary  dumping  grounds.  But  under  the  terms  as  modified,  not  only 
will  the  contractors  practically  furnish  the  dumping  grounds  by  paying  the  United 
States  all  they  cost,  out  when  the  contract  has  been  fulfilled  the  United  States  will 
own  the  dumping  grounds,  and  will  be  pecuniarily  benefited  to  the  extent  of  their 
value.  Without  approving  the  precise  terms  of  the  proposed  supplemental  contract — 
which  I  think  may  be  advantageously  changed  in  some  particulars — the  advertisement 
pursuant  to  which  the  contractors  bid  for  and  were  awarded  the  original  contract  does 
not,  in  my  judgment,  offer  any  legal  difficulty  to  the  making  of  substantially  such  a 
supplemental  contract  as  is  suggested." 

In  21  Op.  Atty.  Gen.,  207,  it  was  held  that  a  clause  in  contracts  of  the  War  Depart- 
ment providing  for  future  modifications  of  the  contract  was  reasonable  and  proper, 
and  that  a  modification  of  the  contract  made  under  that  provision,  which  does  not 
prejudice  the  interests  of  the  Government  or  violate  any  statutory  provision,  is  not 
such  a  new  contract  as  must  be  preceded  by  advertisement,  citing  18  Op.  Atty.  Gen., 
101,  and  28  Ct.  Cls.,  332. 

In  VIII  Comp.  Dec. ,  549,  where  a  contract  provided  for  the  payment  of  the  entire  price 
stipulated  therein  upon  the  completion  and  delivery  of  a  lighthouse,  held  the  officers 
of  the  Government  were  not  authorized  to  modify  the  contract  by  providing  for  a 
partial  payment  of  the  amount  before  completion  if  such  modification  would  be 
prejudicial  to  the  interests  of  the  Government. 

In  IX  Comp.  Dec,  43,  a  cohtractor  having  failed  to  complete  the  work  provided  for  in 
the  contract,  held,  a  supplemental  contract  might  be  entered  into  with  him  and  his 
sureties  by  which  it  might  be  provided  that  the  work  should  be  completed  by  the 
sureties  and  payment  made  to  them  therefor,  and  also  from  the  amounts  retained 
from  payments  made  to  the  original  contractor  for  any  excessive  cost  thereof  less  the 
amount  of  any  damages  suffered  by  the  Government. 

In  XV  Comp.  Dec,  439,  it  was  held  that  where  it  becomes  necessary  for  the  exclusive 
benefit  of  the  Government  to  abandon  work  under  a  contract  and  otherwise  depart 
therefrom,  resulting  in  loss  and  damage  to  the  contractor,  and  a  supplemental  con- 
tract, providing  for  such  damages,  is  entered  into  between  the  parties  and  approved 
by  the  Secretary  of  War,  in  which  the  damages  to  the  contractor  are  agreed  upon  and 
fixed  in  a  lump  sum  as  a  fair  and  just  compensation  for  said  damages  and  in  full  liqui- 
dation thereof,  payment  of  the  sum  so  agreed  upon  is  authorized,  and  held,  further, 
that  the  contractor's  profit  on  work  under  a  contract  abandoned  by  the  Government 
for  its  exclusive  benefit  and  his  loss  resulting  from  additional  expenses  incurred  by 
reason  of  such  abandonment  are  proper  elements  of  damage.  On  the  latter  point 
see  also  Venable  Construction  Co.  v.  U.  S.,  114  Fed.  Rep.,  763. 

In  22  Op.  Atty.  Gen.,  437,  where  a  contract  had  been  made  for  the  transportation 
of  supplies  for  the  relief  of  destitute  people  in  the  Yukon  River  region  and  the  expe- 
dition was  abandoned  by  the  Government,  held  that  the  Secretary  of  War  had  the 
right  to  abandon  the  contract  and  decline  to  perform  it  if  he  deemed  that  the  public 
interests  so  required,  and  that  he  had  the  power  to  settle  and  pay  the  claims  of  the 
contractors  growing  out  of  the  abandonment,  and  this  regardless  of  whether  such 
claims  were  liquidated  or  unliquidated. 

Under  the  rule  laid  down  in  91  U.  S.,  322,  the  time  for  completion  of  a  contract 
may  be  extended  to  a  future  specified  date  provided  the  Government  interests  will 
not  be  thereby  prejudiced.     II  Comp.  Dec,  242,  635;  4  id.,  38;  8  id.,  104;  14  id.,  237. 


316  CONTRACTS   VII  J   3. 

at  which  the  work  should  be  prosecuted  would  not  authorize  him  to 
designate  a  locality  other  than  at  the  place  named  in  the  advertise- 
ment. C.  J{75j  Oct.  18,  1894'  So,  also,  where  a  contract  had  been 
made  for  dredging  ''hard  pan  with  bowlders  imbedded  therein"  and 
"soft  mud"  from  the  channel  at  the  mouth  of  Aswegatchie  River  and 
Ogdenburg  Harbor,  and  it  was  proposed  to  do  additional  dredging  of 
"fine  hard  sand"  from  the  "outer  bar  at  the  upper  entrance  to  the 
harbor."  Held,  that  the  localities  and  material  being  different  from 
those  set  out  in  the  advertisement  a  supplemental  contract  to  cover 
the  additional  work  would  be  illegal.  0.  H5Jf.,  June  18,  1895.  So, 
also,  where  a  contract  had  been  made  for  removing  rocks  and  bowlders 
from  a  river  within  the  width  of  40  feet,  and  the  work  having  been 
completed,  it  was  proposed  to  enter  into  a  supplemental  contract 
for  removing  the  rock  along  the  northerly  side  for  an  additional 
width  of  60  feet.  Held,  that  the  additional  work  not  being  a  modifi- 
cation of  the  original  contract,  nor  being  made  necessary  by  a  change 
in  the  work  covered  by  the  original  contract,  and  the  only  connection 
between  the  additional  work  and  the  original  work  being  that  it  is  to 
be  in  the  same  locality  alongside  of  it,  it  could  not  legally  be  covered 
by  a  supplemental  contract,  but  should  be  readvertised  for.  C.  8658, 
July  26,  1900.  So,  where  in  the  course  of  the  execution  of  a  contract 
for  the  dredging  of  a  river,  there  was  developed  certain  work  requiring 
to  be  done  which  was  not  embraced  in  the  work  contracted  for,  but 
was  quite  new  and  distinct,  viz,  the  removal  of  a  bar  formed  in  the 
river  after  the  work  under  the  contract  had  commenced — lield,  that 
the  same  could  not  be  included  by  consent  in  the  existing  contract, 
or  covered  by  a  supplemental  contract  entered  into,  without  adver- 
tising, with  the  same  contractor,  though  such  course  might  be  more 
advantageous  to  the  United  States,  but  that  the  law  must  be  com- 
plied with  by  a  new  advertisement  for  proposals  followed  by  a  sepa- 
rate formal  contract.  P.  Jt7,  257,  May  20,  1891.  A  contract  duly 
made  for  the  removing  of  a  wreck  in  Charleston  Harbor,  rendered 
difficult  of  completion  by  stormy  weather,  the  action  of  the  tides,  etc., 
can  not  legally  be  allowed  to  be  superseded  by  a  supplemental  con- 
tract for  partially  breaking  up  the  wreck,  to  be  entered  into  with 
the  same  party  without  advertising  and  to  provide  for  paying  the 
party  for  the  work  already  done  in  partially  removing  the  wreck  and 
for  relieving  the  contractor  from  further  liability  under  his  contract.^ 
P.  63,  256,  Jan.  16,  1894. 

Where  the  time  within  which  quartermaster's  stores  were  to  be 
furnished  to  and  received  by  the  United  States  was  limited  to  a  stated 
period,  Jield,  that  the  Secretary  of  War  would  not  be  authorized  to 
renew  or  extend  the  operation  of  the  contract  beyond  that  period, 
so  as  to  admit  the  delivery  of  additional  stores  under  the  same,  but 
that  for  such  additional  quantity  it  would  be  necessary  to  contract 
anew  in  the  regular  legal  mode,  upon  new  advertisement,  proposals, 
and  award.  R.  36,  463,  May  14,  1875.  Where  bids  were  invited 
for  30,000  yards  of  Kersey,  subject  to  an  increase  not  to  exceed  50 
per  cent,  and  the  prices  named  by  the  lowest  bidder  and  the  next 

1  In  Schneider  v.  U.  S.  19  Ct.  Cls.  551,  where  a  contract  had  been  made  to  furnish 
sandstone  for  a  public  building  for  $58,000,  and  it  was  sought  to  modify  this  contract 
by  substituting  marble  for  $143,000,  without  advertisement,  the  material  being  the 
sole  subject  matter  of  both  the  original  and  the  modified  contract,  held  the  latter  con- 
tract was  not  a  modification  of  the  former,  and  a  new  advertisement  should  be  had. 


CONTRACTS  VII   J   4.  317 

lowest  bidder  were  nearly  equal,  Tield,  that  contracts  could  not  be 
made  with  each  of  the  contractors  for  the  entire  amount  advertised 
for,  subject  to  a  possible  50  per  cent  increase.  A  fresh  advertisement 
would  have  to  be  made  to  cover  the  amount  over  that  stated  in  the 
orij]:inal  advertisement.     C,  2597 9 ^  Dec.  23,  1909. 

VII J  4.  The  following  cases  illustrate  the  nature  of  the  action  or  set- 
tlement that  may  properly  be  the  subject  of  a  supplemental  contract, 
it  appearing  in  each  case  that  the  supplemental  contract  would  not  he 
against  the  interest  of  the  United  States.^ 

To  provide  for  an  additional  expenditure  to  cover  the  cost  of  addi- 
tional masonry,  rendered  necessary  by  the  site  of  a  quartermaster  and 
commissarv  storehouse,  but  not  shown  on  the  plans  or  provided  for  in 
the  original  contract  for  the  building  of  thehouse.  C.2705,  Oct.27, 1896, 
For  excavation  found  necessary  m  addition  to  the  excavating  con- 
tracted for  in  the  construction  of  a  cofferdam,  and  piling  foundation 
for  a  lock.  C.  2927,  Feb.  10,  1897.  To  cover  expense  to  contractor 
of  maintenance,  etc.,  during  suspension  of  river  and  harbor  work 
which  was  directed  by  the  engineer  officer  in  charge  on  account  of  high 
water,  and  on  account  of  damage  to  the  levee  which  the  driving  of 
piles,  etc.,  by  the  contractor  might  cause.  C.  2927,  June  8,  1897. 
To  substitute  in  the  wings  of  a  lock  800  round  piles  60  feet  in  length 
for  that  number  50  feet  in  length.  C.  2927,  July  2, 1897.  To  provide 
for  necessary  "rock  excavation,"  as  well  as  "common  excavation," 
the  origiaal  contract  providing  for  "common  excavation"  only. 
C.  5244,  ^ov.  5,  1898.  To  substitute  brick  piers  and  curtain  walls 
for  pile  foundation  in  connection  with  the  erection  of  certain  build- 
ings. 0.  11041,  Aug.  13,  1901.  To  provide  for  depositing  dredged 
material  on  private  ground  instead  of  towing  same  to  public  dumping 
ground.  C.  3423,  Aug.  10,  1897.  To  provide  for  working  two  or 
three  shifts  of  men,  each  for  eight  hours,  instead  of  one  shift  only  for 
eight  hours,  as  provided  in  the  original  contract,  C.  9085,  Oct.  11, 
1900.  To  provide  for  the  vesting  in  the  United  States  of  the  title  to 
property  being  manufactured  for  the  United  States  and  being  paid  for 
by  partial  payments,  the  original  contract  failing  to  specify  where  the 
title  vested  after  partial  payments  began.  C.  94IO,  Dec.  I4,  1900. 
To  provide  for  the  purchase  at  a  reduced  price  of  mineral  oil  of  a  lower 
flash  test  than  required  by  the  original  contract.  C.  26846,  Oct.  7, 
1910;  28353,  May  17,  1911.  The  United  States  entered  into  a  con- 
tract for  the  filling  of  a  certain  piece  of  ground  to  a  certain  grade. 
Unexpectedly,  the  ground  subsided,  making  it  necessary  to  increase 
the  fill  in  order  to  reach  the  required  grade.  Held,  that  the  contract 
was  made  on  the  assumption  of  the  continued  and  practically  un- 
changed existence  of  the  foundation  for  the  fill;  that  is,  that  there 
would  be  a  foundation  for  the  proposed  fill  which  would  not  mate- 
rially subside,  and  that  a  supplemental  contract  could  properly  be 
made  to  cover  the  increase  of  fill  on  account  of  the  subsidence.  G. 
24531,  Mar.  5,  1909.  A  contract  was  made  for  the  construction  at 
Fort  Hancock,  N.  J.,  of  32  buildings  and  one  double  bake  oven  at  a 
stated  price  for  each  building,  etc.,  the  prices  aggregating  a  stated 
amount.  The  contract  provided  that  the  payments  should  be  made 
at  such  times  and  in  such  amounts  as  the  officer  in  charge  of  the  work 
should  elect,  based  upon  estimates  to  be  made  by  him  of  completed 

1  See  Satterlee  v.  U.  S.,  30  Ct.  Cls.,  31. 


318  CONTRACTS  VII   J   4. 

work,  and  that  20  per  centum  of  each  payment  should  be  retained 
until  the  final  completion  and  acceptance  by  the  Government  of  all 
the  work  under  contract.  After  several  of  the  buildings  had  been  com- 
pleted the  Government  occupied  and  continued  to  use  them.  Held, 
that  the  price  of  the  several  buildings  could  not  be  paid  in  full  until  all 
the  buildings  were  completed,  but  that  if  it  were  desirable  to  make  pay- 
ment in  full  for  each  building  when  completed  a  supplementary  con- 
tract could  be  made  providing  for  such  payment.  C.  Jf.825,  Aug.  23, 
1898.  A  contract  was  made  for  the  earthwork  construction  of  "mile 
24,"  Illinois  and  Mississippi  Canal.  At  the  time  the  specifications  of 
the  contract  were  prepared  it  was  assumed  that  the  work  could  be 
done  by  building  part  of  the  embankment  with  the  clay  and  gravel 
from  the  high  grounds  at  the  east  and  west  ends  of  the  mile  in  ques- 
tion, this  method  appearing  to  be  perfectly  feasible  and  practicable 
from  the  test  borings  which  had  been  made.  The  latter  were,  how- 
ever, made  in  very  dry  weather.  During  the  rainy  season  which  fol- 
lowed further  examination  developed  that  the  mile  for  two-thirds 
of  its  extent  was  a  peat  bog  of  great  depth.  The  construction  out- 
lined in  the  specification  could  not  be  successfully  executed  except  by 
excavating  this  peat  from  the  greater  part  of  the  mile  and  then  mak- 
ing the  slopes  and  bottom  of  good  water-tight  clay  and  gravel  which 
could  not  be  obtained  on  the  mile.  The  changed  conditions  ren- 
dered it  desirable  that  the  Government  should  not  enforce  the  con- 
struction outlined  in  the  specifications,  and  that  the  embankments 
be  made  of  other  material  which  must  be  transported  from  a  distance. 
The  contractors  asked  that  the  contract  be  annulled  without  preju- 
dice to  them.  Held,  that  there  was  no  legal  objection  to  a  supple- 
mental contract  annulling  the  original  contract  as  indicated.  G. 
5195,  Oct.  24 J  1898.  Where  the  progress  of  a  contractor  in  the  per- 
formance of  important  work,  contracted  to  be  done  by  him  in  con- 
nection with  the  improvement  of  the  Savannah  River,  was  quite 
unsatisfactory,  and  the  alternative  under  the  terms  of  the  contract 
appeared  to  be  either  the  absolute  annulment  of  the  contract  by  the 
United  States,  or  the  supplementing  of  the  operations  of  the  con- 
tractor by  work  carried  on  by  the  Engineer  Department  of  the  Army, 
the  contractor  paying  the  extra  expense  if  any — Tield  that  a  supple- 
mentary contract  made  with  him  to  the  effect  that  the  engmeer 
officer  in  charge  of  the  improvement  should  render  him  aid  in  the  per- 
formance of  the  work,  charging  to  him  the  actual  cost  of  such  aid 
and  deducting  it  from  the  paj^ment  to  be  made  him  under  the  con- 
tract, was  without  legal  objection.  P.  62,  451,  Dec.  2,  1893.  Where 
a  contract  was  made  to  manufacture  campaign  badges  according  to 
a  design  submitted  by  the  Government,  and  owing  to  the  failure  of 
the  Government  to  provide  suitable  designs  from  which  dies  might 
be  made  the  contractor  was  unable  to  make  the  badges.  Held,  a.i 
supplemental  contract  might  be  made  annulling  the  contract  and  re- 
imbursing the  contractor.  C.  19861,  June  7,  1906.  Where  a  con- 
tract had  been  made  for  the  construction  of  a  cabinet  with  files  andj 
drawers,  and  it  was  subsequently  desired  to  add  a  sliding  support  foi 
each  file  and  drawer,  Tield  that  the  original  contract  could  be  modifiedl 
to  this  effect  by  a  supplemental  contract.  C.  13401,  Oct.  4,  1902.  A 
contractor  may  by  a  supplemental  contract  be  granted  compensation! 
for  additional  time  and  attention  required  by  the  work  because  of  the] 
delay  in  its  execution  due  to  a  failure  or  error  on  the  part  of  the  Gov- 
ernment.    0.  23546,   Nov.  3,  1910;  27508,   Nov.  21,  1910.    Wlierei 


CONTRACTS  VII   J   4.  319 

a  contractor  became  unable  to  complete  his  contract  and  the  surety 
was  willing  to  complete  it,  held  there  was  no  legal  objection  to  a  tri- 
partite contract  between  the  United  States,  the  origmal  contractor, 
and  the  surety  company  that  the  surety  should  complete  the  work 
within  the  time  specified  in  the  origuial  contract  and  should  use  the 
plant  of  the  contractor  therefor;  that  the  price  to  be  paid  should  be 
that  specified  m  the  origmaJ  contract,  so  that  the  amount  already 
paid  under  the  original  contract  with  payments  to  be  made  should 
not  exceed,  for  the  entire  work,  the  amount  stipulated  in  the  original 
contract;  that  all  payments  due  or  to  become  due  under  the  terms  of 
the  original  contract  should  be  paid  to  the  surety  company,  and  that 
the  contractor  should  release  tlie  United  States  from  all  claims  on 
account  of  the  original  contract  or  work  performed  thereunder,  and 
should  look  only  to  the  surety  company  therefor.  C.  11328,  Oct.  3, 
1901;  28731,  July  25,  1911.  Where  a  contract  for  furnishmg  frozen 
beef  for  the  Army  in  the  Philippines  provided  that  the  beef  ''will  be 
admitted  free  of  customs  duties  and  it  appeared  that  at  the  time  the 
contract  was  made  the  law  in  force  provided  for  the  free  admission  of 
all  ^oods  and  merchandise  for  the  use  of  the  Army,  but  that  before  the 
period  covered  by  the  contract  had  expired  this  law  was  repealed. 
Held,  tliat  the  repeal  of  the  law  by  Congress  did  not  constitute  a  vio- 
lation of  the  contract  on  the  part  of  the  United  States  ;^  but  that  the 
provision  in  the  contract  for  free  admission  of  beef  was  an  undertakuig 
m  the  nature  of  a  warranty  by  the  United  States  as  a  contractor  that 
the  beef  would  be  admitted  free,  or  if  duties  were  imposed  that  the 
United  States  would  pay  them,  and  the  United  States  would  be 
legally  liable  to  the  contractor  for  duties  so  paid,  and  it  would  there- 
fore be  legal  to  enter  into  a  supplemental  contract  to  pay  an  addi- 
tional price  to  cover  the  duties.  C.  13893,  Aug.  18  and  Dec.  29,  1909. 
"VVliere  a  contractor  was  delayed  in  the  completion  of  his  contract  by 
reason  of  the  fault  of  the  Government  and  the  additional  worK 
required  would  be  sufficiently  secured  by  a  smaller  bond,  lield  there 
was  no  legal  objection  to  a  supplemental  contract  which  should  pro- 
vide for  an  extension  of  the  time  of  completing  the  contract,  for  a 
reduced  bond,  and  for  reimbursing  the  contractor  for  additional  ex- 
pense due  to  the  delay,  including  the  premium  required  on  a  new  bond 
with  a  surety  company.     C.  28472,  June  6,1911. 

A  contractor  was  authorized  by  the  terms  of  the  contract  to  take 
stone  from  a  quarry  owned  by  the  United  States,  it  being  provided 
in  the  contract  that  "operations  must  be  so  conducted  by  the  con- 
tractor as  to  leave  the  quarry  in  good  shape  for  continuing  the  work 
at  some  future  time,"  and  that  the  contractor  "must  leave  the  quarry 
in  good  condition,  with  nearly  vertical  faces,  at  the  termination  of 
the  contract."  The  operations  were  so  conducted  as  to  cause  a 
landshde  which  carried  such  a  large  amount  of  rock  and  debris  into 
the  quarry  that  the  contractors  were  compelled  to  abandon  it  and 
obtain  stone  elswehere.  The  contract  was  completed  in  all  respects 
except  as  to  leaving  the  quarry  clear.  Held,  that  if  it  was  in  the 
interest  of  the  United  States  the  clearing  of  the  quarry  might  be 
omitted  upon  entering  into  a  supplemental  contract  to  authorize 
the  deduction  from  the  money  due  of  the  value  of  the  quarrv-  C. 
10049,  Mar.  26,  1901. 

,  1  See  Deming  v.  U.  S.,  1  Ct.  Cls.,  190;  Brown  v.  U.  S.,  1  id.,  384;  Wilson  v.  U.  S.,  11 
id.,  513;  28  Op.  At.  Gen.,  121. 


320  ^  CONTKACTS   VII  J   5. 

The  river  and  harbor  act  of  August  11,  1888  (25  Stat.,  423),  pro- 
vided 'Hhat  it  shall  be  the  duty  of  the  Secretary  of  War  to  apply 
the  money  herein  and  hereafter  appropriated  for  improvement  of 
rivers  and  harbors,  other  than  surveys,  estimates,  and  gaugings,  in 
carrying  on  the  various  works  by  contract  or  otherwise  as  may  be 
most  economical  and  advantageous  to  the  Government."  Held,  that 
according  to  the  practice  under  the  above  provision  the  funds  appro- 

Eriated  might  be  applied  to  purchase  without  advertising  supplies  to 
e  used  in  carrying  on  river  and  harbor  works,  and  therefore  a  sup- 
plemental contract  might  be  entered  into  for  the  termination  of  a 
river  improvement  contract  and  the  purchase  of  the  plant  of  the 
contractor.     C.  2275,  May  12,  1896. 

Where  a  contract  for  installing  a  steam-heating  plant  provided  that 
the  plant  should  be  subjected  to  a  practical  test  during  the  coming 
winter,  but  the  winter  had  passed  before  the  plant  had  been  installed, 
lield,  that  the  test  having  become  impossible  of  performance  there  was 
no  legal  objection  to  paying  the  contractor  the  retained  percentages 
upon  his  giving  the  United  States  a  bond  that  the  plant  would  come 
up  to  a  certain  test  during  the  next  winter.     C.  13001,  July  22,  1902. 

VII  J  5.  Where,  in  addition  to  the  work  required  under  a  con- 
tract, certain  extra  work  is  required  by  the  officer  in  charge  which 
is  practicable  of  performance  only  by  the  contractor,  such  extra 
work  may  be  performed  by  the  contractor  without  advertising,^  and 
in  the  absence  of  an  agreement  as  to  the  price  the  reasonable  value 
of  the  services  and  material  may  be  paid  the  contractor .^  C.  5901, 
Mar.  4,  1899;  10920,  Aug.  3,  1901. 

VII  J  6.  A  contract  for  the  construction  of  a  building  provided 
that  the  excavations  were  to  be  of  such  depth  as  will  provide  absolute 
security  against  insecure  foundations,  and  that  whatever  excavation 
was  necessary  to  secure  such  depth  should  be  without  extra  charge. 
The  contractor  in  carrying  out  instructions  to  excavate  deeper  than  he 
and  an  expert  believed  necessary  found  quicksand.  Thereupon  the 
officer  in  charge  authorized  a  change  in  the  character  of  the  founda- 
tion to  meet  the  unexpected  condition  of  the  soil,  and  the  building 
was  then  completed,  field,  that  the  extra  cost  of  the  new  kind  of 
foundation  may  well  be  considered  as  an  ''extra"  within  the  meaning 
of  the  contract,  and  the  contractor  may  be  paid  for  it.  G.  9874,  Feb. 
25,  1901.  Where  the  footings  and  foundation  walls  of  a  certain 
building  had  to  be  carried  to  a  greater  depth  than  shown  on  the 
plans,  lield  that  the  contract  for  construction  of  the  building  proceeded 
on  the  assumption  that  a  stable  foundation  was  to  be  had  within 
reasonable  hmits,  and  that  as  the  contractor  had  to  excavate  to 
an  unreasonable  depth  to  reach  a  foundation  on  ledge  rock  he  was 
entitled  to  additional  compensation  for  the  extra  work  on  the  basis 
of  a  quantum  meruit.     0.  19437,  Apr.  2,  1906. 

Where  the  Government  agreed  to  furnish  crushed  stone  which  the 
contractor  was  to  haul  and  use  for  road  building,  and  Government 

^  See  II  Comp.  Dec,  373.  Where  a  contract  is  authorized  without  restriction  as  to 
cost,  the  Government  would  be  liable  for  "extra"  work  and  materials  accepted  by  it, 
and  also,  where  a  contract  is  made  under  a  general  appropriation,  the  contractor  is  not 
bound  to  know  the  condition  of  the  appropriation  and  the  Government  will  be  liable 
for  "extras,"  but  where  a  contract  on  its  face  assumes  to  provide  for  all  the  work 
authorized  by  an  appropriation  the  contractor  is  bound  to  know  the  amount  of  the 
appropriation,  and  can  not  exceed  it  by  doing  "extra"  work.  2  Ct.  Cls.,  151;  16 
id.,    528;  18  id.,  146,  496;  21  id.,  188;  31  id.,  126;  33  id.,  1. 

2  Grant  v,  U.  S.,  5  Ct.  Cls.,  71;  Ford  v.  U.  S.,  17;  id.,  60;  Wilson  v.  U.  S.,  23  id.,  77. 


CONTRACTS  VII   J   7.  321 

failed  to  provide  the  stone  in  sufficient  quantities,  making  it  necessary 
for  the  contractor  to  haul  stone  from  a  more  distant  point,  lield,  that 
the  contractor  was  entitled  to  consider  the  increased  expense  arising 
from  the  hauling  from  a  more  distant  place  as  an  extra  for  which  he 
shoidd  be  allowed  a  reasonable  compensation  in  a  supplemental 
contract.     G.  23546,  Nov.  8,  1910. 

Through  a  mutual  error  a  contract  was  so  worded  as  to  misstate  the 
real  agreement  and  intentions  of  the  parties  and  required  the  con- 
tractor to  perform  certain  work  not  intended  to  be  covered,  and  the 
contractor  offered  to  do  the  said  work  as  an  extra.  He  was  required 
to  do  the  work  by  the  quartermaster  on  the  assumption  that  the 
contract  was  properly  worded.  HeM,  that  as  the  contractor  was 
not  estopped  by  his  conduct  from  claiming  that  the  contract  mis- 
stated the  real  intentions  of  the  parties  and  as  the  facts  clearly 
established  his  claim,  he  was  entitled  to  be  compensated  for  the  extra 
work  performed.     C.  22238,  Oct.  24, 1907. 

VII  J  7.  Where  a  contract  provided  that  any  modification  of  the 
contract  should  be  approved  before  the  work  covered  by  the  modifi- 
cation was  performed,  but  in  violation  of  this  provision  the  extra 
work  was  performed  without  such  approval,  the  performance  of  the 
work  being  with  the  consent  of  the  ofhcer  in  charge,  Tield  that  the 
provision  in  question  was  waived  and  a  supplemental  contract  should 
De  approved.^     C.  23501,  June  27,  1908.     So,  where  a  contract  pro- 

^  In  Barlow  v.  U.  S.,  35  Ct.  Cls.,  514,  the  syllabus  is  as  follows: 

"Additional  work  or  better  material  than  that  required  by  the  contract,  ordered  by 
a  subordinate  without  authority  to  do  so,  must  be  regarded  as  voluntary  service  and 
no  contract  for  it  can  be  implied. 

"Where  alterations  or  additions  are  ordered  by  an  officer  or  agent  of  the  Government 
authorized  to  contract,  a  contract  will  be  implied  to  the  extent  of  the  benefit  which 
the  Government  has  received,  notwithstanding  a  provision  in  the  original  contract 
that  such  orders  must  be  in  writing, 

"Where  a  contract  provides  that  alterations  or  additions  must  be  ordered  in  writing, 
and  the  cost  thereof  agreed  upon  before  the  work  is  done,  the  principals  may  waive 
the  requirement.  In  Government  contracts  the  officer  who  has  authority  to  contract 
or  order  changes  must  be  regarded  as  a  principal." 

On  page  548,  idem,  the  court  said:  "Where  a  contract  expressly  provides  that  alter- 
ations or  additions  must  be  ordered  in  writing  and  the  cost  be  agreed  upon  before  the 
work  be  done,  the  principals  to  the  contract  in  ordinary  cases  between  individuals 
may  waive  the  requirement;  so  in  the  case  of  Government  contracts,  the  officer  who 
has  authority  to  order  or  agree  in  writing  must  be  considered  pro  hac  vice  as  the  prin- 
cipal, and  if  he  orders  a  change  orally,  and  the  contractor  acts  on  the  order  and  j^er- 
forms  the  extra  work,  the  parties  will  be  deemed  to  have  mutually  waived  the  require- 
ment.   (Ford's  Case,  17  Ct.  Cls.  R.,  75). 

"  In  a  few  words,  it  may  be  said  that  the  statutes  and  these  contractual  provisions  must 
be  construed  for  the  protection  of  the  Government  and  not  for  the  embarrassment  of  the 
contractors;  and  that  they  can  not  be  used  by  public  officers  to  cloak  breaches  of  con- 
tract or  justify  improper  interference  with  the  work,  or  to  acquire  in  anyway  an  unfair 
advantage  over  the  other  party.  It  is  for  the  interest  of  the  Government  that  its  good 
faith  and  business  responsibility  shall  be  upheld .  A  policy  which  precludes  legal  redress 
will  drive  every  prudent  and  responsible  contractor  out  of  the  field  of  competition." 

Sec,  also,  Venable  Construction  Co.  v.  U.  S.,  114  U.  S.,  776;  Grant  v.  U.  S.,  5  Ct. 
Cls.,  72;  Ford  v.  U.  S.,  17  id.,  60;  7  Comp.,  361.  So,  held,  that  the  provisions  of  a 
contract  for  constructing  a  vessel,  which  excludes  extras  of  every  description,  do  not 
apply  to  alterations  from,  or  additions  to,  the  plan  fixed  by  the  contract,  made  at  the 
request  of  the  Government.  Bestor  v.  U.  S.,  3  Ct.  Cls.,  425.  See,  also,  Moore  v. 
U.  S.,  46  Ct.  Cls.,  139,  where  the  contractor  was  allowed  the  cost  of  extra  work 
caused  by  the  faulty  plan  of  the  Government  engineer.  But  where  a  contract 
expressly  provided  that  it  could  be  modified  only  by  consent  of  the  Sicr>>tary  of 
the  Treasury,  held  that  the  contractor  could  not  recover  compensation  for  work  per- 
formed under  a  modification  ordered  only  by  the  officer  in  charge  of  the  work.  Haw- 
kins V.  U.  S.,  96  U.  S.,  689.  See  also  14  Ct.  Cls.,  514;  Kennedy  v.  U.  S.,  24  id.,  122; 
McLaughlin  v.  U.  S.,  36  id. ,138;  37  id.,  197;  Hyde  v.  U.  S.,  38  id.,  649. 

31106°— 12 21 


322  CONTRACTS   VII   J   8.  ' 

vided  that  any  work  required  that  was  not  included  in  the  specifica- 
tions should  be  ordered  in  writing,  lield  that  as  it  appeared  that  the 
work  was  ordered  by  the  officer  in  charge,  this  action  on  his  part  con- 
stituted a  waiver  of  the  contract  provision.  C.  10^49,  May  18, 1901; 
19487,  Apr.  2,  1906. 

VII  J  8.  A  supplemental  contract  can  not  be  entered  into  if  against 
the  interest  of  the  United  States.  The  following  cases  illustrate  the 
nature  of  the  consideration,  which  will  make  a  supplemental  contract 
in  the  interest  of  the  United  States: 

The  consideration  was  the  acceptance  at  a  reduced  price  of  mineral 
oil  which  did  not  meet  the  test  required  by  the  original  contract,  but 
was  suitable  for  Government  use.  G,  26846,  Oct  7,  1910,  The 
consideration  was  a  bona  fide  claim  for  compensation  for  extra  work, 
not  merely  a  colorable  one,  which  the  contractor  agreed  to  relinc[uish. 
C.  20423,  Sept.  25,  1906.  A  contractor  for  road  work  became  msol- 
vent  and  was  unable  to  proceed  with  his  contract,  and  his  backer, 
who  had  advanced  the  securities  upon  which  a  surety  company  had 
become  surety  on  the  contractor's  bond,  together  with  the  contractor 
and  the  surety  proposed  a  settlement  with  the  United  States  by  the 
terms  of  which  the  United  States  was  to  retain  all  percentages  and 
other  moneys  due  under  the  contract  and  receive  the  penal  sum 
of  the  bond,  provided  the  Government  released  the  contractor  from 
further  liabihty  under  the  contract.  The  cost  to  the  Government 
of  finishing  the  road  would  be  about  $5,000  over  the  aggregate  of 
the  above  sums.  Held,  that  as  the  contractor  was  insolvent  and 
therefore  it  would  be  impossible  to  recover  more  than  the  above  sums 
from  him,  and  as  the  effect  of  the  settlement  would  be  to  give  the 
United  States  control  of  the  above  sums  of  money  so  that  they  might 
be  apphed  on  other  more  important  work,  the  settlement  was  in  the 
interest  of  the  United  States,  and  a  supplemental  contract  as  proposed 
might  be  made.  C.  19802,  May  28,  1906.  Where  a  contract  for 
dredging  provided  that  300,000  cubic  yards  of  excavation  per  month 
must  be  made  as  a  condition  precedent  to  receiving  monthly  pay- 
ments, and  this  amount  of  excavation  the  contractor  was  unable  to 
accomplish,  although  carrying  on  the  work  to  the  best  of  his  abihty, 
and  the  contractor  was  constructing  another  large  dredge  to  enable 
him  to  reach  and  maintain  a  monthly  average  of  300,000  cubic  jrards, 
but  was  financially  embarrassed,  Jield,  it  would  not  be  against  the  inter- 
ests of  the  United  States  to  reduce  the  requirements  of  the  contract  from 
300,000  to  200,000  cubic  yards  of  excavation  per  month  for  a  Hmited 
period  to  enable  the  contractor  to  receive  monthly  payments  which 
would  result  in  the  early  construction  of  the  additional  dredge  and 
consequent  acceleration  of  the  work.  C.  12608,  Aug.  8, 1903.  Where 
a  contract  provided  for  partial  payments  for  completed  work  only, 
lield  that  if  the  work  would  be  expedited  by  the  payment  for  structural 
steel  as  soon  as  dehvered  on  the  ground  and  before  being  placed  in  the 
building,  and  if  it  would  be  otherwise  to  the  advantage  of  the  United 
States  to  make  such  payments,  it  would  be  legal  to  enter  into  a  supple- 
mental contract  so  as  to  provide  for  such  payments,  the  supplemental 
contract  to  provide  that  the  materials  upon  payment  should  become 
the  property  of  the  United  States.  G.  23642,  Nov.  20,  1909.  Where 
a  contract  called  for  furnishing  bed  casters  known  as  the  ''Faultless" 
and  the  contractor  was  unable  to  procure  that  particular  kind  of 
caster  fast  enough  to  comply  with  his  contract,  and  it  was  proposed 


CONTRACTS   VII  J   8.  323 

to  enter  into  a  supplemental  contract  authorizing  the  substitution 
of  a  caster  known  as  the  ''Legmount,"  held,  there  was  no  legal 
objection  to  such  a  supplemental  contract  provided  the  ''Legmount" 
casters  were  as  good  as  the  ''Faultless."  If  not  equalljr  good,  the 
supplemental  contract  should  provide  for  a  reduction  m  price  in  order 
that  the  contract  might  not  oe  against  the  interest  of  the  United 
States.  C.  23511,  June  29,  1908.  So,  lield,  also,  where  a  contract 
called  for  ''loose  native  hay"  and  it  was  proposed  to  substitute 
"Nebraska  baled  hay."  C.  20906,  Jan.  12,  1907.  So,  where,  owing 
to  a  vague  description  in  an  advertisement,  and  carelessness  on  the 
part  of  both  the  United  States  and  the  contractor,  a  stretcher  was 
furnished  that  was  not  the  exact  article  desired  by  the  United  States, 
held,  that  a  supplemental  contract  might  be  entered  into  for  the 
acceptance  at  a  suitable  price  of  the  article  actually  furnished. 
C.  2oIfi7 ,  Aug.  9, 1909.  Where  the  Government  sought  to  modify  the 
plans  for  the  construction  of  a  pier,  and  the  contractor  consented  to 
complete  the  pier  in  accordance  with  the  modified  plans  provided,  he 
was  paid  the  balance  due  on  the  contract  and  $2,500  in  addition  and 
provided  further  that  he  should  not  thereby  "prejudice  any  rights 
which  he  might  have  to  apply  to  Congress  for  rehef  and  repayment 
of  *  *  *  the  loss  necessarily  sustained  by  the  modification  of  the 
contract,"  held  that  there  was  no  legal  objection  to  a  supplemental 
contract  as  proposed,  but  recommended  that  the  supplemental  con- 
tract should  constitute  a  full  settlement  of  all  claims,  so  that  there 
could  be  no  claim  to  be  acted  on  by  Congress.  C.  15887,  Jan.  5, 190Jf.. 
Where  a  request  was  made  for  the  extension  of  a  contract  to  a 
specific  date,  and  it  did  not  appear  whether  the  proposed  extension 
would  be  in  the  interests  of  the  United  States,  recommended  that  the 
contractor  be  allowed  to  go  on  with  the  work,  leaving  the  question 
of  deduction  for  damages  to  be  determined  on  the  final  settlement  when 
the  work  was  completed.^  C.  13873,  Bee.  29,  1902;  13916,  Jan.  7, 
1903. 

^  WTiere  it  is  not  against  the  interest  of  the  United  States  a  contract  may  be  extended 
to  a  specific  date  by  a  supplemental  contract  in  writing,  signed  by  the  officer  in  charge, 
and  this  supplemental  contract  is  usually  required  to  be  approved  by  the  officer  whose 
approval  was  necessary  to  the  original  contract.  If  the  supplemental  contract  does 
not  provide  for  a  new  consideration  which  would  make  the  supplemental  contract 
to  the  interest  of  the  United  States,  it  should  be  expressly  provided  therein  that  the 
contractor  will  continue  liable  for  the  liquidated  damages,  li  any,  and  for  such  other 
damages  as  may  be  expressly  stipulated  for  therein,  if  any,  resulting  from  the  delay, 
and  that  such  damages  shall  be  deducted  in  settlement  with  the  contractor;  or,  if  the 
contract  provides  for  a  penalty  or  makes  no  provision  for  damages  it  should  be  expressly 
provided  in  the  supplemental  contract  that  the  contractor  shall  continue  liable  for  all 
extra  cost  of  superintendence  and  inspection  and  other  actual  damages  caused  the 
United  States  by  the  delay,  and  that  they  shall  be  deducted  in  settlement  with  the 
contractor.  As  such  a  supplemental  contract  will  preserve  the  United  States  from 
any  possible  damage,  the  extension  will  not  be  against  the  interest  of  the  United  States. 

Where  it  is  not  against  the  interest  of  the  United  States,  a  contract  may  be  indefi- 
nitdy  extended  by  the  officer  in  charge,  with  the  approval  of  the  officer  whose  approval 
was  necessary  to  the  original  contract,  by  waivmg  the  time  limit.  (A  formal  sup- 
plemental contract  is  not  necessary  for  the  purpose.  The  waiver  may  be  either  by  a 
letter  expressly  waiving  the  time  limit,  or  by  tacitly  allowing  the  contractor  to  go 
on  with  the  work  after  the  time  limit  fixed  by  the  contract  has  expired.)  Where 
such  a  waiver  is  made  by  the  United  States  the  contractor  will  remain  subject  to  all 
stipulations  of  the  contract,  including  those  in  regard  to  liquidated  damages,  if  any; 
or,  if  the  contract  provides  for  a  penalty  or  contains  no  provision  in  respect  to  damages, 
the  contractor  will  remain  liable  for  any  extra  cost  of  superintendence  and  inspection 
and  other  actual  damages  caused  the  United  States  by  the  delay  in  completion  of  the 


324  CONTRACTS   VII  J   9. 

VII J  9.  Even  after  the  expiration  of  the  time  limit  provided 
for  in  a  contract,  if  the  contract  is  still  in  force,  a  supplemental  con- 
tract extending  the  time  of  completion  of  a  contract  to  a  specified 
date  may  be  entered  into  without  advertisement  where  the  interests 
of  the  United  States  will  not  be  prejudiced.^  G.  U649,  July  1,  1903; 
15818,  Jan.  22,  1904-  So,  also,  where  a  contract  required  a  con- 
tractor to  commence  delivery  of  certain  articles  under  his  contract 
on  January  7,  held,  that  a  supplemental  contract,  without  advertising, 
providing  that  deliveries  should  commence  February  10,  might  be 
entered  mto  even  after  February  10  if  the  interests  of  the  United 
States  would  not  be  prejudiced.  C.  7484,  Dec.  28, 1899;  24207,  Mar, 
13,  1909. 

VII  J  10.  Even  after  waiver  of  the  time  limit  (not  an  extension  to 
a  specific  date)  partial  payments  may  be  made  in  accordance  with 
the  terms  of  the  contract,  as  the  effect  of  a  waiver  of  the  time  limit 
is  to  leave  all  other  provisions  of  the  contract  in  force.^  C.  15818, 
Jan.  22,  1904. 

VII  J  11.  A  party  entered  into  a  contract  with  the  United  States 
to  do  a  certain  amount  of  dredging  between  April  1  and  August  1, 
1895.  The  contract  contained  the  following  provision:  '^ Should  the 
time  for  the  completion  of  the  contract  be  extended,  all  expenses  for 
inspection  and  superintendence  during  the  period  of  the  extension 
shall  be  deducted  from  payments  due  or  to  become  due  the  contractor." 
He  did  not  begin  work  at  the  time  agreed  upon,  but  on^  his  own 
application  and  the  recommendation  of  the  engineer  officer  in  charge 
was  given  from  August  14,  1895,  to  January  1,  1896,  in  which  to  do  it. 
He  worked  from  the  14th  of  August  through  September,  October, 
and  November,  completing  part  only  of  the  work.  His  contract  was 
then  annulled  and  the  uncompleted  balance  of  the  work  let  to  another 
contractor.  On  the  question  whether  the  amount  paid  by  the  Gov- 
ernment for  "superintendence  and  inspection"  during  the  months 
last  named  should  be  deducted  from  payments  due  under  the  con- 
tract it  was  Jield  that  the  deduction  could  not  legally  be  made.  There 
had  not  been  an  "extension"  within  the  meaning  of  the  contract. 
The  work  was  to  be  completed  during  a  specified  period  of  four  months, 
and  during  that  length  of  time  the  Government  had  agreed  to  pay  the 
expenses  of  superintendence  and  inspection.  The  later  agreement 
changed  the  time  at  which  the  specified  period  should  begin,  but  did 
not  materially  lengthen  it.  The  extension  contemplated  by  the 
contract  was  any  period  of  time  in  addition  to  the  four  months  which 

contract.  As,  in  a  case  of  waiver  of  the  time  limit,  the  contractor  always  remains 
liable  for  liquidated  damages,  if  any,  or  extra  cost  of  superintendence  and  inspection 
and  other  actual  damages,  a  waiver  of  the  time  limit  will  usually  not  be  against  the 
interest  of  the  United  States.  Wherever  there  is  a  waiver  of  the  time  limit  there  will 
arise  an  implied  contract  to  complete  the  work  within  a  reasonable  time. 

The  regular  procedure  for  obtaining  an  extension  of  a  contract  to  a  specific  date, 
or  for  obtaining  a  waiver  of  the  time  limit,  is  for  the  contractor  to  apply  for  it  in  writing 
at  the  time  the  conditions  arise  which  threaten  to  occasion  delay  m  the  performance 
of  the  contract.  Such  application  should  be  made  in  sufficient  time  to  secure  the 
action  of  the  approving  officer  before  the  time  limit  has  expired.  It  may,  however, 
be  made  after  the  time  limit  has  expired  if  no  steps  have  been  taken  to  annul  or  cancel 
the  contract. 

^  See  VIII  Comp.  Dec,  104. 

2  See  VIII  Comp.  Dec,  104,  to  the  effect  that  the  waiver  of  the  time  limitation  in  a 
contract  leaves  all  other  provisions  of  the  contract  in  force,  and  for  the  performance  of 
the  work  provided  for  therein  the  contractor  is  entitled  to  the  price  stipulated  therefor 
in  the  contract,  less  the  amount  of  damages  arising  from  the  delay. 


CONTRACTS  VII  J  12.  325 

the  contractor  might  require  to  complete  the  work.  But  further 
held,  that  if  the  time  required  by  the  succeeding  contractor  to  com- 
plete the  job,  added  to  the  time  actually  occupied  b^^  the  first  con- 
tractor, exceeded  four  months,  then  the  expense  of  inspection  and 
superintendence  duiing  such  part  of  the  total  time  as  exceeded  four 
months  is  a  loss  sustained  by  the  Government  by  reason  of  the 
original  contractor  failing  to  fulfill  his  contract,  and  the  original  con- 
tractor is  liable  therefor.  C.  2400,  July  8,  1896.  Where  a  bond  given 
for  the  due  performance  of  a  contract  provided  that  the  surety  should 
be  bound  as  well  during  any  perioci  of  extension  of  said  contract 
that  may  be  granted  on  tne  part  of  the  United  States  as  during  the 
original  term  of  the  contract,"  held,  that  it  is  not  clear  that  an 
extension  of  the  time  of  commencement  without  a  corresponding 
extension  of  the  time  of  completion  would  be  an  ''extension  of  the 
contract"  within  the  meaning  of  the  bond.  C.  13906,  Jan.  3,  1903; 
?,  Nov.  21,  1906. 

VII  J  12.  Where  the  only  provision  of  a  contract  as  to  granting 
additional  time  for  commencing  or  completing  the  work  required  that 
such  additional  time  must  be  allowed  by  the  contracting  officer  with 
the  approval  of  the  Chief  of  Engineers,  lield,  that  the  Secretary  of 
War  has  no  authority  to  reverse  or  control  their  action  in  the  prem- 
ises.i     C.  20410,  May  5,  1908. 

VIII.  A  Jiead  of  a  department,  in  making  and  executing  a  public 
contract  acts  as  an  agent  of  the  United  States  and  in  the  absence  of 
express  statutory  authority  can  not  legally  relinquish,  by  a  supple- 
mental contract,  by  an  increase  of  compensation  to  be  paid  by  the 
United  States,  or  otherwise,  any  right  or  property  of  his  principal,  ij 
such  action  would  he  against  the  interest  of  his  principal.^    Congress 

^  In  Barlow  v.  United  States,  35  Ct.  Cls.,  514,  the  syllabus  is  as  follows: 

"Under  a  contract  which  provides  that  stone  to  be  furnished  by  the  contractor  must 
be  ^sandstone  of  quality  approved  by  the  engineer,^  the  decision  of  the  engineer  binds  the 
Government  as  well  as  the  contractor, 

"Where  a  contract  prescribes  ^sandstone  of  a  quality  approved  by  the  engineer,'  and  the 
superior  officer  who  entered  into  the  contract  requires  '  the  best  sandstone  which  can  be 
obtained,'  the  stone  required  is  not  the  stone  contracted  for,  and  the  contractor  can 
recover  for  the  difference." 

In  Baldwin's  case,  15  Ct.  Cls.,  297,  it  was  held  that  where  a  contract  provides  that 
the  receiving  officer  may  charge  the  contractor  with  loss  resulting  from  neglect  to 
deliver  at  the  prescribed  time,  subject,  however,  to  the  approval  of  the  department 
commander,  the  contractor  is  entitled  to  have  exercised  the  discretion  of  the  receiving 
officer  and  the  department  commander,  and  is  not  bound  by  the  action  of  the  receiving 
officer  who  is  ordered  by  the  post  commander  to  make  the  charge  and  in  obedience  to 
the  order  does  so  without  the  approval  of  the  department  commander. 

In  Kennedy  v.  United  States,  24  Ct.  Cls.,  122,  it  was  held  that  where  the  engineer 
in  charge  is  authorized  by  the  contract  to  extend  the  time  for  performance,  the  fact 
that  the  Chief  of  Engineers  approves  of  his  extending  it  to  a  day  specified  does  not 
compel  him  to  do  so. 

2  In  an  opinion  addressed  to  the  Secretary  of  War,  in  regard  to  an  application  for 
relief  by  a  contrac  or  for  work  on  the  Washington  Aqueduct,  Atty.  Gen.  Black  (9  Op., 
81)  remarks  as  follows:  *  'He  now  says  he  is  doing  the  work  at  a  loss,  and  asks  you, 
in  a  memorial,  either  to  give  him  a  larger  compensation  than  he  bargained  for  or  else 
to  release  him  from  the  contract.  You  have  no  authority  to  do  either  of  these  things. 
You  can  not  absolve  him  from  his  obligation  to  do  the  work;  and,  if  he  does  it,  you 
can  not  authorize  him  to  be  paid  for  it  at  higher  price  than  the  contract  stipulates  for. 
*  *  *  In  short,  you  have  no  power  to  relieve  him  from  the  hardship  he  complains 
of,  either  by  giving  him  damages,  by  releasing  him  from  his  present  contract,  or  by 
making  a  new  one.  *  *  *  if  the  contractor  quits  the  work  or  otherwise  violates 
the  covenants  he  has  made  with  the  Government,  he  must  do  so  at  his  own  peril  and 
that  of  his  sureties."    See,  also,  2  Op.  Atty.  Gen.,  482;  7  id.  62. 

In  15  Op.  Atty.  Gen.,  481,  it  is  said:  '  'It  is  asked  that  the  contractor  shall,  without 
any  consideration  therefor,  be  released  from  the  full  performance  of  his  contract  and 


326  CONTRACTS  VIII. 

alone  can  grant  relief.  Such  action,  however,  could  be  taken  if  a  con- 
sideration passed  to  the  United  States  sufficient  to  make  it  to  the 
interest  of  the  United  States.  C.  17234,  Dec.  16,  1904;  20875,  Jan. 
7, 1 907.  Therefore  the  Secretary  of  War  has  no  power,  without  proper 
consideration,  to  release  a  contractor  from  the  due  performance  of  his 
contract,  or  relieve  or  compensate  him  on  account  of  losses  suffered 
by  him  in  fulfilling  or  attempting  to  fulfill  his  contract  where  there 
has  been  no  breach  on  the  part  of  the  United  States.  C.  2^02,  June 
27,  1896.  To  release  an  ascertained  debt  due  to  the  United  States. 
C.  10550,  June  5,  1901.  To  release  a  contractor  from  his  obligation 
to  pay  liquidated  or  actual  damages.  C.  7314,  Oct.  16,  1900;  19801, 
May  31,  1906;  22270,  Oct.  28,  1907.  To  omit  to  charge  a  contractor 
with  the  difference  between  the  contract  price  and  the  price  which 
the  Government  was  obliged  to  pay  in  supplying  by  purchase  in  the 
market  articles  failed  to  be  furnished  according  to  contract.  R.  32, 
6,  May  27,  1871;  37,  4^7,  Mar.  28,  1876.  To  release  a  contractor 
from  his  contract  on  the  ground  that  he  has  encountered  unexpected 
difficulty  in  completing  it,  or  that  its  execution  will  involve  a  mate- 
rial pecuniary  loss,  in  other  words,  to  relieve  a  contractor  from  a  bad 
bargain.     C.  262,  Dec.  4,  1901;  2569,  Sept.  3,  1896.     To  release  a 

from  the  delivery  of  an  article  still  required  by  the  necessities  of  the  Government, 
when  (as  before  observed)  the  effect  of  such  a  course  will  be  to  give  the  contract  to  the 
highest  bidder  as  to  all  supplies  furnished  under  it.  This  would  be  virtually  to  give 
away  the  public  property  and  funds  and  to  disregard  the  law  relating  to  the  award  of 
contracts.  My  opinion  is  that  you  have  not  the  lawful  power  to  grant  the  relief 
desired." 

In  17  Op.  Atty.  Gen.,  370,  it  is  said:  "The  company  complains  also  that  because  of 
the  refusal  of  the  riparian  proprietors  to  allow  the  dredged  matter  to  be  put  upon  their 

E remises  it  is  compelled  to  carry  it  a  great  distance,  to  pass  through  several  draw- 
ridges,  etc.  This  also  was  a  thing  to  be  considered  by  the  conpany  before  under- 
taking the  work.  What  it  agreed  to  do  is  to  remove  and  deposit  the  material  in  such 
place  as  shall  be  approved  by  the  engineer  in  charge.  The  language  is  very  plain. 
The  obligation  is  perfect.  Can  the  company  be  discharged  from  performance  because 
the  transportation  is  more  difficult  and  to  a  greater  distance  than  they  at  first  expected? 
Upon  a  full  consideration  of  the  case  made  in  the  papers,  I  am  unable  to  discover 
sufiicient  grounds  to  justify  the  Secretary  of  War  in  releasing  said  company  from  its 
contract,  nor  do  I  think  he  has  the  power  to  do  so.  He  can  not  discharge  the  legal 
and  just  claim  of  the  Government  upon  the  company  that  it  shall  fulfill  its  obligations 
undertaken  with  knowledge  of  their  extent  and  requirements." 

In  V  Comp.  Dec,  632,  it  is  said:  '  'Undoubtedly,  upon  a  sufficient  consideration, a 
new  contract  could  legally  be  made  releasing  a  contractor  from  forfeiture  incurred,  but 
the  consideration  would  have  to  be  real,  substantial,  and  not  imaginary,  or  one  growing 
out  of  or  based  wholly  upon  the  failure  in  performance  of  the  conditions  of  the  original 
contract.  In  the  present  case  I  am  unable  to  see  how  the  contractors  have  been 
damaged  by  the  extension  of  the  contract,  or  what  real  benefit  will  accrue  to  the 
United  States  by  this  extension.  It  is  not  difficult  to  see  how  the  Government  and 
the  general  public  may  have  been  injured  by  the  failure  of  the  contractors  to  complete 
the  work  at  the  time  originally  agreed  upon.  The  presumption  is  that  the  work  was 
needed  or  it  would  not  have  been  undertaken;  therefore,  the  time  for  its  completion 
can  hardly  be  called  immaterial.  The  fact  that  the  total  cost  of  inspection  and  super- 
intendence will  not  be  increased  because  of  the  extension  can  not  be  regarded  as  a 
consideration  upon  which  to  base  a  contract.  Furthermore,  I  am  unable  to  see 
how  the  decreased  obstruction  to  the  channel  (caused  by  the  slower  progi'ess  of  the 
work)  which  was  the  direct  result  of  the  failure  of  the  contractors  to  comply  with  the 
obligations  of  their  contract,  and  which  failure  resulted  in  an  extension  of  time  for  the 
completion  of  the  project  at  the  request  and  for  the  benefit  of  the  contractors ,  and  presum- 
ably to  the  detriment  of  navigators  desiring  to  use  a  deeper  channel,  can  be  deemed 
a  sufficient  consideration  to  support  a  promise  to  waive  an  accrued  forfeiture.  To  hold 
that  this  can  be  done  would  be  to  make  the  contractors  the  beneficiaries  of  their 
wrong."    See,  also,  XII  Comp.  Dec,  409. 

In  XIV  Comp.  Dec,  253,  it  was  held  that  a  modification  of  a  contract  by  a  supple- 
mental contract  providing  for  an  earlier  partial  payment  to  the  contractor  than  ia 


CONTRACTS  VIII.  32? 

lessee  from  the  payment  of  rent  under  the  act  of  July  28,  1892  (27 
Stat.,  321).  C.  11731,  Dec.  10,  1901;  21212,  May  20,  1908.  To 
release  a  surety  company  from  a  bond  on  another  bond  being  pro- 
vided with  two  sureties  of  undoubted  financial  responsibility.  C. 
5352,  Sept.  28,  1900;  21991,  Aug.  29,  1907.  To  release  sureties  on 
the  bond  of  a  contractor  who  had  failed  to  perform  his  contract,  the 
sureties  representing  that  they  had  been  induced  to  enter  into  the 
bond  by  false  representations  made  to  them  by  the  contractor  and 
that  they  were  ignorant  of  what  was  required  of  a  bondsman.  R.  37, 
275,  Jan.  22,  1876;  C.  15601,  Dec.  11,  1903.  To  release  a  guar- 
antor from  the  obligations  he  had  assumed  in  a  guaranty  accompany- 
ing a  proposal.  C.  3489,  Sept.  3,  1897;  5462,  Dec.  14,  1898;  15932, 
Feh.  18,  1904.  To  cancel  or  nullify  a  bond  or  release  a  surety 
thereon.i  C.  1999,  Jan.  22,  1896;  13145,  Jan.  7,  1903;  22194,  Nov. 
18,  1907;  5352,  Aug.  22,  1900.  To  grant  relief  to  a  contractor  for 
potatoes  and  onions,  by  canceling  his  contract  or  increasing  the 
prices,  the  contractor  at  the  time  of  his  bid  having  expected  to  raise 
these  vegetables  on  his  own  farm,  but  the  entire  crop  and  others  hav- 
ing been  destroyed  by  a  hail  storm,  obligitig  him  to  buy  at  high 
prices  in  the  open  market.  C.  11208,  Sep.  21,  1901;  11259,  Sept.  21, 
1901.     To  accept  mineral  oil  which  does  not  come  up  to  the  tests 

specified  in  the  original  contract  is  not  authorized  without  a  new  consideration  there- 
for, and  that  the  changed  and  stringent  financial  condition  of  the  section  of  the  coun- 
try where  such  contract  is  to  be  performed  furnishes  no  consideration  moving  to  the 
Government  for  such  modification.     See,  also,  XV  Comp.  Dec,  55  and  256. 

In  VIII  Comp.  Dec,  106,  it  was  said  on  the  subject  of  the  right  of  a  Government  offi- 
cer to  waive  the  time  limitation  in  a  Government  contract : '  "There  can  be  no  question 
that  private  persons  may  waive  this  limitation  in  a  contract,  and  it  is  a  general  rule 
that  the  Government  has  the  same  power  in  respect  to  contracts  that  private  persons 
have.  (U.  S.  v.  Smith,  94  U,  S.,  217,  218.)  The  only  limitation  upon  the  Government 
of  which  I  am  aware  relates  to  the  means  of  executing  its  powers.  Its  officers  do  not 
possess  plenary  powers,  and  it  must  be  presumed  that  they  are  not  authorized  to 
sacrifice  its  interests.  Therefore  it  has  been  properly  held  that  a  Government  officer 
is  not  authorized  to  extend  the  time  of  a  contract  if  such  extension  will  operate  to 
release  the  contractor  or  his  sureties  from  liability  for  damages  or  be  otherwise  detri- 
mental to  the  interests  of  the  Government. " 

In  XIII  Comp.  Dec,  322,  it  was  held  that  when  work  is  not  completed  under  a  con- 
tract until  after  the  expiration  of  the  period  fixed  in  the  contract  for  its  completion, 
and  liquidated  damages  have  accrued  for  the  period  of  the  delay,  an  extension  of  time 
can  not  be  granted  after  the  expiration  of  such  period  and  after  the  completion  and 
acceptance  of  the  work  without  a  new  and  adequate  consideration,  as  it  would  operate 
as  a  release  or  waiver  of  the  liability  of  the  contractor  for  liquidated  damages  for  the 
delay.    See,  also,  XI  Comp.  Dec,  394;  XII  id.,  466;  XIV  id.,  237. 

In  General  Order  No.  167,  War  Department,  Oct.  10, 1905,  the  following  instructions 
were  issued  by  the  Secretary  of  War  for  the  guidance  of  officers  charged  with  the 
procurement  of  supplies:  '  '5.  Contracts  once  executed  will  be  strictly  construed,  and 
no  variation  from  standards  or  specifications  will  be  permitted  or  authorized.  If  it 
be  demonstrated  that  contract  requirements  are  unreasonable,  or  that  the  prescribed 
tests  are  not  practical,  or  that  for  any  reason  the  stipulations  can  not  be  rigidly  applied 
or  enforced,  such  contract  must  not  be  modified  but  may  be  annulled  with  the  approval 
of  the  Secretary  of  War,  if  for  the  best  interests  of  the  Government;  and  after  again 
inviting  competition  from  bidders,  who  are  fully  informed  of  the  changed  require- 
ments, a  new  award  and  contract  can  be  entered  into.  To  sanction  variations  or  to 
relax  stringency  in  any  particular  of  an  existing  contract  is  irregular  and  is  likely  to 
give  the  contractor  an  advantage  which  is  unfair  to  competitors  whose  proposals  were 
based  on  the  expectation  of  being  held  to  the  strictest  observance  of  the  published 
requirements." 

But  in  28  Op.  Atty.  Gen.,  121,  where  pending  the  execution  of  a  contract  the  tariff 
was  changed  so  as  to  impose  a  heavy  loss  on  the  contractor  if  compelled  to  carry  out 
his  contract,  it  was  held  that  the  Secretary  of  War  could  release  the  contractor  from 
his  contract,  although  the  effect  would  impose  a  pecuniary  loss  on  the  Government. 

^7  Op.  Atty.  Gen.,  62. 


328  CONTRACTS  IX  A. 

required  by  the  terms  of  the  contract,  although  it  may  be  a  suitable 
article  for  the  Government's  use.  C.  26846,  Oct.  7,  1910.  To  sur- 
render an  option  of  the  United  States  to  renew  a  contract  for  a  series 
of  years.  C.  18832,  Nov.  9,  1905.  So,  where  a  bidder  through  a 
clerical  error  proposed  to  furnish  600  jugs  of  lime  juice  at  75  cents 
instead  of  $1.50  per  jug,  and  with  knowledge  of  the  error  entered  into 
a  contract  and  completed  the  same,  lield,  that  while  the  mistake 
might  have  been  a  ground  for  declining  to  furnish  the  supplies,  the 
contractor  by  entering  into  the  contract  with  knowledge  of  the  error 
had  waived  it,  and  a  price  additional  to  that  named  in  the  contract 
could  not  be  paid.^  C.  8942,  Sept.  IS,  1900.  And  held,  to  the  same  effect 
where  through  an  error  in  calculation  the  lowest  bid  for  installing  heat- 
ing plants  was  $1,108.40  instead  of  $2,216.80,  and  the  next  and  lowest 
bid  was  for  $3,460,  and  the  lowest  bidder  with  knowledge  of  the  error 
entered  into  a  contract  and  completed  the  same.  C.  19506,  Apr.  17, 
1906.  A  contract  provided  that  'Hhe  United  States  shall  be  entitled 
to  the  fixed  sum  of  forty  dollars  as  liquidated  damages  for  each  and 
every  day's  delay  not  caused  by  the  United  States  *  *  *  ^nd 
that  the  collection  of  said  sum  may,  in  the  discretion  of  the  Secretary 
of  .War,  be  waived  in  whole  or  in  part."  Held,  that  the  provision 
purporting  to  give  the  Secretary  of  War  the  power  to  waive  the  liqui- 
aated  damages  is  inoperative  and  void  unless  under  the  circumstances 
of  the  case  it  would  be  to  the  interest  of  the  United  States  to  waive 
such  damages,  that  the  contracting  officer  and  the  contractor  have  no 
power  to  vest  the  Secretary  of  War  with  such  power  to  surrender  the 
rights  of  the  United  States  without  compensation.  Such  power  vests  in 
Congress  only.  C.  22730,  Feh.  10,  and  Dec.  7, 1908;  236^2,  Mar.  6,1911. 
Where  a  contract  contained  a  provision  "that  this  contract  shall  be 
subject  to  the  approval  of  the  Commissary  General  of  Subsistence, 
United  States  Army,  and  be  terminable  at  any  time  by  him,"  Tield, 
this  provision  was  mserted  for  the  benefit  of  the  United  States,  and 
does  not  authorize  the  terminating  of  a  contract  against  the  interests 
of  the  United  States.  C.  11259,  Sept.  21, 1901.  So,  where  a  contract 
with  a  telephone  company  required  the  company  to  render  a  certain 
service  at  the  rate  of  $4  a  month,  and  the  company  demanded  $5  a 
month  on  the  ground  that  it  had  filed  a  new  schedule  of  rates  which 
had  been  approved  by  the  Public  Service  Commission  of  the  State  of 
Washington,  held  that  the  Secretary  of  War  was  without  authority  to 
waive  the  rights  of  the  United  States  accjuired  under  the  contract, 
and  the  Public  Service  Commission  was  without  power  to  impair  the 
obligation  of  a  Government  contract.  C.  29280,  Dec.  8,  1911,  and 
Jan.  4,  1912. 

Where  the  same  contractor  had  two  contracts  for  furnishing  hay, 
the  prices  being  dift'erent,  and  hay  had  been  ordered  and  delivered 
under  the  low-priced  contract  and  payments  had  been  made  and 
accepted  under  the  low-priced  contract,  held  that  the  deUveries  of 
hay  could  not  be  subsequently  considered  as  made  under  the  high- 
pnced  contract.     C.  21418,  Apr.  22, 1907. 

IX  A.  The  lowest  and  next  lowest  bids  (from  the  same  place  of 
business)  for  supplying  25,000  mosquito  bars  were,  respectively,  45^ 

^  But  where  a  person  contracted  in  writing  to  sell  to  the  Government  a  quantity  of 
shucks  at  60  cents  a  pound  at  a  time  when  the  market  value  was  If  cents  a  pound,  and 
the  shucks  had  been  delivered  and  consumed,  held,  he  could  recover  only  the  market 
value  of  the  shucks.    Hume  v.  U.  S.,  132  U.  S.,  40G. 


CONTRACTS  IX   A.  329 

and  46^  cents  per  bar.  On  the  day  following  the  opening  of  bids  and 
before  the  award  was  made  these  bidders  claimea  that  errors  were 
made  in  coj^ying  their  bids  into  the  blank  proposals,  referring  to 
their  original  memoranda  to  show  that  the  price  intended  in  one  was 
75 i  cents  and  in  the  other  76^,  and  askea  to  have  the  corrections 
made.  To  grant  the  requests  would  make  another  party  the  lowest 
bidder,  at  67^  cents  per  bar.  Held,  that  the  mistakes  were  such  as 
to  exclude  consent  to  the  same  thing,  so  that  on  acceptance  of  the 
bid  there  would  be  no  true  contract — one  party  intending  one  thing, 
and  the  other  party  another  thing ;  that  therefore  the  proposals  con- 
taining the  erroneous  prices  should  not  be  treated  as  binding  upon 
the  parties  making  them.*  C.  6802,  July  31,  1899.  Similarly,  held, 
where  a  company  submitted  a  proposal  for  furnishing  48  handculFs,  the 
price  for  the  lot  being  $17.90,  and  it  appeared  that  before  the  award 
was  made  it  reported  that  it  had  intenaed  to  bid  $179,  and  that  the 
error  was  a  clerical  one,  and  it  further  appeared  that  the  next  lowest 
bid  was  $150.  C.  6958,  Mar.  4,  1899.  SiniiUarly,  held,  where  bids 
were  invited  for  furnisliing  1,250  gross  of  olive  drab  buttons  of  two 
sizes,  one-half  to  be  of  each  size,  and  the  lowest  bidder  bid  for  the 
total  quantity  without  naming  the  size,  and,  as  the  result  of  corre- 
spondence, it  appeared  that  the  larger  button  cost  considerably  more 

^  In  Pollock  on  Contracts,  under  the  head  of  "Mistake  as  excluding  true  consent, " 
it  is  stated  Ihat  "It  may  happen  that  each  party  meant  something,  it  may  be  a 
perfectly  understood  and  definite  thing,  but  not  the  same  thing  which  the  other 
meant.  Thus  their  minds  never  met,  as  is  not  uncommonly  said,  and  the  forms 
they  have  gone  through  are  inoperative;"  and  that  in  this  "class  of  cases  either 
one  party  or  both  may  be  in  error,  however  that  which  prevents  any  contract  from 
being  formed  is  not  the  existence  of  error  but  the  want  of  true  consent,"  and  that  in 
such  cases  "we  may  say  that  the  agreement  is  nullified  by  fundamental  error;  a 
term  it  may  be  convenient  to  use  in  order  to  mark  the  broad  distinction  in  principle 
from  those  cases  where  mistake  appears  as  a  ground  of  special  relief. "  Wald's  Pollock 
on  Contracts,  p.  582,  Third  American  Edition. 

Under  date  of  Jan.  14, 1891,  Attorney  General  Miller  (20  Op.  1),  where  an  advertise- 
ment was  made  for  proposals  for  installing  an  electric -light  plant,  and  one  of  the 
bids  was  $4,350,  and  the  bidder  asked  to  withdraw  the  bid,  claiming  that  it  had  been 
made  erroneously  instead  of  $9,350,  the  real  bid,  the  first  figure  4  being  substituted 
for  the  figure  9  through  a  clerical  error,  held,  that  the  bid  was  no  bid  at  all  and  ought 
not  to  be  considered,  and  that  if  accepted  it  would  not  be  binding  on  the  bidder. 

See,  also,  Moffett,  Hodgkins  &  Co.  v.  Rochester  (178  U.  S.,  373),  where  the  court 
held  that  a  bidder  was  relieved  on  account  of  a  serious  mistake  by  which  $1.50  per 
cubic  yard  was  bid  for  certain  excavation  for  which  $15  per  cubic  yard  would  have 
been  a  reasonable  charge,  the  court  holding  that  there  was  no  doubt  as  to  the  error 
having  been  made;  that  it  was  promptly  availed  of;  and  that  "when  this  was  done 
the  transaction  had  not  reached  the  degree  of  a  contract,  "  citing  with  approval  the  follow- 
ing extract  from  the  opinion  of  the  Circuit  Court:  "The  complainant  is  not  endeavor- 
ing 'to  withdraw  or  cancel'  a  bid  or  bond.  The  bill  proceeds  upon  the  theory  that 
the  bid  upon  which  the  defendants  acted  was  not  the  complainant's  bid;  that  the 
complainant  was  no  more  responsible  for  it  than  if  it  had  been  the  result  of  agraphia 
or  the  mistake  of  a  copyist  or  printer.  In  other  words,  that  the  proposal  read  at  the 
meeting  of  the  board  was  one  which  the  complainant  never  intended  to  make,  and 
that  the  minds  of  the  parties  never  met  upon  a  contract  based  thereon.  If  the  defend- 
ants are  correct  in  their  contention  there  is  absolutely  no  redress  for  a  bidder  for 
public  work,  no  matter  how  aggravated  or  palpable  his  blunder.  The  moment  his 
proposal  is  opened  by  the  executive  board  ne  is  held  as  in  a  o;rasp  of  steel.  There 
is  no  remedy,  no  escape.  If,  through  an  error  of  his  clerk,  he  has  agreed  to  do  work 
worth  a  million  dollars  for  ten  dollars,  he  must  be  held  to  the  strict  letter  of  his  con- 
tract, while  equity  stands  by  with  folded  hands  and  sees  him  driven  to  bankruptcy. 
The  defendant's  position  admits  of  no  compromise,  no  exception,  no  middle  ground. " 
See,  also,  the  decision  of  the  Comptroller  of  Nov.  7,  1911,  to  the  same  effect,  where, 
through  a  typographical  error,  a  bidder  submitted  a  bid  of  $285  per  1,000  feet,  instead 
of  $485  per  1,000  feet,  for  a  certain  cable. 


330  CONTRACTS  IX  A. 

than  the  smaller  one,  and  that  the  bidder  had  clearly  intended  to 
bid  only  upon  the  smaller  size  button,  he  erroneously  supposing  that 
only  one  size  was  called  for,  this  error  having  been  partly  contributed 
to  by  an  error  of  the  contracting  quartermaster  in  a  letter  written  to 
the  bidder  before  the  submission  of  bids.  C.  28279,  Dec.  5,  1911. 
Similarly,  lield,  where  a  bidder  offered  to  furnish  2,000  halyards  at 
19j^o  cents  per  pound,  which  would  make  the  cost  of  each  halyard 
11|^^  cents,  and  it  appeared  the  person  making  the  bid  had  been 
instructed  to  bid  not  exceeding  IQj^^j  cents  per  halyard,  but  as  rope  is 
usually  sold  by  the  pound,  had  inadvertently  written  the  word  pound 
instead  of  halyard.  C.  8258,  May  21  and  July  6,  1900.  Similarly, 
held,  where  the  lowest  bidder  offered  to  do  the  plumbing  in  a  set  of 
quarters  for  $2,997  the  next  lowest  bid  being  $4,460,  and  upon 
receiving  the  contract  for  execution  the  lowest  bidder  refused  to 
execute  it,  claiming  that  his  bid  was  only  on  half  the  set  of  quarters — 
the  set  being  double.  An  examination  of  the  details  of  the  bid  clearly 
supported  tliis  claim.  C.  8786,  Aug.  20, 1900.  Similarly,  held,  where 
the  only  bid  received  for  memorandum  books  was  for  5  cents  each, 
and  it  clearly  appeared  that  the  cost  of  manufacture  of  books  exceeded 
5  cents  each  and  that  the  price  of  5  cents  was  the  result  of  a  clerical 
error.  Similarly,  held,  where  the  lowest  bid  for  a  12  months'  sup- 
ply of  oats  was  $1.07  per  100  pounds,  and  at  the  opening  of  the 
bids  the  lowest  bidder  promptly  called  attention  to  his  bid  of  $1.07 
and  claimed  it  was  an  error  and  should  be  $1.17,  and  clearly  showed 
that  an  error  had  been  made  in  transposing  figures,  and  asked  to  be 
permitted  to  correct  the  bid  accordingly.  It  appeared  that  all  other 
bids  were  substantially  higher  than  $1.17.  C.  28493,  June  7,  1911. 
Similarly,  held,  where  bids  were  invited  for  constructing  ''one  bar- 
rack, two  double  sets  and  one  single  set  officers'  quarters,"  the  lowest 
bidder  offered  to  construct  ''four  buildings  numbered  on  plans  120-A 
and  121-E,  and  136-B"  for  $42,700,  not  intending  to  bid  on  one  of 
the  double  officers'  quarters,  and  on  the  same  day  bids  were  opened 
wrote  the  quartermaster  that  his  bid  was  not  on  all  the  buildings  but 
on  only  ''four  buildings,  one  single  officers'  quarters,  one  double 
officers'  quarters,  and  one  barrack,  making  in  all  four  buildings,"  and 
agreed  to  construct  the  additional  set  of  officers'  quarters  for  $6,500. 
The  claim  of  the  bidder  as  to  his  intention  was  supported  by  ample 
evidence.  The  next  lowest  bid  was  $49,243.  C.  8726,  Aug.  8,  1900. 
A  company  submitted  a  proposal  for  manufacturing  undershirts  at 
68f  cents  per  garment.  Before  the  award  was  made  the  company 
claimed  that  an  error  of  10  cents  a  garment  had  been  made  in  trans- 
ferring the  figures  for  the  cost  of  the  work  from  the  papers  made  out 
by  the  bookkeeper  (who  was  taken  sick  and  laid  up  for  10  days)  and 
who  discovered  the  error  when  he  returned  to  duty.  The  figures  of 
the  bookkeeper  showed  an  estimate  of  the  actual  cost  averaged  74^ 
cents  per  garment.  In  submitting  the  proposal  this  cost  was  erro- 
neously set  down  as  64|  cents  and  4f  cents  were  added  as  profit, 
making  the  bid  68f  cents,  whereas  it  should  have  been  78f  cents. 
The  price  was  so  low  that  the  officer  representing  the  Government 
would  have  noticed  it  was  probably  erroneous.  Held,  that  the  bid 
might  be  corrected  to  conform  to  the  intention  of  the  bidder,  and  then 
considered  along  with  other  bids.  C.  25048,  May  27,  1909.  The 
lowest  bid  for  constructing  quarters  at  Fort  D.  A.  Russell,  Wyo., 


CONTRACTS  IX   A.  331 

was  $49,000;  the  next  lowest  bid  was  $55,450,  and  the  estimate  of 
the  Quartermaster  General's  office  for  the  work  was  $60,158.  On 
the  day  following  the  opening  of  the  bids  the  lowest  bidder  wrote  to 
the  Quartermaster  General  stating  that  he  had  made  a  serious  mis- 
take in  failmg  to  add  any  percentage  for  profit,  and  subsequently 
declined  to  accept  the  work  unless  allowed  to  add  10  per  cent  for 
profit.  Held,  that  the  error  in  failing  to  include  the  percentage  for 
profit  was  a  fundamental  error  in  calculation,  and  that  the  bid  did 
not  express  the  true  intention  of  the  bidder,  which  was  to  make  a 
bid  covering  his  estimate  for  the  work  with  the  usual  percentage  for 
profit.  C.  19795,  May  28,^  1906.  The  lowest  bid  for  constructing  a 
» ''sewer  system,  water-distributing  system,  the  steel  tank  and  trestle" 
at  Fort  Miley,  Cal.,  was  $9,682;  the  next  lowest  bid  was  $15,821. 
The  lowest  bidder  refused  to  enter  into  a  contract  for  the  above  con- 
struction, claiming  that  liis  bid  was  a  mistake ;  that  it  was  intended 
to  be  on  the  sewer  system  only.  The  contracting  officer  stated  that 
when  the  lowest  bidder  asked  for  the  plans  ''he  asked  only  for  the 
sewer  plans,  stating  that  he  did  not  desire  to  figure  on  the  water- 
distributing  system  or  the  steel  trestle  and  tank."  Held,  that  the 
error  was  a  fundamental  one,  and  was  clearly  known  to  the  contract- 
ing officers  to  be  an  error  at  the  time  of  the  bid  and  that  the  guar- 
antors of  the  bid  could  not  be  held  on  their  guaranty.  C.  1244^, 
Apr.  21,  1902.     The  lowest  bid  for  arctic  overshoes  was  $1.5425  a 

Eair.  The  only  other  bid  was  $2.55,  and  previous  bids  for  regular  sizes 
ad  varied  from  $2.48  to  $2.87  a  pair.  Wlien  asked  as  to  the  source 
from  which  the  articles  would  be  furnished,  the  lowest  bidder  named 
the  rubber  company  which  had  made  the  bid  of  $2.55.  The  lowest 
bid  was  made  after  an  examination  of  only  the  sample,  which  had 
the  word  "Candee"  branded  on  it,  from  which  circumstances  the 
bidder  supposed  the  sample  to  be  what  for  many  years  had  been 
known  to  the  trade  under  that  name.  But,  in  fact,  there  was 
another  kind  of  arctic  overshoe  specially  manufactured  under  the 
same  name  and  selhng  for  about  $2.55  a  pair,  the  existence  of  which 
was  unknown  to  the  bidder.  The  specifications  which  had  not  been 
seen  by  the  bidder  clearly  showed,  however,  that  the  desired  article 
was  to  be  manufactured  to  order.  Held,  that  the  bidder  was  not 
entitled  to  withdraw  his  bid  on  the  ground  that  he  had  been  misled 
by  the  standard  sample,  but  was  entitled  to  withdraw  his  bid  on  the 
ground  that  the  bid  was  so  clearly  an  error  as  to  price  that  the  error 
was  a  fundamental  one  and  must  have  been  known  to  the  repre- 
sentatives of  the  Government,  and  the  bid  could  not  properly  be 
accepted  with  the  knowledge  of  its  being  erroneous.  C.  22568,  Jan. 
7,  1908. 

A  bidder  proposed  to  furnish  50,000  pairs  of  canvas  leggins,  the 
duck  to  be  "evenly  and  thoroughly  dyed  through  in  the  fiber,"  the 
manufacture  to  commence  30  days  from  date  of  award.  The  bidder 
requested  that  his  bid  be  not  considered  or  that  he  be  allowed  five 
months  in  which  to  commence  the  manufacture,  giving  as  a  reason 
for  the  request  the  fact  that  prior  to  submitting  the  bid  a  certain 
firm  had  promised  to  deliver  in  30  days  any  desired  quantity,  but  that 
a  few  days  after  opening  the  bids  this  firm  notified  the  bidder  that 
it  had  overlooked  the  requirement  as  to  the  material  being  dyed  ''in 
the  fiber,"  and  that  in  consequence  of  this  requirement  the  price 


332  CONTEACTS  IX  B. 

would  be  at  least  30  per  cent  higher  and  that  no  goods  in  any  quan- 
tity could  be  delivered  within  five  months.  Thereupon  the  bidder 
attempted  to  obtain  the  material  elsewhere  and  was  told  that  the 
firm  in  question  was  the  only  one  that  could  furnish  that  particular 
material.  Held,  that  if  investigation  showed  that  it  was  a  practical 
impossibility  to  procure  the  materials  within  five  months,  the  time 
for  commencing  manufacture  could  lawfully  be  extended  accord- 
ingly.    C.22587,Jan.6,1908. 

The  lowest  bid  for  the  construction  of  a  proposed  railroad  track  on 
Sandy  Hook  was  $46,000,  the  next  lowest  bid  being  $74,202.  Sub- 
sequent to  the  opening  of  the  bids  the  lowest  bidder  notified  the  con- 
tracting officer  that  an  error  had  been  made  in  its  bid,  and  submitted 
an  amended  bid  of  $67,000,  which  it  stated  was  ''based  on  correcting 
error  in  former  bid,  making  sum  $60,200,  and  adding  $5  apiece  for 
driving  1,360  piles,"  which  would  be  $6,800.  In  support  of  its  claim 
the  bidder  presented  the  original  lead-pencil  estimate  on  which  the 
bid  was  based,  on  which  appeared  an  item  for  ''40,000  feet  piling, 
$0.34^,  $1,380."  This  should  have  been  $13,800,  an  increase  of 
$12,420,  In  the  lead-pencil  estimate  the  total  of  the  items  w^as 
$40,725.60,  the  bid  submitted  being  $46,000;  the  difference,  about 
13  per  cent  of  the  estimate,  being  the  bidder's  profit.  If  the  amount 
of  the  error,  with  the  same  percentage  of  profit  thereon,  were  added 
to  the  bid,  it  would  be  slightly  over  $60,000.  The  amended  bid, 
however,  was  $67,000,  the  difference  being  the  proposed  charge  for 
driving  1,360  piles  at  $5  each,  and  profit  thereon.  With  reference 
to  the  last  item,  the  original  lead-pencil  estimate  included  an  item 
for  driving  piles  as  follows:  ''Driving  1,352  piles,  $2.20,  $2,974.40." 
It  did  not  appear  that  the  1,360  piles  referred  to  in  the  amended  bid 
were  additional  to  those  covered  by  the  lead-pencil  estimate.  Held, 
that  the  bidder  should  be  required  to  clearly  establish  his  error  by 
evidence  under  oath,  and  also  establish  that  the  lead-pencil  memoran- 
dum was  the  original  estimate  on  which  the  bid  was  based,  and  that 
this,  in  connection  with  the  comparison  of  the  bid  itself  with  other 
bids,  would  be  sufficient  to  show  that  the  error  occurred  as  claimed 
and  would  justify  the  reformation  of  the  bid.  Held,  also,  that  the 
bid  was  based  on  a  fundamental  error  and  did  not  express  the  real 
intention  of  the  bidder,  and  that  it  would  be  proper  to  aUow  the 
error  to  be  corrected  and  to  treat  the  bid  so  corrected  as  the  real  bid, 
and  that  the  corrected  bid  should  include  the  same  percentage  of 
profit  on  the  amount  of  the  error  as  was  calculated  in  the  bid,  but 
nothing  more.  Held,  also,  that  the  bidder  should  not  be  permitted 
to  amend  his  bid  to  include  the  proposed  charge  for  driving  1,360 
piles  at  $5  each,  as  this  item  was  covered  by  the  original  estimate  and 
it  did  not  appear  the  original  estimate  was  the  result  of  a  fundamental 
error.     C.  165U,  July  6,  1904. 

IX  B.  Where  bids  were  invited  for  "200  galls,  oil,  sperm,  in  gall, 
cans"  and  the  lowest  bidder  submitted  a  sample  labeled  "sperm  oil," 
and  no  tests  were  made  at  the  time  of  the  award,  and  the  bidder  was 
notified  that  his  bid  for  "200  galls,  oil,  sperm,  in  gall,  cans,  like 
sample"  was  accepted,  and  upon  delivery  of  the  oil  a  chemical  test 
revealed  that  the  oil  was  not  sperm  oil,  out  fish  oil,  and  the  sample 
previously  submitted  was  found  to  be  the  same  kind  of  fish  oil.  Held, 
that  the  sale  was  one  by  both  sample  and  description,  and  that  it  was 
not  sufficient  that  the  goods  delivered  conformed  to  the  sample,  but 


CONTRACTS  IX   C.  333 

tlicy  must  conform  also  to  the  description.^  G.  2^382,  Jan.  I4,  1909; 
26294,  Feb,  28,^  1910.  So,  where  bidder  offered  to  supply  500  dozen 
spools  of  * ^ basting  cotton"  confo lining  to  standard  sample,  held,  that 
ii  the  standard  sample  was  not  known  to  the  trade  as  ^'  basting  cotton  " 
and  was  not  such  in  fact  the  bidder  could  legally  withdraw  his  bid. 
a  23782,  Aug.  IS,  1908. 

IX  C.  A  bidder  offered  to  furnish  1,600  pounds  of  bacon  at  14| 
cents  for  $23.00  instead  of  for  $236.  The  error  was  due  to  the  care- 
lessness of  a  clerk  of  the  bidder.  The  next  lowest  bid  was  for  more 
than  $236.  A  contract  was  entered  into  to  furnish  the  bacon  at 
>^23.00.  iVfter  part  of  the  supplies  had  been  furnished  the  error  in 
t'ulculation  was  discovered.  Held,  the  contract  was  not  binding  on 
the  contractor,  and  a  supplemental  contract  could  be  entered  into  on 
the  basis  of  paying  for  all  supplies  already  furnished,  and  anotlior 
contract  made  with  the  actual  lowest  bidder.     O.  20323,  Sept.  4,  190G. 

X  A.  Where  a  contract  provided  for  installing  a  wireless-telegraph 
system  in  Alaska  between  two  points,  one  of  which  was  described  as 
"at  or  near  the  mouth  of  Delta  River  and  Bates  Kapids,"  lield,  that 
the  selection  of  a  point  75  miles  distant  from  the  mouth  of  the  Delta 
River  would  not  comply  with  the  terms  of  the  contract.  G.  12705, 
Am\  8,  1908. 

Wliere  a  contract  provided  for  the  erection  of  quarters  at  a  certain 
designated  place  in  a  post  which  all  bidders  were  urged  to  examiao 
before  bidding,  and  alter  the  contract  had  been  signed  the  United 
States  changed  the  site  of  the  proposed  quarters  to  a  location  about 
450  feet  from  the  original  site.  Held,  the  contractor  was  under  no 
legal  obligation  to  carry  out  the  contract  on  the  new  site,  even 
though  the  new  site  was  considered  by  the  United  States  to  be  more 
advantageous  than  the  old  one.     G.  20300,  Aug.  81,  1906.  ^ 

XB.  Wliere  a  contractor,  expressly  and  without  condition  or  res- 
ervation, engages  to  perform  a  specific  work  or  service,  he  is  bound 
by  his  contract,  although  its  execution  prove  to  be  beyond  his  power, 
if  within  the  scope  of  other  private  exertion  to  accomplish.  As 
wliere  one  contracted  to  remove  the  boiler  of  a  steamer  wrecked  in 
Chesapeake  Bay,  but,  after  extended  search,  was  unable  to  find  it — 
lidd,  that  he  could  not  legally  be  paid  the  amount  stipulated  in  the 
contract.  P.  39,  830,  Mar.  30,  1890.  Also,  where  a  contractor 
agrees  absolutely  to  furnish  potatoes  and  onions  at  a  stated  price, 
without  any  condition  limiting  them  to  those  he  shall  grow  or  which 
shall  be  grown  in  the  vicinity,  and  without  any  saving  exception 
on  account  of  failure  of  crops.  Held,  he  can  not  legally  be  excused 
from  the  performance  of  his  contract  by  reason  of  the  destruction 
of  his  own  crops  by  a  local  hail  storm.  C.  11259,  Sept.  21,  1901. 
Also,  where  a  contractor  agreed  absolutely  and  unconditionally 
to  supply  fresh  beef  at  the  Presidio  of  San  Francisco,  it  being  pro- 
vided in  the  contract  that  in  case  of  the  contractor's  failure  'Hhe  com- 
missary is  authorized  to  supply  by  open  purchase  any  deficiency 
resulting   from  such   failure"    and   that   the   contractor   ''shall   bo 

*  Section  14  of  the  uniform  sales  act,  which  is  the  law  in  practically  every  State,  is 
as  follows:  "  WTiere  there  is  a  contract  to  sell  or  a  sale  of  goods  by  description,  there  is 
an  implied  warranty  that  the  goods  shall  correspond  with  the  description,  and  if  tlie 
contract  or  sale  be  by  sample,  as  well  as  by  description,  it  is  not  sufficient  that  the  bulk 
of  the  goods  corresponds  with  the  sample  if  the  goods  do  not  also  correspond  with  the 
description." 


334  CONTEACTS  X  B. 

charged  with  any  excess  of  cost  over  that  of  furnishing  at  contract 
price/'  and  the  contractor  failed  to  furnish  beef  for  several  days  owing 
to  his  plant  being  partially  wrecked  by  the  earthquake  of  1906,  and 
the  contractor  sought  to  be  reheved  from  the  excess  of  cost  resulting 
from  the  open  purchase.  Held,  that,  as  the  contract  did  not  con- 
template beef  from  a  particular  herd  or  slaughtered  on  the  premises 
of  the  contractor,  such  that  if  the  herd  perished  or  the  plant  was 
destroyed  by  act  of  God,  the  contract  would  become  impossible  of 
performance  as  contemplated,  but  as  the  contract  simply  became 
somewhat  more  expensive  as  a  result  of  conditions  growing  out  of 
the  earthquake,  the  contractor  could  not  legally  be  relieved  of  the 
charge.  0.  19820,  June  9,  1906.  A  contract  for  supplying  certain 
hams  for  shipment  to  the  Phihppine  Islands  provided  that  the  hams 
should  be  cured  by  a  process  not  used  in  curing  hams  for  the  general 
trade.  To  be  acceptable,  they  must  have  been  in  process  of  cure  for 
not  less  than  60  days,  during  which  time  the  Umted  States  was  to 
have  the  right  of  making  various  inspections.  The  contract  further 
provided  ''that  in  case  of  failure  of  the  party  of  the  second  part  (the 
contractor)  to  dehver  any  article  as  stipulated,  the  party  or  the  first 
part  (the  United  States)  is  authorized  to  supply,  by  open  purchase 
or  otherwise,  any  deficiency  resulting  from  said,  failure,  the  articles 
so  procured  to  be  as  nearly  as  practicable  of  the  same  kind  and  quality 
in  all  respects  as  those  to  be  furnished  hereunder;  and  the  said  party 
of  the  second  part  shall  be  charged  with  any  excess  of  cost  over  that 
of  furnishing  at  the  price  named  herein."  Held,  the  contract  did  not 
relate  to  any  particular  hams  but  only  to  hams  cured  in  a  particular 
manner,  and  was  an  absolute  and  unconditional  contract  to  furnish 
hams  so  cured,  and  an  act  of  God  making  it  impossible  to  comply 
Hterally  with  the  contract  as  to  the  method  of  curing  did  not  reUeve 
the  contractor  from  the  obligation  to  substantially  carry  it  into 
effect  by  furnishing  other  hams  as  nearly  as  practicable  of  the  same 
kind  and  quality.  Held,  further,  that  if  the  Government  did  not 
give  the  contractor  an  opportunity  to  substantially  comply  with  the 
contract  after  its  Hteral  compliance  was  rendered  impossible  by  an 
act  of  God  the  contractor  would  be  relieved  thereby  from  any  further 
obhgation  of  the  contract.  C.  15152,  Aug.  31,  1903.  So,  also,  where 
a  contractor  in  the  Philippine  Islands  agreed  absolutely  and  uncondi- 
tionally to  supply  foreign  beef  and  mutton.  Held,  he  would  not  be 
relieved  from  his  contract  by  reason  of  a  breaking  down  of  the  refrig- 
erating machinery.  C.  18589,  Oct.  11,  1907.  Wliere  the  contractor 
in  a  Government  contract  for  installing  an  electric-fighting  system 
at  Fort  Wilfiam  McKinley,  Philippine  Islands,  agreed  'Ho  complete 
in  all  respects  the  work  called  for  under  this  agreement,  on  or  before 
the  date  stipulated  for  such  completion,"  without  an  exception  of 
any  kind,  held  that  the  contract  was  an  absolute  undertaking  to 
complete  the  work  by  the  stipulated  time,  and  that  the  contractor 
could  not  be  excused  for  his  failure  to  complete  the  work  within  the 
time  fixed,  the  failure  being  due  to  delays  in  procuring  material  from 
the  United  States  by  reason  of  strikes  and  washouts  of  railways  in  the 
United  States.  C.  21^016,  Nov.  16, 1908.  Where  a  contract  was  made 
to  enlarge  a  certain  levee,  and  al)out  one-seventh  of  it  was  washed 
out  before  work  was  entered  on,  held  that  as  the  work  to  be  per- 
formed under  the  contract  was  divisible,  and  as  much  the  larger  part 
of  it  was  intact  and  the  partial  destruction  had  not  rendered  the 


CONTRACTS   X  C.  335 

remaining  work  more  difficult  or  expensive,  the  partial  destruction 
would  not  relieve  the  contractor  from  his  obligation  to  enlarge  the 
remaining  portion  of  the  levee.     C.  15923,  Feb.  18,  1904. 

X  C.  A  contractor  was  required  by  the  terms  of  his  contract  to 
furnish  2,000,000  pounds  of  wild  Arizona  hay."  By  reason  of  a 
drought  and  consequent  failure  of  the  grass  crop  it  became  impossible 
to  carry  out  the  contract.  Held,  the  drought  constituted  an  act  of 
God,  and  the  contractor  should  be  excused  from  performance  of  his 
contract.     P.  56259,  Oct.  31,  1892. 

X  D.  Held  with  respect  to  the  Question  whether  the  contractor  for 
dredging  in  Great  South  Bay,  N.  Y.,  was  released  from  the  obligation 
to  finish  the  contract  by  reason  of  an  injunction  obtained  by  the  Lewis 
Blue  Point  Oyster  Cultivation  Co. — the  dredging  being  through  sub- 
merged lands  leased  by  the  State  to  that  company  for  oyster  culture, 
that  where,  as  in  this  case,  the  impossibility  is  created  by  law  and  is 
only  temporary,  the  obligation  is  not  extinguished,  but  only  sus- 
pended^ during  the  continuance  of  the  injunction;  and  that  the  United 
States  would  not  be  hable  to  the  contractor  for  any  damages  on 
account  of  the  suspension.     C.  22703,  Feb.  5,  1908. 

X  E.  Where  a  contractor  for  the  manufacture  of  certain  khaki  caps 
was  forced  into  bankruptcy  proceedings  before  the  date  fixed  by  the 
contract  for  its  completion  and  a  receiver  was  appointed,  lield  that  the 
fact  that  the  contractor  had  become  a  bankrupt  prior  to  the  time  set 
for  the  final  delivery  of  the  caps  did  not  relieve  him  from  the  necessity 
of  completing  the  contract  according  to  its  terms,  and  that  the  Govern- 
ment could,  in  accordance  with  the  terms  of  the  contract,  decline  to 
receive  deliveries  after  the  date  of  delivery  as  fixed  by  the  contract. 
C.  27968,  Mar.  13,  1911.  ^ 

XI  A.  A  bid  for  furnishing  forage  was  accompanied  by  a  duly 
executed  guaranty  that  in  case  the  bid  should  be  accepted,  the  bidder 
would  execute  a  contract  within  ten  days  after  notice  of  such  accept- 
ance. After  the  bids  were  opened,  but  before  the  bid  was  accepted, 
the  bidder  by  letter  withdrew  it.  Held,  that  the  bidder  could  not  be 
held  for  the  reason  that  the  bid  alone  did  not  constitute  a  contract 
under  section  3744,  R.  S.,  which  requires  a  contract  'Ho  be  reduced 
to  writing  and  signed  by  the  contracting  parties  with  their  names 
at  the  end  thereof."  Held,  also,  that  the  sureties  on  the  guaranty 
could  not  be  held  for  the  reason  that  the  bid  had  not  been  accepted 
as  required  by  the  condition  of  the  guaranty,  as  the  bid  was  with- 
drawn before  acceptance  and  having  been  withdrawn  could  not  there- 
after be  accepted.2     P.  65,  378,  July  7,  1894;  O.  419,  Oct.  3,  1894. 

1  7  Mass.  324;  9  Cyc.  627,  630;  Sherman  County  v.  Howard,  98  N.W.  666.  The  injunc- 
tion was  afterwards  dissolved,  it  being  held  that  the  title  of  the  lessee,  under  the  grant 
from  the  State,  was  subject  to  the  right  of  the  Federal  Government  to  take  the  sub- 
merged lands  for  the  improvement  of  navigation  without  compensation  to  the  State 
or  its  grantee. 

2  9  Op.  Atty.  Gen.,  174;  15  id.,  648,  651.  In  the  latter  opinion  the  Attorney  General 
held  that  as  the  guaranty  accompanying  the  bid  was  for  the  acts  of  the  bidder  "after 
being  notified  of  the  acceptance  of  said  bid, "  and  the  withdrawal  of  the  bid  having 
taken  place  prior  to  its  acceptance,  neither  the  bidder  nor  his  sureties  were  liable  upon 
the  guaranty.  He  intimated,  however,  that  a  recurrence  of  the  difficulty  might  be 
avoided  by  a  properly  worded  statute  or  guaranty.  In  a  later  opinion,  dated  August 
31,  1894  (21  Op.  Atty.  Gen.,  56),  in  an  opinion  rendered  the  Secretary  of  the  Navy, 
he  cited  these  opinions  as  the  rulings  of  the  Department  of  Justice  "in  the  absence 
of  any  special  statutory  provision ; "  but  referring  to  sec.  3719,  R.  S.,  which  specially 
relates  to  bids  in  the  Navy  Department,  and  requires  each  proposal  to  be  accom- 


336  CONTRACTS   XI  B. 

XI  B.  Paragrap)h  548,  Army  Regulations,  1910,  provides: ' 'Before 
the  time  for  opening  any  bidder  may,  without  prejudice,  withdraw 
from  competition  by  giving  written  notice  of  his  decision  to  the  officer 

panied  "by  a  written  guaranty  *  *  *  that  the  bidder  if  his  bid  is  accepted, 
■will  *  *  *  give  bond  with  good  and  sufficient  sureties  to  furnish  the  supplies 
proposed,"  said:  "Strictly  construed,  this  does  not  prevent  a  withdrawal  before 
acceptance.  Liberally  construed,  in  conformity  with  the  manifest  intent  of  the 
provision,  I  think  it  may  fairly  be  held  that  it  binds  the  bidder  to  stand  by  his  bid, 
at  least  after  the  hour  of  opening.  The  case  being  doubtful,  I  am  inclined  to  give 
a  liberal  construction  to  the  statute,  since  in  this  way  only  can  its  authoritative  con- 
struction be  obtained  from  the  courts.  I  would  therefore  advise  that  Mr.  Neville 
be  held  to  his  proposal,  and  that  no  right  of  withdrawal  on  his  part  be  recognized,  but 
that  he  and  his  guarantors  be  held  responsible. " 

A  statute  similar  to  sec .  3719,  R.  S. ,  referred  to  above,  regulates  the  letting  of  contracts 
by  the  War  Department.  The  acts  of  Apr.  10, 1878  (20  Stats.,  36),  and  Mar.  3, 1883  (22 
Stats.,  487),  authorize  the  Secretary  of  War  to  "prescribe  rules  and  regulations  to  be 
observed  in  the  preparation  and  submission  and  opening  of  bids  for  contracts  under 
the  War  Department.  And  he  may  require  every  bid  to  be  accompanied  by  a  written 
guaranty,  signed  by  one  or  more  responsible  persons,  to  the  effect  that  he  or  they 
undertake  that  the  bidder,  if  his  bid  is  accepted,  will,  at  such  time  as  may  be  pre- 
scribed by  the  Secretary  of  War  or  the  officer  authorized  to  make  a  contract  in  the 
premises,  give  bond,  with  good  and  sufficient  sureties,  to  furnish  the  supplies  pro- 
posed or  to  perform  the  service  required.  If  after  the  acceptance  of  a  bid  and  a  noti- 
fication thereof  to  the  bidder  he  fails  within  the  time  prescribed  by  the  Secretary 
of  War  or  other  duly  authorized  officer  to  enter  into  a  contract  and  furnish  a  bond 
with  good  and  sufficient  security  for  the  proper  fulfillment  of  its  terms,  the  Secretary 
or  other  authorized  officer  shall  proceed  to  contract  with  some  other  person  to  furnish 
the  supplies  or  perform  the  service  required,  and  shall  forthwith  cause  the  difference 
between  the  amount  specified  by  the  bidder  in  default  in  the  proposal  and  the  amount 
for  which  he  may  have  contracted  with  another  party  to  furnish  the  supplies  or  perform 
the  service  for  the  whole  period  of  the  proposal  to  be  charged  up  against  the  bidder 
and  his  guarantor  or  guarantors,  and  the  sum  may  be  immediately  recovered  by  the 
United  States  for  the  use  of  the  War  Department  in  an  action  of  debt  against  either 
or  all  of  such  persons."  Where  under  the  above  statutes  a  guaranty  accompanying 
a  bid  provided  that  if  the  bid  "be  accepted  *  *  *  within  sixty  days  *  *  * 
the  said  bidder  *  *  *  will,  within  ten  days  after  notice  of  such  acceptance 
enter  into  a  contract  with  the  proper  officer,"  etc.,  and  after  the  opening  of  the  bids 
but  before  acceptance  the  lowest  bidder  gave  notice  of  withdrawal  of  its  bid,  it  was 
held  by  the  Attorney  General  that  under  such  a  wording  the  bidder  could  withdraw 
his  bid  before  acceptance  without  rendering  the  guarantors  liable.  Card  23180, 
May  12  &  18,  1908.  Thereupon  the  form  of  guaranty  to  accompany  bids  was  changed 
to  read  as  follows,  so  as  to  hold  the  sureties  on  the  guaranty  even  in  case  of  a  with- 
drawal of  the  bid  before  acceptance.  "The  accompanying  proposal,  if  not  withdrawn 
prior  to  the  opening  of  said  proposal,  shall  remain  open  for  sixty  (60)  days  thereafter, 
unless  accepted  or  rejected  within  that  time;  and  if  it  be  accepted  in  any  or  all  of 
its  items  or  any  part  or  parts  thereof,  within  said  period  of  sixty  (60)  days,  the  said 

bidder , ,  will,  upon  written  notice  of  such  acceptance,  deliver  accepted 

items  within  the  time  and  in  accordance  with  the  terms  if  said  proposals  and  accept- 
ance, or  will,  if  so  required  by  the  United  States  or  its  legal  representative,  within 
—  days  after  wi-itten  notification  of  said  acceptance,  enter  into  contract  with  the 
proper  officer  of  the  United  States  for  the  delivery  of  the  accepted  items  in  accord- 
ance with  the  terms  of  the  said  proposal  and  acceptance  and  will  give  bond,  with 
good  and  sufficient  sureties,  for  the  faithful  and  proper  fulfillment  of  such  contract. 
And  we  bind  ourselves,  our  heirs,  executors,  administrators,  and  successors,  jointly 

and  severally,  to  pay  the  United  States,  in  case  the  said  bidder shall  withdraw 

said  proposal  within  said  period  of  sixty  (60)  days,  or  shall  fail  to  furnish  such  articles 
and  services  in  accordance  with  said  proposal  as  accepted,  or  shall  fail  to  enter  into 

such  contract  and  furnish  such  bond,  if  so  required,  Avithin days  after  said  notice 

of  acceptance,  the  difference  in  money  between  the  amount  of  the  proposal  of  said 

bidder on  the  articles  and  services  so  accepted  and  the  amount  for  which  the 

proper  officer  of  the  United  States  may  procure  the  same  from  other  parties,  if  the 
latter  amount  be  in  excess  of  the  former." 

In  Haldane  v.  U.  S.,  69  Fed.  Rep.,  819,  it  was  held  that  under  a  statement  in  a 
circular  that  a  bid  should  not  be  withdrawn  for  sixty  days  the  Government  had  no 
right  to  accept  a  bid  after  that  period. 

Par.  548,  Army  Regulations,  1910,  authorizes  a  bid  to  be  withdrawn  without  preju- 
dice before  the  time  for  opening  bids. 


CONTRACTS   XI   C.  337 

holding  liis  bid,  and  when  his  bid  is  reached  at  the  opening  it  will  be 
returned  to  him  or  his  authorized  a^jent  unread."  The  Government 
advertised  for  bids  for  certain  supplies,  the  bids  to  cover  the  whole 
or  an}^  one  or  more  of  the  articles.  A  bidder  submitted  a  bid  on  hay, 
straw,  and  oats,  and  on  the  day  previous  to  that  on  which  the  bids 
were  to  be  opened  wired  the  quartermaster  to  withdraw  his  bid  on 
oats.  Held,  that  the  word  ''unread"  in  the  above  regulations  applied 
only  to  the  bid  on  oats,  and  did  not  prohibit  the  reading  and  considera- 
tion of  the  bids  on  hay  and  straw.     C.  28967,  Sept  12,  1911. 

XI  C.  As  a  contract  under  the  War  Department  inter  alia,  is 
not  binding  until  reduced  to  writing  and  signed  by  both  parties,  as 
required  bv  section  3744,  R.  S.,  the  refusal  of  a  bidder  to  execute  a 
contract  after  the  acceptance  of  his  bid  did  not  render  him  personally 
liable  to  the  Government  for  damages  for  such  refusal,  although  his 
guarantors  would  be  liable  under  their  guaranty.  As  the  bidder  did 
not  sign  the  guaranty,  he  could  not  be  held  under  the  terms  thereof. 
C.  12385,  Apr.  17,  1902;  19523,  Apr.  11,  1906. 

XI  D  1 .  Wliere  a  bid  was  accompanied  by  a  guaranty  that  in  case 
the  bidder  should  fail  to  enter  into  the  contract  within  10  days  after 
notice  of  acceptance,  the  guarantors  would  pay  the  difference  in 
money  between  the  amount  of  the  bid  and  the  amount  for  which  the 
proper  officer  of  the  United  States  might  contract  with  another  party 
to  ao  the  work  if  the  latter  amount  should  be  in  excess  of  the  former, 
and  the  bidder  by  reason  of  a  fatal  illness  (an  act  of  God,  which 
excused  the  failure  to  enter  into  the  contract) ,  failed  to  enter  into  the 
contract  before  the  expiration  of  10  days,  and  the  administrator  of 
the  deceased  bidder  refused  to  enter  into  the  contract.  Held,  the 
guaranty  should  be  construed  strictly,  that  the  guarantors  did  not 
undertake  that  the  administrator  of  the  deceased  bidder  should  enter 
into  the  contract,  and  were  not  liable  on  the  guaranty  for  his  refusal 
to  do  so,  and  were  not  liable  for  the  failure  of  the  bidder  to  enter  into 
the  contract,  as  the  time  allowed  him  to  do  so  had  not  expired  on  the 
date  he  was  taken  ill.     C.  8904,  Sept.  6,  1900,  and  Sept.  25,  1901. 

XI  D  2.  Where  guarantors  have  undertaken  that  if  a  bid  shall  be 
accepted  the  bidder  will  ''within  10  days  after  being  notified  of  such 
acceptance,  enter  into  a  contract"  andf  give  bond.  Held,  that  noth- 
ing less  than  actual  notice  will  satisfy  the  terms  of  the  guaranty,  and 
that  if  the  acceptance  was  given  by  mail  the  10  days  should  not  be 
computed  from  the  date  the  notice  of  acceptance  reached  the  address 
of  the  bidder,  although  there  would  be  a  strong  presumption  of  actual 
notice  on  that  date,  but  from  the  date  the  bidder  actually  received 
the  notice.!     0.  8904,  Oct.  5,  1901. 

XI  D  3.  Proposals  were  invited  for  four  contemplated  river  im- 
provements. The  lowest  bid  for  one  of  the  works  was  accepted  and 
contract  entered  into,  but  no  action  on  the  proposals  for  the  other 
three  was  taken  at  that  time.  The  guaranties  accompanying  the 
proposals  were  conditioned  on  the  acceptance  of  the  bids  withm  60 
days.  After  the  expiration  of  the  period  named  in  the  guaranties 
the  acceptance  of  the  lowest  bids  on  two  of  the  works  was  recom- 
mended. Remarlced  that  there  was  no  legal  objection  to  such  accept- 
ance, provided  the  bidders  to  whom  it  was  proposed  to  award  the 
contracts  were  willing  to  enter  into  the  same,  but  if  they  declined 

^  See  to  same  effect  Haldane  v.  U.  S.  69,  Fed.  Rep.,  819. 
31106°— 12 22 


338  CONTRACTS  XI   E. 

to  enter  into  contracts  the  guaranties  could  not  be  enforced.  C.  371, 
Sept.  22, 1894. 

XI  E.  There  is  no  statute  or  regulation  requiring  a  guaranty  to 
accompany  a  bid,  but  under  the  act  of  March  3,  1883  (22  Stat.,  487), 
which  provides  that  the  Secretary  of  War  "may  require  every  bond 
to  be  accompanied  by  a  written  guaranty,"  etc.,  the  Secretary  may, 
and  in  practice  usually  does,  require  one.  C.  9061,  Oct.  16,  1900. 
Under  the  above  statute  there  would  be  no  legal  objection  to  pro- 
viding by  regulation  for  a  '^blanket  guaranty"  to  cover  all  bids  by 
a  particular  bidder  during  the  fiscal  year,  though  there  might  be 
practical  objections  owing  to  the  fact  that  the  contracting  for  the 
War  Department  is  not  centralized.  A  '^ general  guaranty"  so 
worded  tnat  it  might  be  submitted  with  any  bid  the  bidder  might 
make  during  the  fiscal  year  would  be  preferable.  Such  a  guaranty 
could  be  accepted  under  existing  regulations.  C.  9061,  Oct.  16,  1900; 
18880,  Nov.  28,  1905,  and  Oct.  12,  1906;  23330,  May  29,  1908. 

XI  F.  Paragraph  533,  Army  Regulations,  1895  (543  of  1910),  pro- 
vided that  '' guaranties,  signed  by  two  responsible  parties,  will  be 
required  to  accompany  proposals  whenever  in  the  opinion  of  the 
officer  authorized  to  make  the  contract  they  are  necessary  to  protect 
the  public  interests,  and  when  so  required  no  proposal  unaccompanied 
by  a  guaranty,  made  in  manner  and  form  as  directed  in  the  adver- 
tisement or  specifications,  will  be  considered."  Where  a  guaranty 
was  required"  to  accompany  a  proposal  and  none  was  furnished,  held 
that  the  contract  itself  would  nevertheless  be  valid,  the  regulation 
being  viewed  as  dkectory  only.  G.  6285,  Apr,  20,  1899;  7613,  Jan. 
26, 1900;  7956,  Mar.  31, 1900;  1^535,  Apr.  25, 1903;  20670,  Nov.  26, 
1906;  21707,  Jan.  21,  1907.  In  good  faith  to  other  bidders  a  bid 
without  a  guaranty  should  not  be  accepted.  C.  20670,  Nov.  26, 1906; 
21707,  June  21,  1907. 

XI  G.  Where  bids  were  required  to  be  accompanied  by  a  guaranty 
and  bidders  were  notified  that  no  proposal  unaccompanied  by  a  guar- 
anty would  be  considered  and  a  bid  was  made  without  a  guaranty 
but  the  following  entry  was  made  on  the  bid:  '^ Annual  guaranty  for 
1910  on  file,"  which  entry  referred  to  a  guaranty  on  file  in  the  Navy 
Department  and  which  applied  to  that  department  only,  and  upon 
being  so  notified  the  bidder  within  a  few  days  after  the  opening  of  the 
bids  filed  a  suitable  bond,  held,  the  bid  could  not  properly  be  con- 
sidered,    a  27062,  July  22,  1910. 

XI  H.  Specifications  and  instructions  for  the  use  of  bidders  had 
attached  to  them  a  form  of  guaranty  to  accompany  proposals,  but 
they  did  not  contain  any  distinct  provision  to  the  effect  that  a 
guaranty  would  be  required  or  that  no  proposal  would  be  received 
which  was  unaccompanied  by  a  guarantv.  Held,  that  an  unguaran- 
teed bid  might  be  accepted.     C.  21707,  Jan.  21 ,  1907. 

XI  I.  The  lowest  bidder  failed  to  furnish  a  guaranty,  one  for  $500 
being  specifically  required  in  the  instructions  to  bidders,  but  sub- 
mitted his  certified  check,  adding  to  his  proposal  and  signing  the 
following  statement:  ''In  lieu  of  above  we  submit  certified  check 
to  the  amount  of  guarantee."  Held,  that  as  the  certified  check  was 
submitted  in  lieu  of  the  guaranty  it  could  be  applied  to  secure  the 
United  States  on  the  conditions  specified  in  the  instructions,  and 
should  be  treated  as  a  substantial  compliance  with  paragraph  533, 
Army  Regulations,  1895,  which  provided  that,  "Guaranties,  signed 
by  two  responsible  parties,  will  be  required  to  accompany  proposals 


CONTRACTS   XI  J.  339 

whenever  in  the  opmion  of  the  officer  authorized  to  make  the  contract, 
they  are  necessary  to  protect  the  public  interests,  and  when  so 
required,  no  proposal  unaccompanied  by  a  guaranty,  made  in  manner 
jind  form  as  directed  in  the  advertisement  or  specifications,  will  be 
considered."  '     C.  7613,  Jan.  26,  1900. 

XI  J.  A  bidder  gave  his  certified  check  for  $500  in  lieu  of  a  guaranty, 
but  his  bid  having  been  accepted  failed  to  enter  into  the  contract, 
and  the  Government  thereupon  contracted  with  another  party,  at  a 
price  more  than  $500  in  excess  of  the  bid.  Held,  there  being  no 
written  contract  as  required  by  section  3744,  R.  S.  on  which  the 
bidder  could  be  held,  the  bidder  is  not  liable  to  the  Government 
beyond  the  amount  of  the  check  for  his  failure  to  enter  into  the 
contract.     C.  28576,  June  21,  1911;  28928,  Sept.  6,  1911. 

XI  K.  A  contract  was  entered  into  for  the  construction  of  two 
derricks,  the  specifications  stating  that  the  time  of  delivery  would  be 
an  essential  factor  in  determining  the  awards  of  the  contract,  and 
requiring  bids  to  be  accompanied  by  a  certified  check  for  $1,000  which 
the  specifications  stated  would  '^be  retained  until  the  completion  of 
the  contract."  The  contractor  failed  to  commence  the  execution  of 
his  contract,  causing  the  Government  to  relet  the  contract  at  a  price 
$2,150  in  excess  of  the  former.  Held,  that  the  intention  of  the  parties 
was  that  the  check  should  be  held  to  reimburse  the  United  States 
for  any  loss  it  might  suffer  by  reason  of  the  failure  of  the  contractor 
to  comply  with  his  contract,  and  that  the  check  should  be  cashed 
and  applied  on  the  loss  to  the  Government,  and  suit  instituted  for  the 
balance  of  the  loss  not  covered  by  the  check.     C.  15966,  Feb.  26, 1904-. 

XI  L.  The  successful  bidder  for  the  purchase  and  removal  of  certain 
buildings  deposited  the  sum  of  $225  with  the  quartermaster  as  a 
guaranty  for  the  faithful  performance  of  his  contract.  The  con- 
tract was  duly  entered  into,  but  the  contractor  failed  to  complete 
it  as  required  by  the  term  of  the  contract.  Held,  that  while  the 
money  deposited  could  not  be  forfeited  to  the  United  States  so  as  to 
require  it  to  be  deposited  in  the  Treasury,  still  it  was  held  charged 
with  a  certain  trust,  and  was  subject  to  be  applied  to  the  completion 
of  the  contract,  and  that  after  the  uncompleted  work  had  been  per- 
formed in  as  economical  a  manner  as  possible  the  remainder,  if  any, 
should  be  returned  to  the  contractor.     C.  29276,  Dec.  2,  1911. 

XII  A.  Section  3648,  R.  S.,  provides  in  part  that:  '^No  advance  of 
public  money  shall  be  made  in  any  case  whatever.  And  in  all  cases 
of  contracts  for  the  performance  of  any  service,  or  the  delivery  of 
articles  of  any  description,  for  the  use  of  the  United  States,  payment 
shall  not  exceed  the  value  of  the  service  rendered,  or  of  the  articles 
delivered  previously  to  such  payment."  Held,  the  payment  of  rent 
in  advance  for  lands  leased  by  the  Government,  of  which  it  has  been 
placed  m  possession  by  the  lessor  is  not  in  violation  of  section  3648, 
R.  S.2     C.  21506,  Mar.  17,  1908,  and  July  23,  1908. 

XIII  A.  Section  3679,  R.  S.,  provides  that — ^''No  department  of 
the  Government  shall  expend,  m  any  one  fiscal  year,  any  sum  in 
excess  of  appropriations  made  by  Congress  for  tne  fiscal  year,  or 

^  Par.  543,  A.  R.,  of  1910,  authorizes  the  use  of  certified  checks  by  providing  that 
"at  the  option  of  bidders  certified  checks  for  the  amount  of  the  guaranty  required 
may  be  received  in  place  of  the  written  guaranty.  These  checks  will  be  kept  in  a 
secure  place,  and  will  be  returned  to  bidders  by  the  purchasing  officer  when  no  longer 
required  to  protect  the  interests  of  the  Government." 

^SeeXIIComp.  Dec,  782. 


340  CONTRACTS  XIII  A. 

involve  the  Government  in  any  contract  for  the  future  payment  of 
money  in  excess  of  such  appropriations."  Held,  under  this  section 
that  all  contracts,  based  on  an  annual  appropriation,  by  which  the 
Government  may  be  bound  for  the  future  payment  to  contractors  of 
any  moneys  in  excess  of  the  appropriations  of  the  fiscal  year  are 
unauthorized  and  incapable  of  being  enforced  at  law,  so  far  as  they 
relate  to  such  future  payments.^  R.  31,  Jfi,  Nov.  11,  1870.  So, 
such  a  contract  purporting  to  be  for  the  '^ calendar  year"  1872  would 
be  unauthorized,  as  it  would  cover  parts  of  two  fiscal  years.  B.  SI, 
392,  May  18,  1871.  Military  contracts  (including  leases)  under  an 
annual  appropriation  will  thus,  where  practicable,  properly  be  made 
to  run  concurrently  with  the  fiscal  year  in  or  for  which  they  were 
made.  R.  35,  613,  Oct.  16,  1874-  So,  held,  that  a  contract  of  lease 
made  for  a  term  of  years  (as  three,  five,  or  ninety-nine  years),  at  a 
certain  stated  rent,  to  carry  out  an  annual  appropriation  would  be  in 
derogation  of  Section  3679,  R.  S.,  and,  unless  specially  authorized 
hy  some  other  statute,  inoperative  to  bind  the  Government  for  a  longer 
period  than  the  fiscal  year,  even  though  providing  that  the  payment 
for  rents  after  the  fiscal  year  should  be  contingent  upon  future  appro- 
priations.2  R.  32,  642,  May  27,  1872;  42,  677,  June  5,  1880;  43,  98, 
Nov.  28,  1879.  Held,  also,  that  a  lease  of  land  at  a  certain  rent  for 
an  indefinite  term,  payable  out  of  an  annual  appropriation,  would  not, 
in  the  absence  of  specific  statutory  authority,  be  legal  or  operative  be- 
yond the  end  of  the  existing  fiscal  year.  R.  36, 316,  Mar.  13, 1875.  So, 
of  a  proposed  contract  by  the  United  States  for  the  use  (for  a  fixed 
compensation)  of  a  ferry  for  an  indefinite  period,  the  appropriation 
being  an  annual  one.  R.  4^,  4^4i  ^^^'  -^^j  1879.  Or  for  the  rent  of 
telephones  for  ''one  year  and  thereafter  until  terminated"  by  writ- 
ten notice,  the  appropriation  being  an  annual  one.  C.  4722,  Aug.  3, 
1898.  Where  it  was  desired  to  occupy  premises  for  a  longer  term 
than  one  year,  the  appropriation  being  annual,  advised  that  a  lease 
should  be  taken  to  the  end  of  the  current  fiscal  year  at  a  certain 

^  In  Hooe  v.  U.  S.,  218  U.  S.,  322,  the  syllabi  are  as  follows: 

Congress,  proceeding  under  the  Constitution,  declares  what  amount  shall  be  drawn 
from  the  Treasury  in  pursuance  of  an  appropriation. 

Heads  of  departments  can  not  by  express  or  implied  contract  render  the  Govern- 
ment liable  for  an  amount  in  excess  of  that  expressly  appropriated  by  Congress  for 
the  subject  matter  of  the  contract. 

When  an  officer  of  the  United  States  takes  or  uses  private  property  without  author- 
ity of  law  he  creates  no  condition  under  which  the  Government  is  liable  by  reason  of 
its  constitutional  duty  to  make  compensation.  If  private  property  has  been  taken 
or  used  by  an  officer  of  the  United  States  without  authority  of  law  the  remedy  is  not 
with  the  courts,  but  with  Congress  alone. 

A  claim  for  such  compensation  does  not  rest  on  the  Constitution,  and  as  an  unau- 
thorized act  of  the  officer  does  not  create  a  claim  against  the  United  States,  the  Court 
of  Claims  has  no  jurisdiction  thereof  under  the  Tucker  Act  of  Mar.  3,  1887,  24  Stat., 
505. 

One  renting  a  building  to  a  department  of  the  Government  and  receiving  the  entire 
appropriation  for  rent  for  such  department  has  no  claim  against  the  Government  for 
any  amount  in  excess  of  the  appropriation,  even  though  he  demands  more  and  though 
he  expressly  excepts  a  part  of  the  building  from  the  lease  and  the  department  actually 
occupies  the  part  reserved,  nor  has  the  Court  of  Claims  jurisdiction  of  such  a  claim  as 
one  arising  under  the  provision  of  the  Constitution  that  private  property  shall  not  be 
taken  without  compensation. 

2  See  McCallum's  case,  17  Ct.  Cls.,  92,  to  the  effect  that  a  lease  for  a  term  of  years 
founded  on  an  annual  appropriation  is  binding  on  the  Government  only  until  the  end 
of  that  year,  with  a  future  option  from  year  to  year  till  the  end  of  the  lease.  See  also 
Geddes  v.  U.  S.,  38  Ct.  Cls.,  426,  and  authorities  cited. 


CONTRACTS  XIII  B.  341 

rent,  and  then  a  new  lease  be  entered  into  for  the  next  fiscal  year, 
and  so  on;  a  fresh  lease  being  necessaiy  for  each  fiscal  year,  though 
the  successive  leases  be  mere  repetitions  and  extensions  of  the  orig- 
inal lease  and  though  it  be  expressly  stipulated  in  the  original  lease 
that  the  United  States  shall  have  tne  privilege  of  such  extensions  if 
desired.  R.  32,  642,  May  27,  1872;  ^2,  677,  June  6,  1880.  But 
Jield,  that  as  the  main  object  of  the  statute  was  to  protect  the  United 
States  from  arbitraiy  expenditures  and  improvident  pecuniary  obli- 
gations on  the  part  of  the  executive  officials,  it  would  not  apply  to 
contracts  which  do  not  bind  the  Government  to  the  payment  of 
money,  and  therefore  would  not  preclude  a  lease  for  five  or  more 
years  of  land  required  for  military  purposes,  where  no  rent  whatever 
was  reserved  therein,  or  where  the  rent  reserved  was  a  mere  nominal 
sum  inserted  by  way  of  formal  consideration — as  $1  per  annum. 
R.  42,  564,  ^W'  Ij  l^^O;  676,  June  5,  1880.  Also,  where  an  appro- 
priation is  a  permanent  one,  a  contract  providing  for  payments  there- 
from may  be  made  covering  a  greater  period  than  the  current  fiscal 
year.  C.  14919,  July  9,  1903.  Also,  where  section  1661,  R.  S.,  as 
amended  by  the  act  of  June  22,  1906  (34  Stat.  449),  provided  that 
''the  sum  of  two  niUfion  dollars  is  hereby  annually  appropriated  to 
be  paid  out  of  any  money  in  the  Treasury  not  otherwise  appropriated, 
for  the  j)urpose  of  providing  arms,"  etc.,  for  issue  to  the  militia  "such 
appropriation  to  remain  available  until  expended,"  and  the  act  fur- 
ther provided  that  the  appropriation  should  be  apportioned  among 
the  States  and  Territories  on  a  certain  basis,  and  a  lease  was  entered 
into  for  five  years,  the  rent  to  be  paid  annually  in  advance  and  the 
lease  expressly  reserved  the  "option  on  the  part  of  the  lessee  (the 
United  States)  to  terminate  this  lease  at  any  time  within  said  term 
upon  giving  the  lessor  nmety  days'  notice  thereof,"  Jield,  that  in  view 
of  the  reservation  of  the  option  to  terminate  the  lease  it  was  legally 
unobjectionable.  O.  19798,  June  6,  1907.  And,  under  the  same 
statute  (34  Stat.  449),  where  a  lease  was  made  covering  parts  of  two 
fiscal  years  held,  it  would  be  legal  to  reserve  or  set  aside  from  the 
allotment  already  made  (which  is  a  permanent  appropriation)  a  suffi- 
cient sum  to  pay  the  rental  for  the  entire  period  of  the  lease,  and 
after  the  end  of  the  fiscal  year  to  reserve  or  set  aside  from  the  allot- 
ment then  available  (which  is  another  permanent  appropriation) 
the  rental  for  the  remainder  of  the  period  of  the  lease,  the  effect 
being  to  have  always  on  hand  for  that  purpose  a  sum  sufficient  to 
pay  all  future  rent  up  to  the  end  of  the  lease.  C.  21506,  Oct.  18, 
1907;  19798,  May  27,  1907.  But  in  a  case  involving  enlisted  men, 
where  the  payments  of  the  extra-duty  pay  authorized  by  section 
1287,  R.  S.,  was  omitted  to  be  appropriated  for  in  a  certain  fiscal  year, 
held,  that  notwithstanding  the  provisions  of  section  3679,  R.  S.  and 
the  act  of  May  1,  1884  (23  Stat.  17),  the  services  of  the  men  might 
be  required  and  accepted  under  the  express  understanding  that  the 
payment  therefor  depended  upon  Confess,  and  that  their  rendition 
of  service  would  not  give  them  any  claim  upon  the  United  States 
unless  Congress  should  appropriate  for  such  payment.  R.  55,  43, 
Sept.  6,  1886. 

XIII  B.  Section  3679,  R.  S.,  as  amended  by  the  act  of  March  3, 
1905  (33  Stat.,  1257),  is  as  follows:  "No  department  of  the  Govern- 
ment shall  expend,  in  any  fiscal  year,  any  sum  in  excess  of  appropri- 
ations made  by  Congress  for  that  fiscal  year,  or  involve  the  Grovern- 


342  CONTRACTS   XIII  B. 

mcut  in  any  contract  or  obligation  for  the  future  payment  of  money 
in  excess  of  such  appropriations  unless  such  contract  or  obligation 
is  authorized  by  law.  Nor  shall  any  department  or  officer  of  the  Gov- 
ernment accept  voluntary  service  ^  for  the  Government  or  employ 
personal  service  in  excess  of  that  authorized  by  law,  except  in  cases 
of  sudden  emergency  involving  the  loss  of  human  life  or  the  destruc- 
tion of  property.  All  appropriations  made  for  contingent  expenses 
or  other  general  purposes,  except  appropriations  made  for  the  ful- 
fillment of  contract  obligations  expressly  authorized  by  law,  or  for 
objects  required  or  autliorized  by  law  without  reference  to  the 
amounts  annually  appropriated  therefor,  shall,  on  or  before  the 
beginning  of  each  fiscal  year,  be  so  apportioned  by  monthlj^  or  other 
allotments  as  to  prevent  undue  expenditures  in  one  portion  of  the 
year  which  may  require  deficiency  or  additional  appropriations  to 
complete  the  service  of  the  fiscal  year;  ^  and  all  such  apportionments 
shall  be  adhered  to  except  when  waived  or  modified  in  specific  cases 
by  the  written  order  of  the  head  of  the  executive  department  or  other 
Government  estabfishment  having  control  of  the  expenditure;  but 
this  provision  shall  not  apply  to  the  contingent  appropriations  of 
the  Senate  or  House  of  Bepresentatives;  and  all  such  waivers  or 
modifications,  together  with  the  reasons  therefor,  shall  be  conununi- 
cated  to  Congress  in  connection  with  estimates  for  any  additional  ap- 
propriations required  on  account  thereof.  Any  person  violating  any 
provision  of  this  section  shall  be  summarily  removed  from  office 
and  may  also  be  punished  by  a  fine  of  not  less  than  one  hundred 
doUars  or  by  imprisonment  for  not  less  than  one  month."  The  pur- 
pose of  this  section  is  to  cause  the  expenditure  of  the  several  appro- 
priations for  the  support  of  the  executive  departments  of  the  Gov- 
ernment to  be  so  supervised  as  to  prevent  deficiencies  from  arising, 
except  in  a  case  of  emergency.  There  are  excluded  from  the  opera- 
tion of  the  statute  appropriations  ''for  objects  required  or  authorized 
by  law  without  reference  to  the  amounts  annually  appropriated 
therefor. "  Held,  that  section  3732,  R.  S.,  which  authorizes  purchases 
of  clothing,  subsistence,  forage,  etc.,  to  be  made,  where  an  appropriation 
has  been  exhausted,  provided  the  purchases  do  not  exceed  the  neces- 
sities of  the  current  year,  is  not  affected  by  section  3679,  R.  S.,  as 
amended,^  but  advised  that  purchases  should  not  be  made  under 
section  3732  while  Congi^ess  was  in  session,  but  Congress  should  be 
notified  of  the  deficiency.  C.  19675,  May  9,  1906.  So,  also,  held, 
that  section  3732,  R.  S.,  is  not  affected  by  section  3679,  R.  S.,  as 
amended  by  the  act  of  February  27,  1906  (34  Stat.,  49),  which  for 
present  purposes  is  substantially  the  same  as  noted  above.  C.  22225, 
Oct.  18,  1907.  So,  also,  paragraphs  496  and  550,  Manual  of  the  Medi- 
cal  Department,   which   provide   for   utilizing   the   services   of  the 

^  In  XI  Comp.  Dec,  622,  it  is  said:  "  '  Service '  means  the  performance  of  some  duty 
or  labor  for  another;  'voluntary  service,'  the  performance  of  some  duty  or  labor /reg^ 
or  ozone's  own  accord  for  another. 

"Where  the  title  remains  in  the  proposed  vendor,  without  any  a^eement  for  sale, 
the  labor  and  expense  incurred  by  said  proposed  vendor  in  the  installation  of  an 
appliance  on  a  naval  vessel  or  in  a  navy  yard /or  trial  purposes  only  is,  in  my  opinion, 
labor  and  expense  incurred  by  said  vendor /or  his  own  benefit  and  in  his  own  behalf  as 
an  incident  to  or  necessary  concomitant  of  a  proper  exhibition  of  his  appliance  for  sale, 
and  is  not  'service'  or  'voluntary  service'  within  the  meaning  of  section  3679  of  the 
Revised  Statutes  as  amended." 

2  See  XIII  Comp.  Dec,  97. 

3  See  XI  Comp.  Dec,  564. 


CONTRACTS   XIII   C.  343 

authorized  private  societies  for  the  aid  of  sick  and  wounded,  and  for 
using  the  services  of  civilia^  physicians,  nurses,  Utter  bearers,  cooks, 
etc.,  vohnitarily  offered,  are  not  affected  by  section  3679,  R.  S.,  as 
amended  by  the  act  of  February  27,  1906,  as  the  services  under  the 
above  paragraphs  are  rendered  in  time  of  war  and  great  pubhc  emer- 
gency and  witliout  the  expectation  of  reimbursement,  are  in  behalf 
of  the  sick  and  wounded  and  are  calculated  to  prevent  the  ''loss  of 
human  life"  mthin  the  meaning  of  the  statute,  and  they  include 
services  rendered  by  the  Red  Cross,  wliich  is  expressly  authorized  by 
law  and  fully  sanctioned  to  treaty  stipulation,  while  on  the  other 
hand  *' voluntary  services"  under  section  3679,  R.  S.,  as  amended, 
are  such  as  are  rendered  with  the  undei-standing  that  they  are  to  be 
made  the  basis  of  a  subsequent  claim  for  compensation.  C.  20866, 
Jan.  2,  1907.  The  acceptance  of  ''voluntary  service"  under  para- 
graph 3679,  as  amended,  means  that  the  service  is  rendered  under  an 
agreement  whereby  a  claim  for  payment  may  subsequently  be  made 
against  the  Government.  C.  20916,  Jan.  12,  1907.  Held,  that  the 
apportionment  under  section  3679,  R.  S.,  as  amended,  may  be 
monthly  or  c[uarterly,  or  in  part  monthly  and  in  part  quarterly,  or  for 
unequal  periods.  'The  apportionment  need  not  be  uniform  out  the 
amounts  allotted  to  each  month,  quarter,  or  other  unit  may  vary, 
and  held,  also,  that  it  was  not  the  intent  of  Congress  to  prohibit  the 
occurrence  of  deficiencies,  but  to  require  a  resort  to  such  measures 
of  supervision  as  will  be  calculated  to  prevent  their  occurrence  or  to 
minimize  their  amount.  C.  18240,  June  30,  1905.  Held,  further, 
that  under  section  3679,  R.  S.,  as  amended,  bills  incurred  in  one  ap- 
portionment period  in  excess  of  the  apportionment  may  be  paid  m 
the  next  or  in  any  subsequent  period,  provided  the  payment  is  within 
the  proper  fiscal  year.  C.  18240,  Feb.  2,  1906.  When  an  appor- 
tionment under  section  3679,  R.  S.,  as  amended,  has  been  made, 
it  is  the  duty  of  the  head  of  a  department,  as  for  instance  the  Quarter- 
master General,  to  see  that  the  apportionment  or  allotment  is  not 
exceeded,  but  a  disbursing  officer  under  the  Quartermaster  General 
would  not  be  charged  with  any  duty  except  in  the  case  where  the 
disbursing  officer  disbursed  an  entu-e  appropriation.  As  a  single 
disbursing  officer  would  control  and  disburse  no  more  of  the  appro- 
priation than  was  furnished  him  by  the  Quartermaster  General  on 
duly  approved  estimates  which  had  been  submitted  by  the  disburs- 
ing officer,  it  would  be  impossible  to  fix  upon  any  one  of  several  dis- 
bursing officers  the  responsibility  for  exceeding  the  apportionment 
in  any  particular  month  or  other  period  of  apportionment.  If  a  dis- 
bursing officer  incurred  obligations  in  excess  of  the  allotment  to  him 
he  could  be  tried  for  neglect  of  duty,  but  would  not  be  subject  to  the 
penalty  provided  by  the  act  of  Congress.     C.  18240,  July  11,  1905. 

Xlli  C.  Section  3732,  R.  S.,  provides  that— "No  contract  or 
purchase  on  behalf  of  the  United  States  shall  be  made,  unless  the 
same  is  authorized  by  law  or  is  under  an  appropriation,  adequate  to  its 
fulfillment,  except  in  the  War  and  Navy  JDepartments,  for  clothing, 
subsistence,  forage,  fuel,  quarters,  or  transportation,  which,  however, 
shall   not  exceed   the  necessities  of  the  current  year.  ^     Where  a 

^  Sees.  3679  and  3732,  II .  S.,  are  to  be  read  together  as  one  law.  15  Op.  Atty.  Gen.. 
124,  209.  These  two  sections  apply  to  the  public  service  in  general  and  must  yield 
to  special  provisions  relating  to  a  particular  department.  New  York  Cent.  R.  R. 
Co.  V.  U.  S.,  21  Ct.  Cls.,  4C8.  It  will  be  observed  that  section  3732,  R.  S.,  limits 
the  power  of  the  executive   department,  in  making   contracts  binding  upon  the 


344  CONTKACTS  XIII   C. 

purchase  of  subsistence  stores  had  been  made  in  excess  of  the  appro- 
priation, lield  that  it  is  well  settled  that  it  is  beyond  the  power  of 
an  officer  charged  with  making  purchases  to  issue  an  undertaking 
in  the  nature  of  a  certificate  of  indebtedness,  but  that  there  is  no 
legal  objection  to  advising  the  vendor  by  letter  of  the  essential 
incidents  of  the  purchase,  and  of  the  reason  why  payment  has  not 
been  made  on  delivery.^     C.  267S9,  Nov,  17,  1909. 

Although  public  contracts  can  not  in  general  be  made  in  advance 
of,  or  in  the  absence  of,  a  proper  appropriation  for  the  purpose,  or 
other  special  statutory  authority,  yet  from  this  rule  are  expressly 
excepted,  by  section  3732,  R.  S.,  military  and  (naval)  contracts  '^for 

Government,  to  two  cases:  First,  where  the  contract  is  authorized  by  law,  second, 
where  there  is  an  appropriation  sufficient  to  cover  the  amount  contracted  for.  Under 
the  first  case  it  has  been  held  by  the  Attorney  General  in  15  Opins.,  240,  that  to 
be  "authorized  by  law"  it  must  appear  that  express  authority  was  given  to  make 
such  contract,  or  that  such  authority  was  necessarily  to  be  inferred  from  some  duty 
imposed  upon,  or  from  some  authority  given  to,  the  person  assuming  to  contract  on 
behalf  of  the  United  States.  (See,  also,  3  Ct.  Cls.,  43.)  In  Chase  v.  U.  S.,  155  U.  S., 
500,  it  was  held  that  the  power  of  the  Postmaster  General  "to  establish  post  offices" 
did  not  "authorize"  him  within  the  meaning  of  section  3732,  R.  S.,  to  lease  prem- 
ises for  a  post  office  for  twenty  years.  Under  the  first  case,  where  the  contract  is 
authorized  by  law,  a  contract  may  legally  be  made  for  the  entire  project  authorized, 
the  contract  to  be  limited  by  the  amount  then  fixed,  if  a  limit  was  then  fixed,  even 
though  the  amount  covered  by  the  contract  is  in  excess  of  the  annual  appropriation, 
but  the  actual  payment  must  be  limited  to  the  amount  in  the  Treasury  appropriated 
for  the  project.  Under  such  a  contract,  appropriations  made  subsequent  to  the 
fiscal  year  in  which  the  contract  was  made,  could  be  used  in  paying  for  the  work 
contemplated  by  the  contract.  Under  the  second  case,  where  the  only  power  to  enter 
into  a  contract  arises  from  the  existence  of  an  appropriation  sufficient  to  cover  the 
amount  contracted  for,  the  power  to  contract  is  limited  by  the  appropriation.  A 
contract  for  a  larger  amount  than  appropriated  is  void.  As  soon  as  the  appropriation 
is  exhausted  the  power  to  contract  is  at  an  end.  If  a  subsequent  appropriation  is 
made  this  gives  rise  to  a  new  power  to  contract.  Ill  Comp.  Dec,  438;  IV  id.,  318;  V 
id.,  968;  IX  id.,  422;  X  id.,  284;  XIII  id.,  478;  XIV  id. ,755;  4  Op.  Attv.  Gen.,  600;  9 
id.,  18;  15  id.,  235;  19  id.,  654;  Bradley  v.  U.  S.,  98  U.  S.,  133;  Chase  v.  U.  S.; 
155,  id.,  500.  Under  the  second  case  a  contract  in  excess  of  the  appropriation  would 
not  be  binding  even  though  the  contract  expressly  provided  that  it  should  be  con- 
tingent upon  future  appropriations.  In  15  Op.  Atty.  Gen.,  235,  it  was  held  that  such 
a  contract  would  not  "be  binding  so  far  as  to  affix  itself  to  future  appropriations,  even 
if  it  is  subject  to  the  contingency  that  such  appropriations  shall  be  made,"  referring 
to  an  opinion  of  Attorney  General  Mason  in  4  Op.,  490,  where  such  a  contract  proposing 
to  bind  the  Government  to  payments  in  advance  of  appropriations  "was  held  to  be  of 
no  validity,  even  though  it  provided  that  such  contract  should  depend  for  its  validity 
upon  the  contingency  that  an  appropriation  should  be  made  and  such  appropriation 
was,  in  fact,  thereafter  made."  (See  also,  Bradley  v.  U.  S.,  98  U.  S.,  104;  IX  Comp., 
424.) 

"WTiere  a  contract  is  authorized  without  restriction  as  to  cost,  the  Government  would 
be  liable  for  "extra"  work  and  materials  accepted  by  it,  and,  also,  where  a  contract 
is  made  under  a  general  appropriation,  the  contractor  is  not  bound  to  know  the  con- 
dition of  the  appropriation  and  the  Government  will  be  liable  for  "extras,"  but  where 
a  contract  on  its  face  assumes  to  provide  for  all  the  work  authorized  by  an  appropriation 
the  contractor  is  bound  to  know  the  amount  of  the  appropriation  and  can  not  exceed 
it  by  doing  "extra"  work.  2  Ct.  Cls.,  151;  16  id.,  528;  18  id.,  146,  496;  21  id.,  188; 
31  id.,  126;  33  id.,  1. 

2  The  practice  of  issuing  certificates  of  indebtedness  was  disapproved  in  G.  0.  77, 
A.  G.  0.,  July  24, 1873,  in  the  following  language:  "Disbursing  officers  are  not  allowed 
to  issue  vouchers,  which  act  as  due  bills  against  the  United  States,  for  unpaid  accounts. 
The  only  exceptions  under  the  foregoing  will  be  the  issuance  of  a  certified  statement 
of  personal  services  and  of  wages  due,  in  the  case  of  an  employ^  discharged,  and  not 
paid  at  time  of  discharge  for  want  of  funds."  But  the  Secretary  of  War  may  properly 
issue  an  order  authorizing  paymasters  to  make  a  certificate  upon  the  accounts  of 
officers  in  the  following  form :  ' '  The  within  account  is  believed  to  be  correct,  and  would 
be  paid  by  me  if  I  had  public  funds  available  for  that  purpose."  Such  certificate 
would  not  come  under  the  prohibition  of  section  3679,  R.  S. 


CONTRACTS  XIII  D.  S45 

clothing,  subsistence,  forage,  fuel  quarters  or  transportation,"  ^  which, 
however,  it  is  added,  ''shall  not  exceed  the  necessities  of  the  current 
year."  ^  Such  contracts  may  therefore  be  entered  into  irrespective  of 
the  adequacy  of  the  appropriations,  or  entirely  on  credit,  where  Congress 
has  omitted  (as  it  did  m  tiie  session  ending  Mar.  4, 1877),  to  make  any 
appropriations  at  all  for  the  Army  for  a  fiscal  vear.^  But  field  that  by 
the  term  "current  year"  was  to  be  understood  current  fiscal  year,  and 
that,  in  the  excepted  cases,  the  military  authorities  could  bind  the 
Government  by  contracts  only  for  necessary  supjylies  for  the  fiscal 
year  in  which  such  contracts  were  made.  R.  38,  6O4,  Mar.  8,  1877; 
42,  185,  Jan.  29,  1875;  G.  26334,  Mar.  10,  1910. 

The  act  of  June  12,  1906  (34  Stat.,  255),  which  is  identical  in  its 
wording  with  section  3732,  R.  S.,  except  that  it  includes  ''medical 
and  hospital  siipphes"  among  the  articles  that  Tn&j  be  purchased 
without  a  specific  appropriation,  is  permanent  legislation.  C.  26334, 
Mar.  10,  1910. 

XIII  D.  Section  3733,  R.  S.,  provides  that  "No  contract  shall  be 
entered  into  for  the  erection,  repair,  or  furnishing  of  any  public  build- 
ing, or  for  any  public  improvement  which  shall  bind  the  Government 
to  pay  a  larger  sum  of  money  than  the  amount  in  the  Treasury  appro- 
priated for  the  specific  purpose."  By  the  act  of  June  16,  1890  (26 
Stat.,  157),  the  Secretary  of  War  was  "authorized  and  directed  to 
cause  to  be  erected  at  the  National  Armory,  Springfield,  Mass.,"  a 
building  for  machine  shops,  etc.,  not  to  cost  over  a  specified  total  of 
$211,639.54.  By  a  subsequent  appropriation  act  of  August  30,  1890 
(26  Stat.,  395),  an  appropriation  was  made  of  $100,000  "to  commence 
the  erection"  of  the  same  building.  Held,  that  a  contract  might  be 
entered  into  with  a  proviso  that  only  $100,000  shall  be  paid  for  the 
satisfactory  completion  of  the  whole  work  until  Congress  makes  an 
appropriation  for  the  completion  of  the  shops,  even  though  it  does 
conditionally  bind  the  Government  for  a  greater  sum  than  has  been 
appropriated.  Held,  further,  that  the  act  of  June  16,  1890,  should  be 
taken  as  an  exception  to  the  rule  stated  in  section  3733,  R.  S.,  and  as 
sufficient  authority  for  making  the  contract  under  consideration.* 
P.  43,  375,  Oct.  30,  1890. 

XIII  E.  Where  an  appropriation  was  so  depleted  that  there  were 
not  sufficient  funds  to  enable  the  Government  to  pay  for  some  very 
desirable  work  and  it  was  proposed  that  in  order  to  permit  the  work 
to  proceed  the  Government  should  enter  into  a  contract  upon  the 
condition  that  the  contractor  should  wait  for  payment  until  an 
appropriation  should  be  made,  and  that  he  should  have  no  claim 
against  the  Government  for  compensation  unless  an  appropriation 
should  be  made.  Held,  that  such  a  contract  could  not  legally  be 
entered  into  for  the  reason  that  it  would  violate  the  provisions  of 
sections  3679  and  3732,  R.  S.,  and  of  the  act  of  May  1,  1874  (23  Stat., 
17).  The  effect  of  incorporating  such  conditions  in  the  contract 
would  be  no  more  than  expressing  what  would  be  the  le^al  effect  of 
the  contract,  even  without  such  conditions.     Without  authority  from 

^  By  the  act  of  June  12,  1906  (34  Stat.,  255),  "medical  and  hospital"  supplies  are 
also  excepted. 

2  As  to  the  reason  of  this  statute,  see  the  oipinion  of  Nelson,  J.,  in  the  case  of  The 
Floyd  Acceptances,  7  Wallace,  666,  685. 

^  To  a  similar  effect,  see  subsequent  opinions  of  the  Attorney  General  in  15  Opins., 
124,209. 

*  See  XIII  Comp.  Dec,  480. 


346  CONTKACTS  XIII  E. 

Congress,  no  executive  officer  could  bind  the  United  States  in  the 
matter  by  contract  or  otherwise.  The  statutes  in  question  were 
intended  to  prevent  transactions  such  as  that  proposed,  which,  while 
not  creating  a  legal  claim  against  the  United  States,  would  involve  it 
in  an  imperfect  or  moral  obligation  which  would  be  urged  as  a  ground 
for  an  appropriation  to  discharge  the  obligation.^  C.  15Jf.01,  Mar.  10, 
1904. 

It  was  proposed  that  the  Government  should  lease  a  pier  for  the 
period  of  the  fiscal  year,  one  of  the  covenants  in  the  lease  providing 
that  the  Government  should  rebuild  the  pier  if  it  should  be  destroyed 
by  certain  means.  Held,  that  in  view  of  sections  3679  and  3732,  R.  S., 
a  lease  with  such  a  covenant  would  not  be  legal,  unless  a  sufficient 
sum  from  the  appropriation  applicable  to  hiring  the  property  be 
reserved  or  set  aside  to  rebuild  the  pier  in  case  of  its  destruction, 
otherwise  it  could  not  be  said  there  was  an  ' '  appropriation  adequate  to 
the  fulfillment"  of  the  contract. ^  C.  12360,  Apr.  7, 1902.  So  where 
certain  landowners  offered  to  donate  their  land  to  the  United  States 
for  the  extension  of  a  levee,  provided  the  United  States  would  agree 
to  pay  all  future  cost  of  maintenance  of  the  levee,  Tield,  that  in  view 
of  section  3679  R.  S.,  the  Secretary  of  War  would  have  no  authority 
to  bind  the  Government  for  the  future  maintenance  of  the  levee. 
C.  5089,  Nov.  4,  1898.  And  where,  under  an  appropriation  for  the 
construction  of  a  sewer,  it  was  proposed  to  enter  into  a  contract  for 
the  payment  of  damages  indefinite  in  amount.  Held,  that  as  the 
amount  of  such  damages  would  depend  upon  facts  which  could  not  be 
determined  at  the  time  of  making  the  contract,  it  would  be  imprac- 
ticable to  set  aside  a  sufficient  amount  from  the  appropriation  to  meet 
the  liability  under  the  proposed  contract,  and  thereiore  such  a  con- 
tract would  be  without  authority  of  law.     C.  27468,  Nov.  23,  1910. 

In  view  of  the  provisions  of  sections  3679  and  3732,  R.  S.,  there  can 
be  neither  a  contract,  nor  an  award  or  acceptance  of  a  bid,  until  there 
shall  be  an  adequate  appropriation  applicable  to  the  subject,  and, 
therefore,  in  advertising  for  bids  in  a  case  where  an  appropriation 
has  not  been  made,  it  is  proper,  although  not  necessary,  to  insert  a 
clause  notifying  bidders  of  that  fact.     R.  50,  338,  June  14,  1886. 

By  the  river  and  harbor  act  of  September  19,  1890,  the  Secretary 
of  War  was  authorized  to  enter  into  contract  for  a  certain  improve- 
ment of  the  Delaware  River, ''  the  work  to  be  paid  for  as  appropriations 
may  from  time  to  time  be  made  by  law."  A  contract  was  entered  into 
for  the  whole  work  at  a  cost  largely  in  excess  of  the  appropriation  avail- 
able. It  provided  that  when  appropriations  permitted,  monthly  pay- 
ments should  be  made,  10  per  cent  thereof  to  be  ' 'reserved,"  and  that 
if  payment  be  discontinued  for  a  period  of  one  year  owing  to  lack  of 
funds,  the  total  amount  reserved  from  previous  payments  should  be 
paid  to  the  contractor.     On  the  question  whether  the  amounts  so 

'  See  XIV,  Comp.  Dec,  755. 

^  See  XV  Comp.  Dec,  405,  where  it  was  held  that  the  execution  of  a  contract  with 
a  railroad  company,  which  proposes  to  make  the  Government  liable  for  any  and  all 
damages  to  the  property  of  said  railroad  company  arising  from  accident  or  injury 
thereto  by  reason  of  the  use  along  its  railway  lines  of  velocipede  cars  by  Government 
employees,  is  unauthorized  and  that  under  the  act  of  Mar.  3,  1905  (33  Stat.,  1257), 
amending  section  3679  of  the  Revised  Statutes,  no  officer  of  the  Government  has  a  right 
to  make  a  contract  on  its  behalf  involving  the  payment  of  an  indefinite  and  uncertain 
sum  that  may  exceed  the  appropriation,  and  which  is  not  capable  of  definite  ascertain- 
ment by  the  terms  of  the  contract,  but  is  wholly  dependent  upon  the  happening  of 
some  contingency  the  consequence  of  which  can  not  be  defined  by  the  contract. 


CONTRACTS   XIV  A.  347 

reserved  could  be  used  in  paying  for  work  not  yet  appropriated  for, 
held,  that  to  do  so  would  involve  a  violation  of  the  contract  entered 
into,  and  would  operate  indirectly  as  a  payment  for  work  in  advance 
of  an  appropriation  therefor.     C.  620,  Nov.  15,  1894. 

XIV  A.  Previous  to  the  act  of  July  17,  1862  (now  sec.  3737,  R.  S.), 
Government  contracts  were  legally  assignable  under  Umitations,  and 
the  act  of  February  26,  1853  (now  sec.  3477,  R.  S.),  prescribed  the 
mode  in  which  such  assignments  should  be  made.  The  act  of  July  17, 
1S62  (now  sec.  3737,  R.  S.),  however,  clearly  inaugurated  a  new  policy 
and  one  which  looked  to  the  repression  of  traffic  or  commerce  in  Gov- 
ernment contracts.     R.  31,  436,  June  8,  1871;  38,  13,  May  17,  1875. 

XIV  B.  Under  section  3737,  K.  S.,  the  assignment  of  a  contract  does 
not  render  it  absolutely  void,  but  voidable  at  the  option  of  the  Gov- 
ernment.* By  accepting  from  the  assignee  labor  or  materials  under 
the  contract,  or  by  permitting  a  part  performance,  it  ratifies  the 
assignment  and  payment  under  the  contract  should  be  made  to  the 
assignee.2  P.  16,  1,  Apr.  2,  1887;  C.  2933,  Feb.  10,  1897;  16085, 
Mar.  24,  1904.  So,  where  a  contractor  became  financially  unable  to 
continue  his  contract  and  his  surety  for  its  own  protection  carried 
on  the  work  and  paid  the  debts,  lietd,  that  upon  proof  of  an  assign- 
ment, either  voluntary  or  involuntary,  to  it  of  all  the  contractor's 
rights  under  the  contract,  that  payments  due  the  contractor  might 
be  paid  such  surety;^  and  that  upon  completion  of  the  work  all 
retained  percentages  might  be  paid  the  surety,  for  by  permitting  the 
assignee  to  perform  the  work  the  assignee  becomes  entitled  to  pay- 

^  According  to  early  authorities  the  assignment  of  a  contract  in  violation  of  section 
3737  R.  S.  is  absolutely  null  and  void.  McCord  v.  U.  S.,  9  Ct.  Cls.,  155;  10  Op.  Atty. 
Gen.,  523.  But  subsequently  it  was  held,  in  15  Op.,  245,  by  the  Attorney  General  that 
the  statute  is  intended  simply  for  the  benefit  and  protection  of  the  United  States, 
which,  therefore,  is  not  compelled  to  avail  itself  of  the  right  to  annul  the  contract,  but 
may  recognize  the  same  and  accept  and  pay  the  assignee.  "Were  it  to  be  held," 
observes  the  Attorney  General,  in  16  Op.,  277,  "that  a  transfer  of  an  interest  would 
absolutely  avoid  the  contract,  it  would  enable  any  party  making  a  contract  with  the 
United  States  to  avoid  it  hy  simply  transferring  an  interest  therein,  which  is  a  con- 
struction manifestly  inadmissible.  See  also  18  Op.  Atty,  Gen.,  88;  Dulaney  v. 
Scudder,  94  Fed.  Rep.,  6;  Wheeler  1;.  U.  S.,  5  Ct.  Cls.,  504;  Federal  Manufacturing  and 
Printing  Co.  v.  U.  S.;  41  id.,  321;  2  Comp.  Dec,  49.  The  practice  of  the  War  Depart- 
ment is  in  accordance  with  the  later  opinion  of  the  Attorney  General,  but  it  is  clear 
that  an  officer  of  the  Army  could  not  properly  assume  to  treat  an  assignment  of  a  con- 
tract as  valid  without  the  authority  and  direction  of  the  Secretary  of  War.  In  19  Op. 
Atty.  Gen.,  186,  it  is  held  that  there  is  no  authority  given  by  the  statute  nor  to  be 
inferred  from  it,  that  any  officer  of  the  United  States  can  in  advance  either  approve  or 
recognize  any  proposed  assignment.  Partnership  arrangements  and  arrangenients  for 
financial  assistance  in  connection  with  a  contract  will  not  ordinarily  constitute  an 
assignment.  Hobbs  v.  McLean,  117  U.  S.,  567;  Coates  v.  U.  S.,  53  Fed.  Rep.,  989; 
Dulaney  i;.  Scudder,  94,  id.,  6.  A  contractor  with  the  United  States  does  not,  by 
contracting  with  a  third  party  to  furnish  material  for  the  work,  assign  the  contract 
within  the  meaning  of  sec.  3737  R.  S.     U.  S.  v.  Farley,  91  Fed.  Rep.,  474. 

In  Burck  v.  Taylor,  152  U.  S.,  634,  the  court  said:  "The  express  declaration  that,  so 
far  as  the  United  States  are  concerned,  a  transfer  shall  work  an  annulment  of  the  con- 
tract, carries,  by  clear  implication,  the  declaration  that  it  shall  have  no  such  effect  as 
between  the  contractor  and  his  transferee.  In  other  words,  as  to  them,  the  transfer  is 
like  any  other  transfer  of  property,  and  controlled  by  the  same  rules.  Its  validity  is 
only  so  far  as  the  Government  is  concerned,  and  it  alone  can  raise  any  question  of  the 
violation  of  the  statute.  The  Government,  in  effect,  by  this  section,  said  to  every  con- 
tractor, 'You  may  deal  with  your  contract  as  you  please,  and  as  you  may  deal  with 
any  other  property  belonging  to  you,  but  so  far  as  we  are  concerned  you,  and  you  only, 
will  be  recognized  either  in  the  execution  of  the  contract  or  in  the  payment  of  the 
consideration.'" 

2  2  Comp.  Dec,  49;  Wheeler's  Case,  5  Ct.  Cls.,  504;  Heathfield's  Case,  8  id.,  215. 

3  IX  Comp.  Dec,  43;  19  Op.  Atty.  Gen.,  240. 


34§  CONTRACTS  Xlt  C. 

merit  therefor.  Such  an  assignment  would  not  be  within  the  mis- 
cliief  intended  to  be  remedied  by  section  3737,  R.  S.  C.  11328,  Oct. 
8, 1901. 

XIV  C.  The  provision  that  the  transfer  of  the  contract  or  any  inter- 
est therein  ''shall  cause  the  annulment  of  the  contract  so  far  as  the 
United  States  is  concerned/'  being  the  words  of  section  3737,  R.  S., 
may  properly  be  incorporated  in  a  contract,  but  it  would  be  better  to 
substitute  therefor  the  provision  that  '4n  case  of  such  transfer  the 
United  States  may  refuse  to  carry  out  this  contract  either  with  the 
transferor  or  the  transferee,"  as  mo  re  clearly  expressing  what  is  intended 
by  the  statute  as  construed  by  the  courts.     U.  2878,  Jan.  19,  1897. 

XIV  D.  Sections  3477  and  3737,  R.  S.,  do  not  apply  to  involuntary 
assignments  in  bankruptcy,  or  to  voluntary  assignments  for  the  benefit 
of  creditors!  (0.  2828,  Dec.  24,  1896;  13961,  Jan.  13,  1903);  or  to 
assignments  by  order  of  a  State  court  to  a  receiver  appointed  by  the 
State  court  {U.  13961,  Jan.  13,  1903),  and  where  there  has  been  an 
assignment  for  the  benefit  of  creditors  payments  due  or  to  become  due 
on  the  contract  should  be  made  to  the  duly  appointed  assignee  and 
could  not  legally  be  made  to  the  assignors.  Paragraph  1,  Circular  13, 
A.  G.  O.,  1895,  which  directs  disbursing  officers  to  refuse  to  pay  the 
assignee  of  any  claim,  except  as  to  assignments  authorized  by  the 
Army  Regulations,  does  not  apply  to  an  assignment  for  the  benefit 
of  creditors.2     C.  2052,  Feb.  13,  1896. 

A  receiver  duly  appointed  for  a  company  having  a  contract  with 
the  United  States  may  be  permitted  to  execute  the  contract,  payments 
being  made  to  the  receiver  on  receipts  signed  by  him.  Such  action 
would  not  amount  to  an  assignment  of  a  contract  prohibited  by  sec- 
tion 3737,  R.  S.  This  section  applies  to  voluntary  transfers  and  not 
to  such  as  are  made  under  judicial  proceedings.  The  receiver  is  an 
officer  of  the  court  which  appointed  him,  acts  under  its  orders,  is 
appointed  on  behalf  of  all  parties  interested,  and  stands  in  the  place 
01  the  company.  And  after  his  appointment  the  company  can  exer- 
cise no  acts  with  reference  to  its  property  and  contracts,  such  matters 
being  in  the  hands  of  the  receiver.^  0.  7508,  Jan.  6,  1900;  92^7, 
Nov.  8,  1900;  19612,  Apr.  28,  1906.  After  the  appointment  of  a 
receiver  by  a  State  court  all  payments  due  the  contractor  should  be 
paid  to  the  receiver.  Payment  to  the  contractor  would  not  be  a 
legal  discharge  of  the  debt.*     C.  13961,  Jan.  13,  1903. 

XIV  E.  Section  3737,  R.  S.,  does  not  apply  to  an  assignment  by 
operation  of  law.  Thus,  where  a  party  died  pending  the  execution  of 
a  contract  by  him  with  the  United  States,  held  that  his  executor  or 
administrator  could  legally  be  permitted  to  complete  the  contract  after 
filing  a  certificate  from  the  proper  court  of  his  appointment,  but  for 
the  executor  or  administrator  to  assign  the  contract  to  others  would 
be  a  violation  of  section  3737,  R.  S.^     C.  5849,  Feb.  20,  1899;  11168, 

1  Erwin  v.  U.  S.,  97  U.  S.,  392.  Goodman  v.  Niblack,  102  U.  S.,  556;  II  Comp. 
Dec,  49.     Nat.  Bank  of  Commerce  v.  Downie,  161  U.  S.,  839. 

2  This  opinion  was  concurred  in  by  the  Comptroller  of  the  Treasury  under  date  of 
Feb.  20,  1896. 

3  Price  V.  Forest,  173  U.  S.,  410. 

"^  Borcherling  v.  U.  S.,  35  Ct.  Cls.,  311;  People's  Trust  Co.  v.  U.  S.,  38  id.,  359;  U.  S. 
V.  Borcherling,  185  U.  S.,  223. 

^  II  Comp.  Dec,  514,  but  where  the  receiver  of  a  company  which  was  under 
contract  with  the  Government  transferred  and  assigned  the  contract  by  order  of  the 
court,  such  assignment  is  not  a  violation  of  sees.  3477  and  3737,  R.  S.,  X  Comp. 
Dec,  159  and  168;  Burke's  Case,  13  Ct.  Cls.,  231;  McKay  v.  U.  S.;  27  id.,  422. 


CONTRACTS   XIV  F.  349 

Au(j.  31 ,  1901 .  So  also,  where  one  of  two  joint  contractors  (not  consti- 
tuting a  partnership)  died  before  the  completion  of  a  Government  con- 
tract, liis  executor  or  administrator,  together  with  the  other  con- 
tractor, should  complete  the  contract  and  sign  all  receipts  for  money 
paid,  but  if  the  contractors  were  partners  the  surviving  partner 
should  complete  the  contract  and  receipt  for  money  paid.  0.  10005, 
Mar.  18,  1901.  However,  if  the  contract  called  for  the  personal  serv- 
ices of  the  contractor,  as,  for  instance,  his  services  as  an  artist,  the 
contract  terminated  with  his  death,  and  can  not  be  carried  out  by 
his  executor  or  administrator.^     C.  9883,  Dec.  4t  i900. 

XIV  F.  A  receiver  duly  appointed  for  a  company  having  a  con- 
tract with  the  United  States  is  both  bound  and  entitled  to  perform 
the  contract,^  and  if  he  declines  to  do  so,  or  fails  in  the  performance 
of  the  contract  to  such  an  extent  that  the  United  States,  under  the 
terms  of  the  contract,  would  be  entitled  to  procure  the  work  to  be 
done  elsewhere,  the  work  may  be  procured  elsewhere,  and  any  loss 
to  the  United  States  resulting  from  such  refusal  or  failure  will  be 
chargeable  to  the  contractor  or  his  receiver.     C.  17207,  Dec.  6,  1904. 

XIV  G.  There  is  a  manifest  distinction  between  the  assignment 
of  a  Government  contract  and  an  assignment  of  a  claim  for  money 
due  under  the  contract.  The  former  is  prohibited  by  section  3737, 
R.  S.;  the  latter  is  not  prohibited  and  is  lawful  if  properly  made, 
but  where  a  contractor  not  only  assigns  all  his  claims  against  the 
United  States  for  work  done  and  materials  furnished  under  his  con- 
tract mth  the  Government,  with  power  to  collect  and  receive  all 
monej^s  due  thereunder,  but  in  addition  recites  in  the  assignment 
that  it  is  given  ''as  a  further  continuing  collateral  security  for  all 
liabilities  incurred  or  to  be  incurred,"  and  in  addition  gives  a  mort- 
gage to  the  assignee  on  his  property,  lield,  it  constitutes  an  assign- 
ment of  the  contract  within  the  meaning  of  section  3737,  R.  S.  An 
assignment,  to  have  the  effect  of  invalidating  a  contract,  need  not  be 
express,  nor  need  it  be  technical,  formal,  or  written.  It  may  be 
evidenced  by  the  various  facts  or  circumstances  illustrating  the  rela- 
tions and  intention  of  the  parties.^    P.  62,  211,  Nov.  3,  1893. 

XIV  H.  Where  a  formal  written  contract  as  required  by  section 
3744,  R.  S.,  had  been  made  for  furnishing  meals  and  lodgings  to  a 
recruiting  party,  and  after  part  performance  the  contractor  abandoned 

1  VII  Comp.  Dec,  402. 

2  In  VIII  Comp.  Dec,  553,  where  a  contractor,  having  failed  to  complete  the  work 
provided  for  in  the  contract  with  him,  died,  and  the  contract  had  not  been  annulled 
or  rescinded,  it  was  said: 

"In  this  state  of  the  case  the  personal  representative  of  Jacoby  has  exactly  the  same 
right  to  go  ahead  with  the  work  under  the  terms  of  the  contract  as  Jacoby  would  have 
if  he  were  living,  and  no  more  right,  suffering  the  same  penalties  in  case  you  have  not 
exercised  your  authority  to  rescind  and  relet  as  would  Jacoby  himself  if  he  were  com- 
pleting the  contract  in  person. 

"If  the  estate  of  Jacoby  refuses  to  complete  the  work  under  the  terms  of  the  contract 
and  you  fail  to  exercise  your  right  to  rescind  and  relet  the  contract,  then  the  sureties 
of  Jacoby  have  exactly  the  same  right  to  complete  the  work  under  the  terms  and 
limitations  of  the  contract  as  had  Jacoby  if  he  had  lived  or  as  has  his  personal  repre- 
sentative. 

******* 

"It  is  not  intended  herein  to  say  that  when  a  contractor  defaults  that  his  contract 
should  not  be  rescinded  and  relet,  but  it  is  intended  to  be  said  that  the  sureties  have  a 
perfect  right  to  prevent  such  default  as, would  result  in  vour  right  to  rescind  and  relet, 
by  doing  the  work  themselves,  thereby  preventing  such  default." 

3 See  Francis's  case,  11  Ct.  Cls.,  638;  15  Op.  Atty.  Gen.,  235;  16  id.,  280. 


350  CONTRACTS  XIV  I. 

the  contract  and  his  wife  and  family  and  thereupon  his  wife  claimed 

Eay  for  meals  furnished  prior  to  his  departure  on  the  ground  that  the 
usiness  had  been  carried  on  with  her  capital  and  labor  and  as  her 
separate  business,  lield,  that  as  the  contract  was  made  with  her  hus- 
band the  money  due  for  meals  and  lodgings  furnished  prior  to  his 
departure  could  be  paid  to  him  only,  that  to  pay  the  wife  would  defeat 
the  purposes  of  section  3737,  R.  S.^  ^  C.  27131,  Aug.  4,  1910. 

XIV  I.  Where  a  bond  had  been  given  in  accordance  with  the  act  of 
Congress  of  August  13,  1894  (28  Stat.,  278),  to  protect  labor  and 
material-men,  and  the  contractor  in  applying  to  a  surety  company  for 
a  bond  had  agreed  that  in  case  of  breach  or  default  by  the  contractor 
of  the  provisions  of  his  contract  the  surety  should  be  subrogated  to  all 
the  rights  and  property  of  the  contractor,  and  that  deferred  payments 
and  any  moneys  due  the  contractor  should  be  credited  to  the  surety, 
and  the  agreement  was  claimed  to  be  an  equitable  assignment  to  the 
surety  of  all  money  due  from  the  Government.  Held,  that  under 
section  3477,  R.  S.,  the  agreement  was  void  as  an  assignment  to  the 
surety  of  any  money  due  from  the  Government  under  the  contract. 
C.  7311,  Dec.  28,  1899;  7726,  Feb.  28,  1900. 

XIV  J.  The  Government  will  in  general  recognize  assignments  of 
claims  to  moneys  in  its  hands  due  and  payable  to  individuals,  so  far 
as  to  consent  to  pay  over  the  amount  to  the  assignee,  where  the 
assignment  is  made  according  to  law,  viz  section  3477,  R.  S.^  But  an 
assignment  by  a  Government  contractor  to  a  bank  of  all  amounts  due 
or  to  become  due  to  it  by  the  United  States  Government  Under  its 
contract  is  without  effect  as  against  the  United  States  unless  made 
in  compliance  with  section  3477,  R.S.     G.  28261,  May  1,1911.^    Parties 

1  SeeXComp.  Dec,  201. 

2 In  Buffalo  Bayou  R.  Case,  16  Ct.  Cls.  238,  it  was  said:  "This  statute  to  prevent 
frauds  upon  the  Treasury  is  of  the  nature  of  a  statute  of  frauds.  It  was  designed  to 
absolve  the  Treasury  from  all  complicity  in  or  responsibility  for  the  sale  or  assignment 
of  claims  until  they  had  reached  the  point  where  in  the  form  of  drafts  they  would  be 
merged  in  negotiable  evidence  of  debt,  and  where,  the  amount  being  ascertained  and 
fixed,  the  assignment  or  power  of  attorney  could  describe  the  chose  assigned  with 
the  most  accurate  exactitude  and  certainty.  At  the  same  time  the  statute  did  not 
forbid  the  officers  of  the  Treasury  from  recognizing  or  acting  upon  the  instruments 
declared  void,  nor  did  it  declare  the  sale  and  assignment  of  claims  to  be  champertous 
or  penal.  In  a  word,  it  left  these  assignments  and  powers  of  attorney  precisely  where 
the  statute  of  frauds  left  the  agreements  which  it  declares  void — as  instruments  which 
can  not  be  enforced  at  law,  but  which,  when  voluntarily  given  by  the  Government 
creditors,  and  voluntarily  carried  into  effect  by  the  defendant's  officers,  must  be 
deemed  by  all  courts  to  have  expressed  and  executed  the  true  intent  of  the  parties." 
Section  3477,  R.  S.,  embraces  every  claim  against  the  Government,  however  arising, 
of  whatever  nature  and  whenever  and  wherever  presented;  it  applies  as  well  to  liqui- 
dated, certain,  and  undisputed  demands  as  to  those  which  are  unliquidated,  uncer- 
tain, or  disputed.  U.  S.  v.  Gillis,  95  U.  S.  407,  Ball  v.  Halsell,  16  id.;  72;  I  Comp. 
Dec,  276.  It  also  embraces  the  pay  of  contract  surgeons,  Circular  41,  A.  G.  O.,  Sept.  8, 
1902,  but  does  not  include  Government  agencies  such  as  tailors,  barbers,  and  dentists 
of  the  Navy,  XII  Comp.  Dec,  423,  and  does  not  apply  to  checks  that  have  been  given 
by  disbursing  officers  m  payment  of  a  claim.  22  Op.  Atty.  Gen.,  637;  Farmers  Nat. 
Bank  v.  Robinson,  59  Kans.,  777,  does  not  forbid  the  transfer  by  an  Army  officer  of 
his  pay  account  when  actually  due.  15  Op.  Atty.  Gen.,  271;  XII  Comp.  Dec,  164; 
and  the  assignment  may  be  revoked  at  any  time  prior  to  payment  to  assignee,  XII 
Comp.  Dec,  164.  Sec  3477,  R.  S.,  does  not  prohibit  a  disbursing  officer  from  accept- 
ing the  receipt  of  an  agent  or  attorney  of  an  individual,  firm,  or  corporation,  and 
receiving  credit  for  a  voucher  so  receipted,  provided  it  appears  thereon  that  the  check 
issued  in  payment  was  made  payable  to  the  order  of  the  individual,  firm,  or  corpora- 
tion.    II  Comp.  Dec,  295;  9  id.,  210;  par.  654,  A.  R.,  1910. 

^Henningsen  v.  U.  S.,  Fidelity  &  Guaranty  Co.,  143  U.  S.,  810;  Nat.  Bank  of  Com- 
merce V.  Downie,  161  U.  S.,  839;  Prairie  State  Bank  v.  U.  S.,  164  U.  S.,  227. 


CONTRACTS   XV  A   1.  351 

representing  opposing  interests  can  not,  by  presenting  to  a  head  of  a 
department  conflicting  claims  to  such  money,  compel  him  to  become 
a  stakeholder  for  them  or  an  arbitrator  upon  the  merits  of  their 
demands.  R.  19,  266,  Dec.  11,  1S65.  Where  a  claim  for  pay  for 
militaiy  service,  not  yet  allowed,  had  been  won  from  the  owner  in  a 
bet  on  a  horse  race,  and  a  power  of  attorney  to  collect  the  same  had 
been  executed  by  the  owner  to  the  claimant,  field,  that  such  power  was, 
in  effect,  an  assignment  of  the  claim,  and  as  such  was  absolutely  void, 
under  section  3477,  R.  S.  R.  52, 95,  Mar.  17, 1887.  So,  also,  an  allot- 
ment by  a  Government  employee  of  part  of  his  pay  in  advance  is 
void  under  section  3477,  R.  S.  C.  17822,  Apr.  3,  1906.  So  an 
assignment  by  a  discharged  general  prisoner  of  the  right  to  collect 
the  donation  of  $5  given  to  him  on  his  discharge  would  be  void. 
G.  144^4}  Apr.  20,  1903.  An  informal  assignment  by  a  Government 
employee  of  his  wages,  not  made  as  required  by  section  3477,  R.  S. 
is  void.i  G.  8411,  June  15, 1900;  17322,  Jan.  3, 1905;  Sept.  29, 1908. 
But  if  an  account  assigned  in  violation  of  the  statute  is  actually  paid 
the  payment  will  be  a  valid  one.^  G.  9498,  Dec.  27,  1900;  10576, 
June  5,  1901.  So,  where  an  officer  signed  a  paper  requesting  the 
Secretary  of  War  and  the  Paymaster  General  to  retain  out  of  his 
pay  and  pay  to  his  wife  a  certain  sum  each  month,  held  that  such  a 
paper  constituted  a  violation  of  section  3477,  R.  S.,  but  if  the  paper 
continued  unrevoked  and  undisputed  and  payments  were  made 
thereunder  they  w^ould  be  binding  on  the  officer.  G.  10956,  Aug.  2 
and  Oct.  15,  1901. 

XV  A  1 .  An  officer  of  the  Army  is  under  no  statutory  incapacity  to 
be  a  party  to  a  contract  with  the  United  States,  or  to  become  con- 
nected with  such  a  contract  by  acquiring  an  interest  therein  if  the 
same  relates  to  matters  separate  from  his  office  and  is  no  way  con- 
nected with  the  performance  of  his  official  duties.^  Held,  that  para- 
graph 746,  Army  Regulations,  1889  (603  of  1910),  which  provides 
that:  ''Officers  or  agents  in  the  mihtary  service  shall  not  purchase 
supphes  for  the  Government  from  any  other  person  in  the  mihtary 
service ;  nor  shall  they  contract  with  any  such  person  to  furnish  sup- 
plies or  service  to  the  Government,  nor  make  any  Government  pur- 
■ — - — - — ■ « 

^  So,  held,  even  where  the  assignment  of  wages  is  in  the  nature  of  a  writ  of  attach- 
ment, III  Comp.  Dec,  222;  11  id.,  790.  See,  also,  XII  Comp.  Dec,  267  and  14  id., 
396,  holding  that  under  sec.  3620,  R.  S.,  checks  can  be  drawn  only  in  favor  of  persons 
to  whom  payment  is  made,  and  a  power  of  attorney  authorizing  a  disbursing  officer 
to  draw  a  check  in  favor  of  the  attorney  is  without  effect, 

2  Assignments  of  claims  not  made  as  prescribed  in  this  section  are  declared  to  be 
"absolutely  null  and  void;"  but  this  statute  was  intended  to  protect  the  Government 
and  not  the  claimant,  and  to  prevent  frauds  upon  the  Treasury,  and,  therefore,  while 
the  accounting  officers  will  not  approve  powers  of  attorney  not  executed  in  accordance 
with  the  statute,  if  disbursing  officers  in  fact  make  payments  to  persons  holding  unre- 
voked and  undisputed  powers  of  attorney^  the  accounting  officers  must  allow  the  dis- 
bursing officers  credit  for  such  payments  m  the  settlement  of  their  accounts,  and  the 
original  claimant  can  not  recover  a  second  time  from  the  Government.  I  Comp.  Dec. , 
120,  142,  432,  453;  16  Op.  Atty.  Gen.,  261;  McKnight  v.  U.  S.,  98  U.  S.,  179;  Bailey 
V.  U.  S.,  109  id.,  432;  Buffalo  Bayou  R.  Case,  16  Ct.  Cls.,  238;  Lopez  Case,  24  id.,  84. 
This  section,  however,  does  not  prohibit  the  passing  of  claims  to  heirs,  devisees, 
assignees  in  bankruptcy,  or  even  voluntary  assignment  for  the  benefit  of  creditors, 
because  the  passing  or  transfer  of  claims  in  such  cases  does  not  come  within  the  evil  at 
which  the  statute  is  aimed.  Erwin  v.  U.  S.,  97  U.  S.,  392;  Goodman  v.  Niblack,  102 
id.,  556;  Butler  r.  Gorley,  146  U.  S.,  303;  II  Comp.  Dec,  50.  See,  also,  20  Op.  Atty. 
Gen.,  578.  The  section  does  not  apply  where  land  under  lease  to  the  Government  is 
sold,  thereby  requiring  the  Government  to  pay  rent  to  another  landlord.  Freedman's 
Saving  Co.  v.  Shepherd,  127  U.  S.,  494. 

3 14  Op.  Atty.  Gen.,  482. 


352  CONTRACTS   XV  A   2. 

chase  or  contract  in  which  such  person  shall  be  admitted  to  share  or 
receive  benefit,"  was  directory  merely,  and  that  a  contract  might 
still  be  legal  and  binding  though  entered  into  in  contravention  of  its 
terms.    P.  ^3,  147,  Oct.  6,  1890. 

As  paragraph  589,  Army  Regulations,  1895  (603  of  1910),  which 
forbids  officers  or  agents  in  the  military  service  from  contracting  with 
any  other  person  in  the  military  service,  etc.,  is  a  prohibition  pro- 
ceeding from  the  Secretary  of  War  to  the  officer  or  agent  in  the  mili- 
tary service,  it  may  be  waived  by  the  Secretary  in  a  given  case. 
So  lield  that  whether  it  should  be  waived  where  the  contract  was  to 
be  between  a  quartermaster  of  a  volunteer  regiment  and  a  firm  whose 
business  it  had  been  and  was  to  furnish  quartermaster  supplies  and 
of  which  the  quartermaster  had  been  and  was  a  member,  was  a  ques- 
tion for  the  Secretary  of  War  to  decide  on  the  facts  of  the  particular 
case.  C.  4^18,  June  1,1898;  22237,  Oct.  22,  1907;  2924.8,  Nov.  18, 
1911.  So,  where  a  soldier  had  been  authorized  to  erect  a  house  on  a 
military  reservation  and  was  subsequently  ordered  to  another  station 
and  desired  to  sell  or  lease  the  building  to  the  Government,  lield  the 
above  regulation  might  be  waived  by  the  Secretary  of  War,  and  the 
building  purchased  or  leased.  C.  21670,  June  13,  1907,  and  Aug. 
16,  1907. 

XV  A  2.  Paragraph  746,  Army  Regulations,  1889  (603  of  1910), 
which  forbids  officers  or  agents  in  the  military  service  from  contract- 
ing with  any  other  person  in  the  military  service,  does  not  apply  to 
contracts  on  behalf  of  the  United  States  which  require  for  their 
validity  the  approval  of  the  Secretary  of  War.^  P.  31,  106,  Mar.  15, 
1889;  C.  19856,  June  5,  1906.  On  the  question  whether,  in  view  of 
the  above  regulation,  an  Army  quartermaster  may  enter  into  a  con- 
tract with  a  retired  officer  of  the  Army  for  the  rent  of  rooms  in  a  build- 
ing owned  by  the  latter,  held  that  under  the  construction  put  upon 
this  regulation  by  the  Supreme  Court  of  the  United  States,  the  Sec- 
retary of  War  may  authorize  the  contract  in  question  to  be  entered 
into,  in  which  event  it  becomes  unnecessary  to  consider  whether  a 
retired  officer  is  in  fact  ^4n  the  military  service"  within  the  meaning 
of  the  regulation  cited.  C.  2508,  Aug.  4,  1896;  21670,  Aug.  16,  1907. 
Similarly  lield  with  respect  to  a  retired  officer  who  a?  agent  of  a  cor- 
poration desired  to  enter  into  a  contract  with  the  Government  to  fur- 
nish it  military  supphes.     C.  4828,  Aug.  23, 1898;  16166,  Apr.  9  ,1904. 

XV  A  3.  Paragraph  1002,  Army  Regulations,  1863  (603  of  1910), 
which  provides  that  '^no  officer  or  agent  in  the  military  service  shall 
purchase  from  any  other  person  in  the  military  service,  or  make  any 
contract  with  any  such  person  to  furnish  supplies  or  services,  or  make 
any  purchase  or  contract  in  which  such  person  shall  be  admitted  to 

^  The  paragraph  of  the  regulations  cited  is  substantially  the  same  as  par.  1002  of  the 
Regulations  of  1863;  and  with  reference  to  the  latter  the  Supreme  Court  held  (U.  S.  v. 
Burns,  12  Wall.,  251):  "That  regulation  does  not  apply  to  contracts  on  behalf  of  the 
United  States  which  require  for  their  validity  the  approval  of  the  Secretary  of  War. 
Though  contracts  of  that  character  are  usually  negotiated  by  subordinate  officers  or 
agents  of  the  Government,  they  are  in  fact  and  in  law  the  acts  of  the  Secretary  whoso 
sanction  is  essential  to  bind  the  United  States.  The  Secretary,  although  the  head 
of  the  War  Department,  is  not  in  the  military  service  in  the  sense  of  the  regulation, 
but  on  the  contrary  is  a  civil  officer  with  civil  duties  to  perform,  as  much  so  as  the 
head  of  any  other  of  the  Executive  Departments.  It  would  be  carrying  the  regula- 
tion to  an  absurd  extent  to  hold  it  was  intended  to  preclude  the  War  Department 
from  availing  itself  by  purchase  or  any  other  contract  of  any  property  which  an  officer 
in  the  military  service  might  acquire  if  its  possession  or  use  were  deemed  important 
to  the  Government." 


CONTRACTS   XV  A  4.  353 

any  share  or  part,  or  to  any  benefit  to  arise  therefrom,"  prohibits 
purchases  by  officers  of  the  Army  ''from  any  other  person  in  the  mih- 
tary  service."  Held,  that  this  prohibition  did  not  embrace  civiUans 
employed  in  the  pubUc  service  under  the  War  Department,  or  in 
connection  with  the  mihtary  administration,  and  therefore  did  not  pre- 
clude the  making  of  a  contract  by  an  ordnance  officer,  as  representing 
the  United  States,  with  a  civil  employee  at  an  arsenal,  for  the  use  or 
an  invention  patented  by  the  latter.  R.  SI,  320,  Apr.  11,  1866;  C. 
19856,  June  6,  1906.  So  lield  that  a  commissary  officer  could  enter 
into  a  contract  with  a  quartermaster's  employee  at  the  post  to  supply 
the  same  post  with  potatoes.  C.  29^/^8,  Nov.  18,  1911.  But  wnere 
the  form  of  a  proposed  contract  contained  the  stipulation  that  '^No 
person  belonging  to  or  employed  in  the  mihtary  service  of  the  United 
States  is  or  shaU  be  admitted  to  any  share  or  part  of  this  contract,'' 
held  that  the  description  ''person  *  *  *  employed  in  the  mili- 
tary service"  is  understood  to  mean  all  such  clerks,  mechanics,  labor- 
ers, or  other  civihans  as  are  legally  employed  by  the  military  authori- 
ties in  or  in  connection  with  nmitary  works,  operations,  or  other 
authorized  transactions,  and  that  where  the  lowest  bidder  was  a 
civihan  laborer  at  the  Springfield  Armory,  the  contract  should  be 
made  with  the  next  lowest  bidder,  who  was  under  no  such  inca- 
pacity.    P.  48,  875,  Aug.  6.  1891. 

XV  A  4.  Paragraph589,  Army  Regulations,  1895  (603  of  1910),  pro- 
\ddes  that  no  officer  or  agent  in  the  mihtary  service  shall  make  any 
purchase  or  contract  in  which  any  other  person  in  the  mihtary  service 
shall  be  "admitted  to  any  share  or  part,  or  to  any  benefit  to  arise 
therefrom."  Held  that  this  prohibition  does  not  embrace  a  contract 
with  the  wife  of  a  soldier  in  a  case  where  it  clearly  appeared  that  the 
wife  had  her  own  funds  and  carried  on  her  business  in  her  own  name, 
and  that  the  husband  did  not  in  any  way  share  in  the  business.  C. 
10752,  June  26,  1901. 

XV  A  5.  Paragraph  593,  Army  Regulations,  1904  (603  of  1910), 
which  forbids  officers  or  agents  in  the  mihtary  service  from  contract- 
ing with  any  other  person  in  the  military  service,  etc.,  apphes  to  a  con- 
tract between  the  United  States  and  an  officer  or  employee  of  the 
United  States  who  contracts  in  his  own  name,  but  does  not  apply  to 
a  contract  between  the  United  States  and  an  incorporated  company 
in  which  an  officer  or  employee  of  the  United  States  holds  stock. 
C.  18809,  Nov.  6,  1905;  16166,  Nov.  15,  1905. 

XV  B.  Under  sections  3739-3742,  R.  S.,  it  is  illegal  for  an  officer  of 
the  United  States  to  contract  for  or  purchase  for  the  United  States, 
any  supphes  from  a  Member  or  Delegate  to  Congress  or  from  a  firm 
or  association,  other  than  an  incorporated  company,  of  which  such 
a  Member  or  Delegate  is  a  member  or  in  which  he  is  pecuniarily 
interested.^  R.  42,  344,  J^^i^^  ^^,  1879.  But  these  sections  do  not 
prohibit  the  acceptance  of  a  Member  or  Delegate  as  a  surety  on  a 
bond  given  to  secure  a  contract  with  the  United  States.^     R.  49,  377, 

1  See  2  Op.  Atty.  Gen.,  40;  4  id.,  47;  U.  S.  v.  Dietrich,  126  Fed.  Rep  671.  That 
sec.  3739,  R.  S.,  does  not  affect  contracts  made  with  persons  who  have  been  simply 
elected  Members  of  or  Delegates  to  Congress,  but  have  not  actually  become  such  by  bemg 
sworn  in,  see  opinion  of  the  Attorney  General  in  15  Op.,  280.  But  see  sees.  114  and  115 
of  the  Federal  Penal  Code  of  Mar.  4,  1909  (35  Stat.,  1109),  which  supersede  sees.  3739 
and  3742,  R.  S.,  and  broaden  the  former  provision  so  as  to  apply  to  Members  of  Congress 
from  the  time  of  their  election  and  before  qualification. 

2  See  18  Op.  Atty.  Gen.,  287. 

31106°— 12 23 


354  CONTBACTS  XV  C. 

Oct.  17 J  1885.  But  as  in  case  of  a  failure  of  the  principal  the  surety 
may  become  subrogated  to  the  rights  of  the  prmcipai  and  offer  to 
carry  out  the  contract,  the  acceptance  of  a  Member  of  Congress  as 
surety  would  be  calculated  to  establish  contractual  relations  between 
the  United  States  and  a  Member  of  Congress,  recommended  that  Mem- 
ber of  Congress  be  not  accepted  as  surety.     C.  1^923,  July  6,  1903. 

XV  C.  There  is  no  illegality  or  impropriety  in  a  retired  Army 
officer  leasing  a  building  owned  by  him  to  the  Post  Office  Department. 
C.  18010,  May  15,  1905. 

XVI  A.  Section  3744,  R.  S.,  prescribes  that  ''it  shall  be  the  duty 
of  the  Secretary  of  War,  of  the  Secretary  of  the  Navy,  and  of  the 
Secretary  of  the  Interior  to  cause  and  require  every  contract  made 
by  them  severally  on  behalf  of  the  Government,  or  by  their  officers 
under  them  appointed  to  make  such  contracts,  to  be  reduced  to 
writing,  and  signed  by  the  contracting  parties  with  their  names  at 
the  end  thereof."  Were  it  not  for  the  provisions  of  this  section  the 
acceptance  of  a  bid  would,  under  the  general  law  of  contracts,  bind 
the  United  States.  But  this  section  has  been  construed  by  the 
Supreme  Court  as  being  in  the  nature  of  a  statute  of  frauds  and 
mandatory  in  its  requirements,  and  therefore  as  making  it  essential 
that  a  contract,  to  be  legal  and  obligatory,  shall  be  in  writing  and 
signed  by  the  parties.^     The  mere  proposal  of  a  bidder,  accepted  on 

^In  Clark  'o.  U.  S.  95,  U.  S.  541,  the  court,  in  holding  that  the  requirements  of  sec. 
3744  are  mandatory,  states:  "  It  is  contended  on  the  part  of  the  Government  that  this 
act  is  mandatory  and  binding  both  on  the  officers  making  contracts  and  on  the  parties 
contracting  with  them,  whilst  the  claimant  insists  that  it  is  merely  directory  to  the 
officers  of  the  Government  and  can  not  affect  the  validity  of  contracts  actually  made, 
though  not  in  writing.  The  Court  of  Claims  has  heretofore  held  the  act  to  be  manda- 
tory and  as  requiring  all  contracts  made  with  the  departments  named  to  be  in  con- 
formity with  it.^  The  arguments  by  which  this  view  has  been  enforced  by  the  court 
are  of  great  weight  and,  in  our  judgment,  conclusive.  The  facility  with  which  the 
Government  may  be  pillaged  by  the  presentment  of  claims  of  the  most  extraordinary 
character,  if  allowed  to  be  sustained  by  parol  evidence,  which  can  always  be  produced 
to  any  required  extent,  renders  it  highly  desirable  that  all  contracts  which  are  made 
the  basis  of  demands  against  the  Government  should  be  in  writing.  Perhaps  the 
primary  object  of  the  statute  was  to  impose  a  restraint  upon  the  officers  themselves 
and  prevent  them  from  making  reckless  engagements  for  the  Government;  but  the 
considerations  referred  to  make  it  manifest  that  there  is  no  class  of  cases  in  which  a 
statute  for  preventing  frauds  and  perjuries  is  more  needed  than  in  this.  And  we  think 
that  the  statute  in  question  was  intended  to  operate  as  such.  It  makes  it  unlawful 
for  contracting  officers  to  make  contracts  in  any  other  way  than  by  writing  signed  by 
the  parties.  This  is  equivalent  to  prohibiting  any  other  mode  of  making  contracts. 
Every  man  is  supj)osed  to  know  the  law.  A  party  who  makes  a  contract  with  an 
officer  without  having  it  reduced  to  writing  is  knowingly  accessory  to  a  violation  of 
duty  on  his  part.  Such  a  party  aids  in  the  violation  of  the  law.  We  are  of  opinion, 
therefore,  that  the  contract  itself  is  affected  and  must  conform  to  the  requirements  of 
the  statute  until  it  passes  from  the  observation  and  control  of  the  party  who  enters 
into  it."  In  the  above  case  the  claimant  agreed  with  the  Government  for  the  use  of 
claimant's  vessel  and  for  the  payment  of  the  value  ($60,000)  of  the  vessel  if  she  should 
be  lost  in  the  Government  service.  The  agreement  was  not  reduced  to  writing.  While 
in  the  Government  service  she  was  lost,  but  no  negligence  was  attributed  to  the 
Government.  Held^  the  agreement  not  being  in  writing  was  void,  and  therefore  the 
claimant  could  not  recover  the  value  of  the  vessel,  but  could  recover  on  an  implied 
contract  to  pay  a  reasonable  sum  for  the  actual  use  of  the  vessel,  which  would  be  only 
$1,200.     See  XII  Comp.  Dec,  79,  a  similar  case. 

In  South  Boston  Iron  Co.  v.  U.  S.,  118  U.  S.,  37,  the  claimant  offered  to  the  Secretary 
of  the  Navy  by  letter  to  construct  new  boilers  for  certain  vessels  of  the  Navy.  The 
offer  was  accepted  by  letter,  and  he  was  also  thereby  informed  that  the  drawings  and 
specifications  would  be  furnished  as  soon  as  possible.  A  few  days  later  he  was  notified 
to  discontinue  all  work  contracted  for  by  him  with  the  department.  The  claimant 
sued  to  recover  damages  for  nonperformance  of  the  contract.    HeM,  the  letters  did  npt 


CONTKACTS  XVI  A.  355 

the  part  of  the  Government,  does  not  therefore  operate  as  a  contract, 
but  IS  simply  a  proceeding  prehminary  to  a  contract ;  nor  does  such 
an  acceptance  bind  the  United  States  or  tlie  bidder  to  enter  into  a 
contract.  Either  the  bidder  or  the  Government  may  legally  refuse 
to  carry  out  the  bid  as  accepted,  or  if  the  bidder  enters  on  the  per- 
formance of  the  work  before  the  signing  of  the  contract,  or  enters 
on  the  performance  of  the  work  after  an  oral  agreement  to  do  the  work, 
the  bidder  or  the  Government  may  at  any  time  legally  discontinue 

constitute  a  contract  with  the  United  States  under  sec.  3744,  R.  S.;  that  they  were 
nothing  more  than  preliminary  memoranda  made  by  the  parties  in  preparing  a  con- 
tract for  execution  in  the  form  required  by  law.  See  also  International  Contracting 
Co.  V.  Lament,  2  Appeal  Cases,  D.  C,  532,  Salomon's  Case,  19  Wall.,  17;  Henderson's 
Case,  4  Ct.  Cls.,  75;  Lindsley  v.  U.  S.,  4  id.,  359;  Danolds  v.  U.  S.,  5  id.,  70;  Lender's 
Case,  7  id.,  530;  Mitchell  v.  U.  S.,  19  id.,  39;  Sawyer  &  Moody  v.  U.  S.,  40  id.,  47; 
VI  Comp.  Dec,  880;  IX  id.,  700;  holding  that  a  bid  for  the  transportation  of  Gov- 
ernment property  and  the  acceptance  thereof  by  the  Government  do  not  constitute 
a  valid  contract  within  the  meaning  of  sec.  3744,  R.  S.;  XI  Comp.  Dec,  604; 
XIII  id.,  12. 

But  where  a  contract,  void  because  not  in  writing  and  signed  as  required  by  sec. 
3744,  has  been  wholly  or  partially  executed,  the  j)arty  so  performing  will  be  entitled 
to  recover  the  fair  value  of  the  property  or  services  furnished  as  upon  an  implied 
contract.  Clark  v.  U.  S.,  95  U.  S.,  539;  Salomon  v.  U.  S.,  19  Wall.,  17.  See  also 
Danolds  v.  U.  S.,  5  Ct.  Cls.,  65;  Thompson  v.  U.  S.,  9  id.,  187;  Dougherty  v.  U.  S., 
18 id.,  496;  Mitchell  v.  U.  S.,  19  id.,  39;  Steele  v.  U.  S.,  19  id.,  181;  Wilson  v  U.  S.,  23id., 
77;  MoranBros.Co.-y.U.  S.,39id.,486;  III  Comp.  Dec,  365;  IV id.,  680;  V  id.,  246, 
588,  826;  VI  id.,  553;  VII  id.,  342,  366,  517;  XIV  id.,  242.  In  XII  Comp.  Dec,  647, 
it  was  held  that  where  the  owner  of  a  wharf  refused  to  enter  into  a  written  contract 
for  its  lease,  but  the  Government  used  it  with  the  permission  of  the  owner,  the  Gov- 
ernment is  liable  to  the  owner  for  the  reasonable  value  of  the  use.  In  Wilson  &  Goss 
v.  U.  S.,  23  Ct.  Cls.,  77,  it  was  held  that  a  parol  agreement  enlarging  the  quantity  of 
work  required  by  a  written  contract  is  not  obligatory  upon  the  Government  where 
the  contract  is  required  by  law  to  be  in  writing.  See  also  Jones  v.  U.  S.,  11  Ct.  Cls., 
733;  but  compensation  for  work  actually  done  thereunder  may  be  recovered  on  an 
implied  contract.  See  also  22  Op.  Atty.  Gen.,  104;  IX  Comp.  Dec,  559.  In  the 
absence  of  other  evidence  the  amount  agreed  upon  may  be  assumed  to  be  the  fair 
value  of  the  property  or  sersdces.  Clark  v.  U.  S.,  95  U.  S.,  539;  IV  Comp.  Dec,  680; 
VI  id.,  553,  951;  VII  id.,  345;  XIV  id.,  594. 

The  principle  that  a  recovery  may  be  had  for  the  fair  value  of  the  property  fur- 
nished or  services  rendered  has  been  modified  by  more  recent  decisions  of  the  United 
States  Supreme  Court  to  the  effect  that  after  actual  performance,  on  the  strength  of 
the  agreement,  recovery  may  be  had  for  the  amount  agreed  upon,  notwithstanding 
the  instrument  itself  was  void.  The  leading  case  so  holding  is  St.  Louis  Hay  &  Grain 
Co.  V.  U.  S.,  191  U.  S.,  163,  where  a  bid  was  made  to  furnish  certain  hay  to  the  Gov- 
ernment and  the  bid  was  accepted;  but  the  agreement  was  not  reduced  to  writing, 
as  required  by  sec  3744,  R.  S.  The  Government  did  not  require  the  full  amount 
contemplated  and  mentioned  when  the  Government  advertised  for  bids.  The  Gov- 
ernment paid  the  claimant  in  full  the  price  agreed  upon  by  the  bid  and  acceptance. 
The  bidder  thereupon,  treating  the  bid  and  acceptance  as  void  because  not  reduced 
to  writing,  sued  the  Government  for  the  market  value  of  the  hay  (which  was  more 
than  the  price  offered  by  the  bidder  and  accepted  and  paid  by  the  Government) 
less  the  amount  already  paid  by  the  Government  according  to  the  terms  of  the  bid 
and  acceptance.  The  court  denied  the  claim,  holding  that  it  could  recover  no  more 
than  the  price  agreed  upon,  stating:  "  On  the  facts  stated  it  is  evident  that  the  claim- 
ant has  no  case.  The  invalidity  of  the  contract  is  immaterial  after  it  has  been  per- 
formed. When  a  lawful  transfer  of  property  is  executed,  it  does  not  matter  whether 
the  terms  of  the  execution  were  void  or  valid  while  executory,  the  transfer  can  not 
be  revoked  or  the  terms  changed.  A  promise  to  make  a  gift  does  not  bind,  but  a 
gift  can  not  be  taken  back,  and  a  transfer  in  pursuance  of  mutual  promises  is  not 
made  less  effectual  by  those  promises  or  by  the  fact  that  money  was  received  in 
exchange.  The  contract  may  be  void  as  such,  but  it  expresses  the  terms  on  which 
the  parties,  respectively,  paid  their  money  and  delivered  their  goods."  See  to  the 
same  effect  U.  S.  v.  Andrews,  207  U.  S.,  229;  XIV  Comp.  Dec,  594.  On  the  authority 
of  St.  Louis  Hay  &  Grain  Co.  v.  U.  S.,  the  comptroller,  m  XV  Comp.  Dec,  65,  has  held 
that  when  an  informal  contract  by  proposal  of  a  contractor  and  acceptance  thereof 


356  CONTKACTS   XVI  A. 

the  further  performance  under  the  bid  or  oral  agreement,  the  Govern- 
ment being  liable  for  only  such  supplies  as  have  been  furnished  or 
such  services  as  have  been  rendered  prior  to  the  discontinuance  of  the 
work.  P.  56,  87,  355,  Oct.  10  and  Nov.  18,  1892;  61^,  379,  Apr.  17, 
1894;  ^5,  378,  July  7,  1894;  O.  1345,  May  3,  1895;  8458,  June  19, 
1900;  8842,  Sept.  1,  1900;  12274,  Mar.  22,  1902;  12572,  May  7,  1902; 
12827,  Sept.  10,  1902;  16889,  Sept.  15,  1904;  18823,  Nov.  9,  1905; 
19525,  Apr.  17,  1906;  26994,  J^ly  H,  1910.     So,  where  a  written 

by  the  Navy  Department  has  been  fully  executed  by  both  the  parties  thereto  with- 
out default,  with  the  exception  that  the  Government  has  not  paid  the  full  contract 
price,  the  contractor  is  entitled  to  be  paid  the  full  contract  price,  although  the  price 
IS  in  excess  of  the  current  price  at  the  time  and  place  of  delivery. 

Where  a  contractor  died  prior  to  the  completion  of  certain  work  under  a  contract 
which  was  void  because  not  in  writing,  and  the  work  was  subsequently  completed 
by  a  subcontractor,  payment  of  the  reasonable  value  thereof  should  be  made  to  the 
administrator  of  the  estate  of  the  decedent  and  the  subcontractor  must  look  to  said 
estate  for  payment.    X  Comp.  Dec,  353. 

Sec.  3744,  R.  S.,  applies  to  contracts  made  in  an  emergency  without  advertising  as 
well  as  to  others.     Cobb  i;.  U.  S.,  18  Ct.  Cls.,  514. 

In  XV  Comp.  Dec,  89,  it  was  held  that  when  an  informal  contract  by  proposal  of  a 
contractor  and  acceptance  thereof  by  the  Commissioner  of  the  General  Land  Office 
has  been  fully  executed  on  the  part  of  the  contractor,  and  has  been  accepted  by  the 
Government,  it  becomes  as  binding  as  a  formal  contract,  although  not  reduced  to 
writing  and  signed  by  the  contracting  parties  as  required  by  sec.  3744  of  the  Revised 
Statutes,  and  that  in  such  case  the  original  proposals  and  the  acceptance  thereof 
should  be  filed  with  the  auditor  in  accordance  with  sec.  18  of  the  act  of  July  31,  1894, 
in  order  to  enable  the  auditor  to  intelligently  audit  the  accounts  by  having  the  evi- 
dence before  him. 

In  Camp  i).  U.  S.,  113,  U.  S.,  648,  it  was  held  that  when  a  regulation,  made  by 
the  head  of  an  executive  department  in  pursuance  of  law,  empowers  subordinates, 
of  a  class  named,  to  contract  on  behalf  of  the  United  States  as  to  a  given  subject 
matter;  and  further  directs  that  "any  contract  made  in  pursuance  of  this  regulation 
must  be  in  writing,"  a  verbal  executory  contract  relating  thereto  is  not  binding  upon 
the  United  States. 

While  the  provisions  of  sec.  3744,  R.  S.,  are  mandatory  in  those  cases  where  they 
apply,  the  following  are  exceptions  to  the  rule  that  contracts  under  the  War  Depart- 
ment should  be  in  writing: 

If  there  is  an  exigency  or  emergency  requiring  immediate  delivery  of  ^property  or 
immediate  rendition  of  services  a  written  contract  is  not  necessary.  IX  Comp.  Dec, 
460;  XV  Comp.  Dec,  65;  36  Ct.  Cls.,  105;  42  Ct.  Cls.,  351;  par.  558,  A.  R.,  1910. 
See  also  Ceballos  v.  U.  S.,  42  Ct.  Cls.,  318,  as  to  emergency  contracts  in  time  of  war. 

The  time  fixed  in  an  existing  written  contract  for  the  completion  of  the  same  may 
be  orally  waived,  that  is,  extended  indefinitely,  and  the  written  contract  will  con- 
tinue in  force,  with  a  reasonable  time  for  performance.  VIII  Comp.  Dec,  104.  But 
if  it  is  desired  to  extend  the  time  to  a  specific  date,  sec.  3744,  R.  S.,  applies, 
and  the  extension  should  be  accomplished  by  a  formal  written  contract.  VIII 
Comp.  Dec,  104. 

A  writte;i  contract  is  not  necessary  in  expending  the  sum  of  $50,000,000  appro- 
priated in  1898  (30  Stat.,  273)  for  national  defense,  which  was  "to  be  expended  at 
the  discretion  of  the  President."     IX  Comp.  Dec,  457. 

The  act  of  Mar.  23, 1910  (36  Stat.,  261),  provides  that  "hereafter  whenever  contracts 
which  are  not  to  be  performed  within  sixty  days  are  made  on  behalf  of  the  Gov- 
ernment by  the  Chief  of  Ordnance,  or  by  oflicers  under  him  authorized  to  make  them, 
and  are  in  excess  of  five  hundred  dollars  in  amount,  such  contracts  shall  be  reduced 
to  •writing  and  signed  by  the  contracting  parties  with  their  names  at  the  end  thereof. 
In  all  other  cases  contracts  shall  be  prepared  under  such  regulations  as  may  be  pre- 
scribed by  the  Chief  of  Ordnance." 

The  act  of  June  25, 1910  (36  Stat.,  676),  provides  that  "the  requirements  of  section 
thirty-seven  hundred  and  forty-four  of  the  Revised  Statutes  shall  not  apply  to  the 
lease  of  lands,  or  easements  therein,  or  of  buildings,  rooms,  wharves,  or  rights  of  wharf- 
age or  dockage,  or  to  the  hire  of  vessels,  boats,  and  other  floating  craft,  for  use  in  con- 
nection with  river  and  harbor  improvements,  where  the  period  of  any  such  lease  or 
hire  is  not  to  exceed  three  months." 

See  contracts  XVI  B  for  an  instance  in  which,  under  unusually  worded  instruc- 
tions to  bidders,  the  Government  would  be  liable  for  partial  performance  in  a  case 
where  the  Government  declined  to  sign  the  contract. 


CONTRACTS  XVI  A.  357 

contract  authorizing  the  United  States  to  procure  riprap  stone  from  a 
certain  part  of  the  river  front  was  extended  by  a  written  agreement 
signed  only  by  the  contractor,  Jield,  the  written  agreement  of 
extension  was  not  a  contract  and  gave  the  United  States  no  rights 
in  the  premises.  C.  12083,  Feb.  21 ,  1902.  So,  where  a  manufacturing 
concern  upon  the  request  of  the  Cliief  of  Ordnance  enlarged  its  plant 
to  enable  it  to  fill  anticipated  large  orders  at  the  outbreak  of  the  War 
with  Spain,  but  no  written  contract  for  such  anticipated  orders  was 
entered  into,  held,  the  United  States  was  not  bound  to  reimburse 
the  company  for  money  spent  in  enlarging  its  plant.  C.  17302,  Dec. 
21,  1904.  So,  where  a  bid  was  accepted  by  the  Government,  but  the 
bidder  refused  to  sign  the  form  of  contract  submitted  to  him,  and 
thereupon  the  Government  entered  into  a  contract  with  the  next 
lowest  bidder,  the  bidder  who  had  refused  to  sign  the  contract 
claimed  damages  by  reason  of  the  fact  that  he  had  already  given 
orders  for  part  of  the  suppUes  bid  on,  held,  there  was  no  legal  claim 
for  damages  against  the  Government.  C.  24879,  May  3,  1909.  So, 
held,  that  a  lease  for  rooms  to  be  binding  must  complv  with  the  pro- 
visions of  section  3744,  R.  S.  C.  17098,  Nov.  1,  1904;  17826,  Apr. 
13,  1905.  So,  where,  on  w^ritt6n  proposal  and  acceptance  a  launch 
was  hired  for  one  month,  and  after  three  days'  use  the  Government 
declined  to  continue  the  liire,  held,  there  being  no  written  contract 
as  required  by  section  3744,  R.  S.,  the  Government  was  legally  liable 
only  for  the  tliree  days'  use  of  it.  C.  21993,  Aug.  29,  1907.  So,  m 
April,  1898,  when  extraordinary  efforts  were  being  made  to  mine  a 
harbor  for  defense  against  possible  attack,  the  local  engineer  officer 
ordered  from  an  electric  company  by  letter  a  large  quantity  of  leaded 
cable  wliich  the  company  pronused  by  letter  to  furnish  and  deliver 
at  the  place  needed.  No  formal  written  contract  was  made.  The 
cable  had  not  arrived  at  the  time  it  was  needed  and  the  officer  there- 
upon purchased  the  amount  he  required  from  other  parties.  Sub- 
sequently the  cable  first  ordered  arrived,  but  too  late  to  be  used,  and 
was  returned,  the  Government  paying  freight  charges  both  ways. 
Held,  that  the  Government  was  under  no  legal  obligation  to  accept 
and  pay  for  the  cable,  the  agreement  made  not  having  been  reduced 
to  wTitmg,  etc.,  as  required  by  section  3744,  R.  S.  C.  5275,  Nov.  11, 
1898.  A  contract  for  gun  carriages  provided  that  the  Government 
might  increase  the  number  50  per  cent,  and  that  ''for  such  increased 
number  as  may  be  called  for  a  necessary  time  allowance  for  deliver- 
ing will  be  made,  as  may  he  agreed  upon."  The  Government  gave 
written  notice  of  an  increase  to  be  furnished  ''within  such  time  as 
may  be  necessary  to  their  manufacture,"  which  was  agreed  to  in 
writing  by  the  contractor.  Held,  that,  under  section  3744,  R.  S., 
the  correspondence  does  not  constitute  a  binding  contract,  and  that 
the  furnishing  of  the  increased  number  should  be  provided  for  by  a 
supplemental  contract.  C.  11926,  Jan.  18,  1902.  Where  bids  were 
invited  for  supplying  fresh  meat  for  one  year,  to  be  furnished  weekly 
and  paid  for  monthly,  and  it  was  sought  to  avoid  the  use  of  a  formal 
contract,  held,  that,  as  the  agreement  was  not  to  be  immediately 
executed,  but  would  continue  through  the  year,  a  formal  contract  as 
required  by  section  3744,  R.  S.,  should  be  entered  into,  for  an  oral 
agreement  would  not  be  binding  on  the  parties.  C.  2074,  ^^^'  ^^ 
and  Mar.  5,  1896.  Where  a  private  steamer  transporting  Govern- 
ment property  became  disabled  and  the  commanding  officer  of  the 


358  CONTRACTS   XVI   A. 

troops  orally  agreed  to  pay  another  steamer  $3,000  for  salvage  services 
in  saving  the  Government  property,  lield,  that  in  view  of  the  provi- 
sions of  section  3744,  R.  S.,  the  oral  stipulation  would  not  be  binding 
upon  the  United  States,  but  as  the  claimant  had  fully  rendered  the 
services  required  by  the  agreement,  he  should  be  paid  the  agreed 
amount  which,  under  the  circumstances  of  the  case,  was  regarded  as 
reasonable  for  salvage  services,  and  as  the  claim  arose  out  of  the 
transportation  of  Government  property,  recommended  that  this  sum 
be  paid  to  the  claimant  from  the  fund  ''Transportation  of  the  Army." 
C.  11126,  Aug.  23,  1901.  Where  there  was  an  oral  agreement  to 
furnish  a  certain  number  of  mules  to  the  Government  and  the  Gov- 
ernment failed  to  promptly  purchase  the  full  number  agreed  upon, 
Tield,  there  was  no  claim  against  the  Government  for  its  failure. 
C,  5102,  May  21,  1901.  So,  where  a  written  offer  to  sell  land 
adjoining  a  military  reservation  was  accepted  in  writing,  but  owing 
to  exceptional  conditions  the  purchase  was  not  made,  held,  that 
in  view  of  the  provisions  of  section  3744,  R.  S.,  the  negotiations 
amounted  to  preliminary  memoranda  only  and  did  not  constitute 
a  valid  contract  binding  on  the  Government.  C.  12081,  Oct.  1, 
1902,  Apr.d  and  June  23, 1905,  Mar.  27, 1907,  and  Jan.  23, 1908.  So, 
where  a  civilian  was  employed  as  a  clerk  in  the  PhiHppine  Islands 
without  a  written  contract  but  upon  a  certain  verbal  understanding 
that  he  was  to  be  ordered  to  the  United  States  for  discharge,  lield, 
that  as  contract  was  not  in  writing  and  signed  as  required  by  section 
3744,  R.  S.,  the  understanding  was  not  binding  upon  the  Govern- 
ment.    C.  11713,  Feb.  1,  1902. 

The  owner  of  a  steamshij)  offered  its  vessel  for  charter  at  the  rate 
of  $50  per  day,  with  a  proviso  that  in  a  certain  contingency  the  rate 
should  be  $60  per  day.  The  chief  quartermaster  of  the  department 
forwarded  the  offer  recommending  approval.  The  chief  quartermas- 
ter of  the  division  recommended  approval  for  $50  a  day  only,  without 
the  provision  for  an  increase  in  any  contingency.  The  division 
commander  approved  the  offer  for  $50  per  day  straight.  The  owner 
made  out  a  charter  party  for  $50  per  day,  with  the  provision  for  an 
increase  to  $60  per  day  in  the  event  of  a  contingency.  This  was 
returned  by  the  division  commander  inviting  attention  to  the  fact 
that  the  approval  was  for  only  $50  a  day  straight.  Thereupon  the 
owner  signed  the  charter  party  for  $50  a  day  straight,  protesting  at 
the  same  time  against  the  reduced  rate,  stating  that  he  did  it  only ' '  to 
avoid  any  friction  with  the  Quartermaster's  Department."  The  prop- 
erl;^  signed  charter  party  for  $50  a  day  straight  was  approved  by  the 
division  commander.  Subsequently  the  contingency  mentioned  by 
the  owner  occurred,  and  the  owner  requested  the  increased  rate.  Held, 
that  all  the  negotiations  preliminary  or  prior  to  the  actual  signing 
of  the  charter  party  were  by  reason  of  section  3744,  R.  S.,  only  pre- 
liminary and  did  not  bind  the  parties,  and  that  the  charter  party  first 
submitted  by  the  owner  not  having  been  approved  by  the  division 
commander  was  not  binding  on  the  parties.  The  fact  that  the  con- 
sent of  the  owner  to  the  terms  insisted  upon  by  the  Government  was 
a  ''grumbling  consent"  made  it  none  the  less  a  real  consent,  and  the 
signed  and  approved  charter  party  was  the  only  measure  of  the  rights 
and  liabiHties  of  both  parties.     C.  18634,  Oct.  2,  1905. 

Where  a  contract  is  not  ambiguous  or  technically  obscure,  parol 
evidence  is  not  admissible  to  establish,  a  new  term  or  add  an  under- 


CONTRACTS  XVI  B.  359 

standing  at  variance  with  its  written  stipulations.  Thus  where,  prior 
to  the  execution  of  a  contract,  the  officer  acting  for  the  United  States 
advised  the  contractor  that  it  would  be  necessary  to  deduct  from  the 
whole  amount  to  be  paid  him  certain  sums  which  would  be  required 
to  be  disbursed  by  the  Government  for  certain  clerical  work  and  the 
employment  of  certain  assistants,  but  failed  to  insert  in  the  contract 
any  stipulation  for  such  deduction — Tield  that  in  view  of  the  require- 
ments of  section  3744,  R.  S.,  and  also  in  view  of  the  general  legal 
principle  that  the  written  contract  represented  the  consummation  of 
all  previous  negotiations  and  the  final  act  of  the  parties,  the  United 
States  was  estopped  from  setting  up,  by  parol  evidence,  the  existence 
of  an  understanding  that  such  deduction  should  be  made.  R,  50j 
488,  July  1,  1886. 

Owing  to  the  fact  that  an  improper  plane  had  been  taken  for 
several  years  as  the  average  flood  tide  in  the  matter  of  measuring  the 
depth  to  be  maintained  at  the  South  Pass,  La.,  by  the  James  B.  Eades 
estate,  certain  moneys  to  which  the  estate  was  lawfully  entitled  had 
been  withheld  from  it.  The  executors  of  the  estate,  while  claiming 
the  right  to  be  paid  all  amounts  so  withheld,  proposed  to  waive  their 
right  to  all  that  accrued  prior  to  January  1,  1895,  if  the  Secretary  of 
War  would  authorize  payment  of  the  amounts  withheld  since  that  date. 
The  Secretary  of  War  accepted  the  proposal.  Held,  that  the  letters 
of  the  executors  proposing  the  compromise  and  expressing  satis- 
faction with  the  Secretary  ol  War's  acceptance  did  not  constitute  a  suf- 
ficient waiver  of  all  claims  against  the  United  States  for  the  years  prior 
to  January  1,  1895.  The  Tetters  and  indorsements  relating  to  the 
waiver  constitute  under  section  3744,  R.  S.,  only  preliminary  nego- 
tiations. To  legally  bind  both  parties  to  the  agreement  reached,  it 
should  be  reduced  to  writing  and  signed  as  required  by  that  statute. 
C.2116,  Mar.  11,  1896. 

XVI  B.  The  circular  of  instructions  to  bidders  for  certain  fire 
apparatus  stated  that  as  early  dehvery  was  essential  bidders  ''will 
state  in  their  proposals  the  number  of  days  from  date  of  award  that 
dehvery  will  be  made,"  and  the  accepted  bidder  stated  that  he  would 
begin  work  ''at  once  after  receipt  of  award,"  and  that  the  several 
items  would  be  dehvered  within  a  certain  number  of  days  "from 
acceptance  of  bid."  Held  that  if  the  Government  should  refuse  to 
approve  the  contract,  a  part  performance  before  the  refusal,  by 
reason  of  the  bidder  commencing  the  manufacture  of  the  apparatus 
immediately  on  receiving  notice  of  the  award,  would  give  the  bidder 
a  claim  to  compensation  so  far  as  the  proposed  contract  had  been 
executed,  but  no  further.     C.  26752,^  May  23, 1910. 

XVI  C.  Where  a  contractor  for  river-improvement  work  failed  to 
sign  a  written  contract  as  required  by  section  3744,  R.  S.,  but  per- 
formed a  portion  of  the  desired  work,  Tield  that  the  contractor  was 
entitled  to  pay  for  the  work  actually  performed,  but  that  the  United 
States  could  not  deduct  from  this  any  loss  which  it  may  have  sustained 
by  reason  of  his  failure  to  complete  the  work.^  C.  884-2,  Sept.  1, 1900; 
18823,  Nov.  9, 1905. 

XVI  D.  Certain  transportation  companies  signed  an  "agreement" 
purporting  to  bind  them  to  accept  shipments  of  passengers  and  freight 
at  certain  rates*  filed  with  the  Interstate  Commerce  Commission,  the 
agreement  purporting  to  be  effective  during  the  calendar  year  of  1911 

^  IX  Comp.  Dec,  664. 


360  CONTRACTS  XVI  E. 

and  ' 'thereafter  from  year  to  year  unless  the  carrier  files  notice  of 
withdrawal  with  the  Quartermaster  General  of  the  Army  at  least  sixty 
days  prior  to  the  beginning  of  any  calendar  year."  Held  that  as 
there  was  no  consideration  for  the  agreement  and  it  was  not  signed 
by  any  officer  of  the  United  States  it  is  not  a  binding  contract  under 
section  3744,  R.  S.,  but  simply  a  continuing  proposal,  good  until 
withdrawn  by  the  parties  signing  it.     G,  27803,  Feb.  8,  1911. 

XVI  E.  The  Umted  States  Soldiers'  Home  entered  into  a  contract 
for  certain  material.  A  third  party,  whose  name  did  not  appear  in 
the  contract,  notified  the  home  that  he  was  interested  in  the  con- 
tract which  stood  in  the  name  of  the  contractor,  and  notified  the 
home  not  to  pay  any  money  to  the  contractor  on  the  contract  during 
the  pendency  of  a  certain  suit.  Held  that  if  the  contract  were  one 
governed  by  the  provisions  of  section  3744,  R.  S.,  the  notice  from  the 
third  party  should  be  disregarded,  as  the  Government  in  such  cases 
deals  only  with  the  person  named  in  the  contract;  ^  but  as  the  home 
was  under  the  control  of  a  board  of  conunissioners  the  contract  was 
not  one  ''under  the  Secretary  of  War"  within  the  meaning  of  section 
3744,  R.  S.,  and,  therefore,  was  not  required  by  law  to  be  executed 
in  the  manner  prescribed  by  that  section.  The  contracts  for  the 
home  in  practice  are  executed  in  the  same  manner  as  those  controlled 
by  section  3744,  R.  S.,  but  as  this  practice  is  not  based  on  a  legal 
requirement,  such  contracts  would  be  governed  by  the  general  law  of 
agency,  which  law  permits  an  undisclosed  principal  to  come  forward 
and  claim  the  benefit  of  a  contract  made  by  an  agent  in  his  own  name. 
C.  19648,  May  7,  1906. 

XVI  F.  Paragraph  549,  Army  Regulations  (558  of  1910),  provides 
three  methods  of  purchasing  suppHes,  etc.,  to  wit:  (1)  "By  contract 
'reduced  to  writing  and  signed  by  the  contracting  parties  with  their 
names  at  the  end  thereof  ";  (2)  "by  written  proposal  and  written 
acceptance";  and  (3)  "by  oral  agreement."  This  paragraph  further 
provides  that  "when  delivery  or  performance  does  not  immediately 
follow  an  award  or  bargain,  the  first  method  will  be  used,"  i.  e.,  "by 
contract  reduced  to  writing,"  etc.;  and  that  "when  delivery  or  per- 
formance immediately  follows  an  award  or  bargain  the  second  method 
may  be  resorted  to."  The  first  method  constitutes  a  "contract" 
under  section  3744,  R.  S.,  but  the  second  (proposal  and  acceptance) 
does  not.  The  regulation  permits  the  second  method  to  be  used  only 
when  the  material  is  to  be  dehvered  at  the  time  the  bargain  is  made, 
because  in  that  case  it  is  not  necessary  to  bind  anyone,  but  requires 
the  first  method  to  be  used  in  cases  where  the  delivery  is  to  be  made 
in  the  future,  because  in  these  cases  it  is  necessary  to  bind  the  parties, 
and  this  can  not  be  done  except  by  "contract  reduced  to  writing," 
etc.2  C.  5275,  Nov.  11,  1898. 

XVI  G.  The  act  of  June  12,  1906  (34  Stat.,  258),  provided  that 
"hereafter  the  purchase  of  supplies  and  the  procurement  of  services 
for  all  branches  of  the  Army  service  may  be  made  in  open  market,  in 
the  manner  common  among  business  men,  when  the  aggregate  of  the 

^  See  X  Comp.  Dec,  201. 

2  The  present  regulations  (par,  558  of  1910)  authorize  the  use  of  the  third  method 
(oral  a^eement)  under  certain  circumstances  indicated  in  par.  559,  A.  R.  1910, 
*'if  delivery  or  performance  immediately  follows  the  agreement."  The  reason  for 
allowing  the  use  of  the  third  method  only  in  case  delivery  or  performance  imme- 
diately follows  the  agreement  is  the  same  as  indicated  above  for  the  second  method. 
See,  also,  XII  Comp.  Dec,  507. 


CONTEACTS   XVI   H.  361 

amount  required  does  not  exceed  $500,"  etc.  Held  that  this  act  dis- 
penses with  the  necessity  of  a  formal  written  contract  as  provided  by 
section  3744,  R.  S.     C.  32214,  May  5, 1908. 

XVI  H.  Where  a  lease  was  made  for  one  year  with  a  provision  for 
renewal  from  year  to  year  for  several  years,  at  the  option  of  the  United 
States,  it  was  held  that  in  view  of  section  3744,  R.  S.,  written  notice 
of  the  renewal  with  an  indorsement  thereon  of  acceptance  by  the  lessor 
would  not  be  a  binding  contract,  as  it  would  not  be  signed  by  both 

Earties  *'with  their  names  at  the  end  thereof";  but  advised  that  a 
rief  contract  referring  to  the  original  lease  in  a  way  to  identify  it  and 
providing  for  the  renewal  for  the  succeeding  fiscal  year,  and  signed  by 
the  proper  officer  on  behalf  of  the  United  States  and  the  lessor  with 
their  names  at  the  end  thereof,  would  comply  with  the  requirements 
of  the  statute.  Such  a  brief  contract  coula  be  made  at  the  beginning 
of  each  fiscal  year  during  the  term  named  in  the  original  lease.  C. 
7214,  Oct  27,  1899.^ 

Wliere  it  was  desired  to  enter  into  a  supplemental  agreement,  and 
the  contracting  officer  wrote  to  the  contractor  stating  the  terms  and 
conditions  winch  he  desired  to  have  incorporated  into  the  supple- 
mental agreement,  and  the  contractor  returned  the  letter,  stating  at 
the  end  of  the  same,  below  the  signature  of  the  contracting  officer, 
that  he  (the  contractor)  accepted  the  ''above  modifications"  and 
signed  the  paper  himself,  and  below  his  signature  appeared  the  signed 
assent  of  the  surety  on  the  bond,  lield  that  the  paper  constituted  a 
written  supplemental  contract  within  the  meamng  of  section  3744, 
R.  S.     C.  29314,  Dec.  19,  1911. 

XVII.  Section  3745,  R.  S.,  provides  that  every  contract  shall, 
before  being  filed  in  the  Returns  Office  of  the  Department  of  the 
Interior,  have  attached  to  it  an  affidavit  that  the  same  was  fairly 
made,  and  further  requires  that  the  affidavit  shall  be  taken  ''before 
some  magistrate  having  authority  to  administer  oaths."  The  act  of 
July  27, 1892  (27  Stat.,278),  provides  that  "judge  advocates  of  depart- 
ments and  of  courts-martial  and  the  trial  officers  of  summary  courts 
are  hereby  authorized  to  administer  oaths  for  the  purposes  or  the  ad- 
ministration of  miHtary  justice  and  for  other  purposes  of  mihtary 
administration."  Held,  that  the  oath  required  by  section  3745, 
R.  S.,  comes  within  the  language  "other  purposes  of  military  admin- 
istration" and  the  act  of  July  27, 1892,  having  been  passed  suDsequent 
to  the  Revised  Statutes  modifies  section  3745,  R.  S.  C.  3671,  Nov.  20, 
1897;  3746,  Dec.  30, 1897.  Held,  also,  that  the  administering  of  oaths 
to  sureties  on  a  Government  contractor's  bond  is  within  the  language 
"other  purposes  of  mihtary  administration."     C.  3768,  Jan.  6,  1898. 

XVIII.  In  settling  with  a  contractor  under  a  duly  executed  con- 
tract, there  may  be  set  off  against  the  amount  due  to  him  an  amount 
due  from  him  as  damages  under  the  terms  of  another  contract  which 
he  has  failed  to  perform,  provided  the  amount  due  from  him  is  a 
liquidated  amount.  But  where  the  amount  due  from  the  contractor 
is  not  liquidated,  the  Government  has  no  strict  legal  right  to  insist 
that  this  unhquidated  amount,  fijced  by  the  Government  itself  as 
properly  due  from  the  contractor,  shall  be  set  off  against  the  amount 
due  to  him.  But  although  the  strict  le^al  right  to  set  off  an  unliqui- 
dated claim  due  to  the  Government  against  the  amount  due  from  the 
Government  does  not  exist  in  favor  of  the  Government,  still  the  Gov- 


362  COITTRACTS  XVIII. 

ernment  has  an  equitable  right  to  withhold  in  its  discretion  money 
due  from  it  until  the  unliquidated  claim  can  be  adjusted  in  the  Court 
of  Claims,  which  has  jurisdiction  of  all  set-offs,  counterclaims,  claims 
for  damages,  whether  liquidated  or  unliquidated,  or  other  demands 
whatsoever,  on  the  part  of  the  Government  against  any  person  making 
claim  against  tho  Government  in  that  court.  R.  32,  257,  Jan.  25, 
1872;  C.  6841,  Aug.  4, 1899;  8973,  Nov.  23,1900;  19004,  Jan.  5, 1906. 
So,  where  the  Navy  Department  had  supplied  a  construction  company 
with  fresh  water  to  the  amount  of  $431.86  and  was  unable  to  collect 
this  amount,  and  the  same  company  had  a  contract  with  the  War 
Department,  held  that  the  above  amount  could  be  withheld  from 
money  due  or  to  become  due  the  company  under  its  contract  with  the 
War  Department,  and  this  whether  the  amount  was  liquidated  or 
unliquidated.  C.  684I,  Aug.  4j  1899.  So,  also,  where  a  dredging 
company  failed  to  perform  its  contract  with  the  Navy  Department 
and  the  amount  of  the  loss  to  the  Navy  Department  resulting  there- 
from was  uncertain,  lield,  that  an  amount  sufficient  to  cover  the 
Government's  loss  caused  by  the  failure  to  carry  out  the  Navy  con- 
tract might  be  withheld  from  money  due  the  company  under  another 
contract  with  the  War  Department.^  ^  C.  8973,  Sept.  18,  1900,  and 
Nov.  23,  1900.  So,  also,  where  a  prima  facie  claim  for  loss  to  the 
United  States  by  the  sinking  of  a  steamboat  on  the  Missouri  River, 
existed  against  a  contractor  for  transportation,  and  the  Government 
was  indebted  to  him  on  other  contracts,  advised  that  the  sums  due 
him  be  withheld  until  a  balance  should  be  mutually  agreed  upon,  or 
till  the  accounts  should  be  judicially  adjusted  upon  his  resorting  to 
proceedings  in  the  Court  of  Claims.  P.  36,  398,  Nov.  12,  1889.  But 
where  a  steamer  was  chartered  to  transport  troops,  and  the  ship  having 
met  with  an  accident  the  troops  on  board  were  required  to  work  at 
bailing  and  firing  the  ship,  as  the  result  of  which  their  clothing  and 
shoes  were  ruined,  and  it  was  sought  to  withhold  from  the  money  due 
for  the  charter  of  the  ship  the  value  of  the  clothing  and  the  shoes 

^  See  VII  Comp.  Dec. ,  213,  containing  the  comptroller's  decision  in  the  same  case,  in 
which  it  is  said: 

"As  this  Navy  contract  is  yet  unexecuted,  the  total  amount  of  actual  damage  which 
has  been  and  may  be  sustained  is  yet  unliquidated  and  unascertained;  therefore 
said  damage  is  not  a  proper  subject  for  a  set-off  against  a  definite  debt  owed  by  the 
United  States  to  the  contractors  under  an  independent  contract.  However,  if  at  the 
present  time  a  definite  ascertained  amount  of  damage  has  alreadj^  accrued,  I  think 
said  amount  would  be  a  proper  subject  of  set-off  and  should  be  retained,  especially  as 
it  is  understood  that  the  War  Department  contract  is  completely  executed  and  danger 
of  complications  with  the  sureties  on  that  contract  can  not  occur. 

"  So  far  this  subject  has  been  considered  as  to  the  legal  right  of  a  set-off  at  the  present 
time.  The  equitable  right  to  retain  money  due  the  contractors  as  security  against  prob- 
able loss  under  the  Navy  contract  is  a  different  matter,  especially  in  view  of  their  unrea- 
sonable delay  in  completing  that  work,  and  also  the  intimation  from  the  Navy  Depart- 
ment of  either  the  insolvency  of  the  principal  and  sureties  or  insufficiency  of  the  bond. 
Why  the  Navy  Department  has  permitted  10  months  to  elapse  since  the  default  with- 
out taking  steps  to  annul  the  contract  and  have  the  work  done  by  other  parties  does 
not  appear.  The  equitable  right  to  retain  the  money  now  due  the  contractors  under  the 
War  Department  contract  to  meet  probable  loss  under  the  Navy  contract  under  the 
circumstances  is  more  a  matter  of  public  policy  than  of  law.  As  a  matter  of  commcai 
justice  the  dredging  company  have  little  right  to  expect  the  United  States  to  payj 
them  money  now  due  and  take  the  chances  of  recovering  damages  from  them  undel 
the  Navy  contract  on  which  they  have  been  long  in  flagrant  default. 

"In  specific  answer  to  your  questions  I  will  say  that  unless  there  has  now  a  definit 
amount  of  damages  accrued  under  the  Navy  contract,  which  is  the  proper  subject  c 
a  set-off  as  indicated  above,  I  think  the  matter  of  withholding  money  due  the  com«| 
pany  rests  within  your  discretion,  having  due  regard  for  the  public  interests."- 


CONTRACTS   XIX   A.  363 

mined  and  an  additional  sum  as  wages  for  the  labor  rendered  by  the 
men,  held,  that  as  the  claims  were  private  claims  in  favor  or  the 
soldiers,  the  United  States  would  not  be  justified  in  withholding 
payments  due  the  owners  of  the  ship  to  compensate  them.  C.  9037, 
Oct.  J^,  1900. 

A  bidder  refused  to  enter  into  a  contract  after  the  acceptance  of 
his  bid,  which  was  accompanied  by  a  guaranty  that  if  the  bid  was 
accepted  the  contract  would  be  entered  into.  The  Government  was 
indetted  to  the  bidder  on  another  contract.  Held  that  the  accept- 
ance of  the  bid  did  not  constitute  a  contract  under  section  3744,  R.  S., 
and  created  no  debt  or  obligation  from  the  bidder,  that  the  Govern- 
ment had  an  action  on  the  guaranty  for  its  loss  occasioned  by  the 
refusal  to  enter  into  a  contract  (the  amount  of  the  loss  being  the  differ- 
ence between  the  bid  in  question  and  the  amount  for  which  a  con- 
tract might  afterwards  be  entered  into  with  another  person),  but  as 
the  bidder  was  not  a  party  to  the  guaranty  there  was  no  right  of  ac- 
tion against  the  bidder;  and  as  the  Government  had  no  right  of  action 
against  the  bidder  it  could  not  withhold  the  payments  on  the  other 
contract  to  compensate  the  Government  for  the  refusal  of  the  bidder 
to  execute  the  proposed  contract.  C.  19523,  Apr.  17,  1906.  Where 
a  contract  for  tne  construction  of  a  steamship  provided  for  the  pay- 
ment of  liquidated  damages  and  through  mistake  the  constructing 
officer  on  settlement  with  the  contractor  failed  to  deduct  the  hqui- 
dated  damages  that  had  accrued,  held  that  there  could  be  withheld 
from  the  contractor  money  due  him  on  another  contract  to  reimburse 
the  Government  for  the  erroneous  overpayment.  C.  2314-1,  June  S, 
1908. 

XIX  A.  Where  a  contract  provides  for  a  forfeiture  for  delay  in 
completing  a  contract,  but  does  not  state  whether  the  sums  to  be  for- 
feited are  to  be  regarded  as  penalties  or  as  hquidated  damages,  and 
where  the  actual  damages  are  capable  of  ascertainment,  the  forfeiture 
should  be  treated  as  a  penalty  from  which  to  indemnify  the  United 
States  for  the  actual  damages,  if  any,  and  the  excess  over  such  actual 
damages  should  be  remitted.^  G.  6Jfi7,  May  9,  1899;  6684,  July  6, 
1899. 

XIX  B.  A  contractor  agreed  to  furnish  certain  supplies,  the  con- 
tract providing  that  if  the  supplies  were  delivered  witnin  the  stipu- 
lated time  the  contractor  should  receive  a  certain  price,  but  that  for  a 
later  delivery  the  price  should  be  determined  by  deducting  from  the 
first-named  price  one-half  of  1  per  cent  for  each  day  of  delay.  Held, 
that  the  provision  for  a  reduction  in  price  was  a  penalty  for  delayed 
delivery,  and  that  the  contractor  was  entitled  to  receive  the  full  price 
less  actual  damages  only.     C.  19725,  May  15,  1906. 

XIX  C.  A  provision  in  a  contract  that  on  default  of  the  contractor 
all  sums  due  or  to  become  due  and  all  percentages  retained  shall  be 
forfeited  to  the  United  States  is  a  provision  for  a  penalty,  and  the 
contractor  on  default  is  entitled  to  payment  of  the  moneys  withheld 
over  and  above  any  actual  damage  sustained  by  the  United  States 
on  account  of  the  default.^  G.  5082,  Aug.  15,  1900;  7484,  Jan.  8, 
1901. 

XIX  D.  Where  a  contract  provides  for  the  doing  of  two  or  more 
things,  as,  for  instance,  for  tne  erection  of  two  or  more  houses  or 

'IVComp.  Dec,  217. 

2  See  VII  Comp.  Dec,  95;  15  Op.  Atty.  Gen.,  420;  Kennedy  v.  U.  S.,  24  Ct.  Cls.,  122. 


364  CONTEACTS  XIX  E. 

dredging  in  two  or  more  places,  or  for  the  furnishing  of  different  arti- 
cles, the  completion  and  use  of  no  one  of  them  being  connected  with 
or  dependent  upon^  the  completion  of  either  of  the  others,  and  pro- 
vides that  the  entire  contract  shall  be  completed  by  a  stipulated 
date,  and  the  entire  contract  is  not  so  completed  but  some  of  the 
thinp  to  be  done  are  entirely  completed  by  that  date,  a  provision 
in  the  contract  for  the  liquidated  damages  for  delay  will  not  be 
enforced,  but  will  be  construed  as  penalty.^  So,  Jield,  where  a  contract 
is  made  for  the  construction  of  two  new  water  tanks  and  the  altera- 
tion of  an  old  one  for  a  lump  sum.  O.  24450,  Feb.  6, 1909.  So,  where 
a  contract  was  made  for  the  erection  of  four  buildings.  C.  23801, 
Sept  1,  1908. 

XIX  E.  The  Government  advertised  for  bids  for  the  sale  of  certain 
stores.  Bidders  were  required  to  accompany  their  proposals  with 
current  funds  or  a  certified  check  for  20  per  cent  of  the  amount  of  the 
bid.  The  highest  bidder  deposited  a  certified  check,  but  failed  to 
carry  out  the  purchase.  Therefore,  the  contract  officer  declared  the 
check  forfeited.  Heldj  that  the  deposit  of  20  per  cent  was  a  penalty 
for  failure  to  comply  with  the  terms  of  the  sale,  and  that  it  should 
be  returned,  less  any  actual  damages  sustained  by  reason  of  the  failure 
to  carry  out  the  purchase.     G.  11420,  Oct.  22,  1901. 

XIX  F.  Where  in  a  Government  contract  it  is  provided  that  a  cer- 
tain sum  shall  be  paid  *'as  liquidated  damages"  for  each  day's  delay, 
and  such  sum  appears  to  be  grossly  in  excess  of  the  damages  which 
are  likely  to  accrue  for  the  failure  to  complete  the  contract  within 
the  stipulated  time,  thereby  violating  the  principle  that  liquidated 
damages  are  to  constitute  a  just  compensation  for  the  loss  or  injury 
actually  sustained  and  are  to  place  the  Government  in  as  good  a 
position  as  it  would  have  been  m  had  the  contract  not  been  broken, 
the  provision  for  liquidated  damages  will  be  construed  to  be  a  provi- 
sion for  a  penalty  which  will  be  enforced  to  the  extent  of  the  actual 
damages  only.  So,  held,  where  the  liquidated  damages  for  one  year 
would  be  from  19  to  27  per  cent  of  the  contract  price  of  the  buildings 
to  be  constructed  under  several  contracts.  G.  15977,  Feb.  29,  1904- 
So,  where  the  liquidated  damages  for  one  year  would  amount  to  40 
per  cent  of  the  contract  price  of  the  building  to  be  constructed  under 
the  contract.  G.  144^9,  Apr.  9,  1903.  So,  where  the  hquidated 
damages  in  one  year  would  amount  to  77  per  cent  of  the  contract 
price  of  the  building  to  be  constructed.  G.  14172,  Feb.  19, 1903.  So, 
where  the  liquidated  damages  in  one  year  would  amount  to  more  than 
twice  the  contract  price  of  the  building.  G.  11599,  Nov.  19,  1911. 
So,  where  the  liquidated  damages  in  one  year  would  amount  to 
nearly  three  times  the  contract  price  for  the  building  to  be  con- 
structed. ^  G.  13328,  Sept.  20,  1902.  But  where  certain  machines 
were  required  for  use  on  the  Panama  Canal,  and  at  the  time  of  the 
making  of  the  contract  there  was  supposed  to  be  urgent  need  of  them, 
and  the  liquidated  damages  would  amount  in  one  year  to  about  36 
per  cent  of  the  contract  price  of  the  machines,  held,  that  in  view  of  the 
circumstances  under  which  the  contract  was  entered  into  the  pro- 
vision for  liquidated  damages  should  not  be  construed  to  be  one  for  a 
penalty.  G.  25176,  June  12,  1909.  But  where  the  liquidated  dam- 
ages in  one  year  would  amount  to  only  1 1  per  cent  of  the  contract  price 
for  installing  an  electric-Hghting  system  at  Governors  Island,  N.  Y., 

1  See  VIII  Comp.  Dec,  487;  11  id.,  513;  14  id.,  617. 


CONTKAOTS   XIX   G.  365 

lield,  that  in  making  the  contract  the  principle  of  compensation 
had  not  been  disregarded,  and  the  provision  should  not  be  held  to  be 
one  for  a  penalty.  C.  16167,  Apr.  13,1904.  And  held,  that  it  could 
not  be  said  the  principle  of  compensation  had  been  ignored  where  the 
Uquidated  damages  in  one  year  would  amount  to  about  20  per  cent 
of  the  contract  price  for  installing  an  electric-lighting  system  at  Fort 
WilUam  McKinloy,  P.  I.     C.  24076,  Nov.  16,  1908. 

XIX  G.  Where  a  supplemental  contract  stipulated  that  ''any  addi- 
tional expense  or  other  loss  incurred  by  the  United  States  because  of 
the  failure  of  the  contractor  to  make  deliveries  as  originaJly  fixed, 
shall  be  charged  to  the  contractor  and  may  be  deducted  from  any 
money  due  or  that  may  become  due  under  said  contract."  Held,  that 
the  salary  and  expenses  of  an  inspector  for  the  period  of  the  exten- 
sion are  in  no  sense  penalties  imposed  on  the  contractor,  but  are 
actual  damages  sustained  by  the  United  States  and  must  be  withheld 
in  settlement  with  the  contractor.     C.  22270,  Oct.  28,  1907. 

XIX  H.  A  contract  for  liquidated  damages  provided  for  an  addi- 
tional allowance  of  time  ' 'on  account  of  unusual  f reside ts,  *  *  * 
State  quarantine  restrictions,  or  other  unforeseeable  cause  of  delay 
arising  through  no  fault  of  the  contractor,  and  which  actually  pre- 
vented such  contractor  from  commencing  or  completing  the  work  or 
delivering  the  material  within  the  period  required  by  the  contract." 
Held,  that  the  tardy  delivery  of  material  by  a  subcontractor  was  not 
an  ''unforeseeable  cause  of  delay  arising  through  no  fault  of  the  con- 
tractor."    C.  27659,  Oct.  31,  1911. 

XIX  I.  In  a  contract  for  supplying  potatoes  and  onions  it  was 
provided,  ''In  case  of  failure  of  the  party  of  the  second  part  to 
deliver  the  potatoes  and  onions  as  herem  stipulated,  the  depot 
commissary,  Manila,  P.  I.,  is  authorized  to  supply,  by  open  purchase 
or  otherwise,  any  deficiency  resulting  from  said  failure,  and  the  said 
party  of  the  second  part  shall  be  charged  with  any  excess  of  cost 
over  that  of  furnishing  at  contract  prices."  The  contractor  failed 
during  one  month  to  deliver  the  required  quantity  of  potatoes,  and 
as  the  United  States  was  unable  to  procure  potatoes  in  the  local 
market  it  purchased  what  was  considered  an  equivalent  of  canned 
tomatoes,  canned  sweet  potatoes,  and  canned  cabbage,  and  charged 
against  the  contractor  the  excess  of  cost  for  these  articles.  Held 
that  the  words  "any  deficiency  resulting  from  said  failure"  refers 
to  any  deficiency  in  potatoes  and  onions  and  under  the  above  pro- 
vision only  potatoes  and  onions  could  be  supplied,  but  Tield  further 
that  under  the  general  law  of  damages  the  parties  to  the  contract 
should  be  considered  to  have  contemplated  that  in  case  of  breach 
the  United  States  would  have  to  purchase  Hke  articles  elsewhere, 
and  in  case  of  inability  to  do  so  would  have  to  purchase  some  other 
articles  of  another  kind  as  a  substitute  for  them,  and  the  contractor 
should  be  held  responsible  for  the  increased  cost  of  such  purchases, 
and  therefore  that  the  charge  against  the  contractor  of  the  excess  of 
cost  for  these  articles  was  legal.  C.  18160,  Sept.  27,  1905,  and 
Bee.  28,  1906. 

XIX  I  1.  Where  contractors  for  installing  plumbing,  heating, 
and  fighting  were  unable  to  proceed  with  their  contracts  by  reason 
of  the  failure  of  another  contractor  A  to  construct  the  building,  and 
it  was  necessary  to  extend  the  time  for  completing  the  plumbing, 
heating,  and  lighting  at  an  increased  price  for  the  work,  held  the 


366  CONTKACTS  XIX  J. 

additional  cost  to  the  United  States  should  be  charged  against  the 
contractor  A  and  his  surety.     C.  20508,  Oct  18,  1906. 

XIX  J.  Under  a  contract  for  the  construction  of  two  river  steamers 
the  work  was  so  delayed  that  at  the  time  the  contracts  should  have 
been  completed  one  vessel  was  only  about  20  per  cent  constructed 
and  the  other  only  about  12  per  cent  constructed.  No  payment  had 
been  made  to  the  company,  and  there  had  been  no  acceptance  of 
the  partially  constructed  vessels.  Held  that  while  the  United 
States  might  under  the  terms  of  the  contract  take  charge  of  the  ves- 
sels and  complete  them  at  the  expense  of  the  company,  it  was  not 
required  to  do  so;  and,  further,  that  the  provision  for  liquidated 
damages,  while  it  contemplated  the  continuance  of  the  contract  for 
a  reasonable  time  after  the  date  fixed  for  its  complete  performance, 
could  not  properly  be  construed  to  provide  for  an  unreasonable 
extension  of  the  contract.  Therefore  recommended  that  the  con- 
tract be  treated  as  abandoned  ^  by  the  contractor,  and  that  the 
contractor  and  its  surety  be  notified  that  they  will  be  held  liable 
for  actual  damages  which  may  be  shown  to  result  from  the  breach, 
and  that  fresh  contracts  be  made  after  the  usual  advertisement. 
C.  15267,  Sept.  23,  1903. 

XIX  K.  A  contract  was  let  for  sinking  a  well  at  a  stipulated  price 
per  foot,  payments  to  be  made  as  the  work  progressed,  reserving  20 
per  cent  to  secure  the  completion  of  the  contract.  The  work  was 
taken  out  of  the  contractor's  hands  on  account  of  the  very  unsatis- 
factory progress  made.  Subsequently  the  Government  removed  the 
contractor's  plant  and  adopted  a  different  system  of  water  supply. 
Held  that  the  retained  percentages  were  to  secure  the  Government 
against  loss,  and  as  the  work  had  been  abandoned  by  the  Govern- 
ment and  a  new  water-supply  system  adopted  it  therefore  had  become 
impossible  to  ascertain  whether  the  Government  had  been  damaged, 
and  the  retained  percentages  for  work  already  done  should  be  paid 
to  the  contractor.     C.  1^029,  Jan.  22,  1903. 

XIX  L.  A  contract  for  furnishing  hay  to  be  shipped  to  Manila 
provided  that  all  hay  dehvered  under  the  contract  should  be  com- 
pressed to  a  density  of  72  cubic  feet  per  ton.  The  contractor  failed 
to  compress  the  hay  to  the  density  required  by  the  contract,  in 
consequence  of  which  the  Government  was  required  to  pay  excess 
freight  to  Manila.  Held,  that  notwithstanding  the  absence  of  an 
express  stipulation  in  the  contract  penalizing  the  contractor  for 
delivering  nay  not  sufficiently  compressed,  the  contractor  would 
be  legally  responsible  for  actual  damages  which  might  result  from 
his  failure  to  strictly  comply  with  his  contract  obligations,  and  that 
the  damages  so  suffered  could  properly  be  deducted  on  final  settle- 
ment from  moneys  due  the  contractor  under  his  contract.  C.  22666, 
Jan.  27,  1908. 

XIX  M.  A  contract  for  electrical  installation  in  a  building  being 
erected  by  another  contractor  provided  for  the  completion  of  the 
electrical  installation  by  March  6,  1910,  but  by  reason  of  the  failure 
to  complete  the  building  the  work  of  electrical  installation  could  not 
be  commenced  until  April  9,  1910.     After  that  date  the  work  was 

*  "If  there  be  no  performance  within  the  time,  the  contract  may  be  rescinded.  If 
there  be  substantial  performance,  with  only  minor  deficiencies,  it  may  not  be.  But 
a  defective,  negligent,  and  worthless  performance  is  the  same  as  no  performance  at 
all."     Miller  v.  Philipps,  31  Pa.  St.  (7  Casey),  218;  Lauman  v.  Young,  id.,  306. 


CONTRACTS  XIX   N.  367 

prosecuted  and  completed  with  reasonable  promptness.  The  con- 
tract for  electrical  installation  did  not  provide  for  liquidated  damages 
nor  a  penalty,  but  provided  that  the  excess  of  cost  resulting  from  a 
failure  to  complete  the  work  according  to  the  terms  of  the  contract 
should  be  charged  to  the  contractor.  Held,  that  actual  damages 
could  not  be  charged  for  the  period  that  the  contractor  for  electrical 
installation  was  delayed  in  commencing  the  work,  that  is,  up  to  April 
9,  1910,  and  that  after  that  date  he  was  entitled  to  a  reasonable  time 
for  completing  the  installation.^     C.  27978,  Mar.  15,  1911. 

XIX  N .  Bidders  for  the  construction  of  certain  dredges  for  the  use 
of  the  CaUfornia  Debris  Commission  were  required  to  deposit  a  cer- 
tified check,  which  check  was  to  be  returned  to  the  bidder  upon  his 
returning  to  the  Government  certain  plans  for  the  construction  of 
dredges,  which  were  turned  over  to  each  bidder.  Held,  that  if  the 
checks  were  not  intended  a$  liquidated  damages  nor  to  reimburse 
the  United  States  for  the  cost  of  the  plans,  the  contracting  officer,  in 
case  of  failure  to  return  the  plans,  could  legally  deduct  only  such 
sum  as  would  reasonably  reimburse  the  United  States  for  the  value 
of  the  plans  and  other  damages.     C.  29402,  Jan.  27,  1912. 

XX  A.  A  Government  contractor  for  the  construction  of  certain 
buddings  failed  financially,  and  certain  unpaid  material  men  claiming 
to  be  subcontractors  took  steps  to  obtain  a  lien  on  the  land  of  the 
United  States  on  which  the  buildings  stood.  Held,  that  as  sub- 
contractors their  claim  against  the  United  States  would  be  by  virtue 
of  having  succeeded  to  the  rights  of  the  original  contractor  by 
being  in  a  sense  substituted  for  him  in  the  contract.  But  this  would 
be  in  contravention  of  sec.  3737,  Rev.  Stat.,  which  prohibits  the 
transfer  of  a  contract  or  order  or  any  interest  therein,  since  it  would 
amount  to  a  transfer  to  the  subcontractors  of  an  interest  in  the 
contract.  This  section  was  intended  for  the  protection  of  the  United 
States,  and  to  secure  it  from  the  necessity  of  having  to  decide  con- 
troverted questions  of  liens  and  assignments,  and  must  be  held  to 
apply  to  indirect  as  well  as  direct  transfers.  To  recognize  a  lien  on 
the  part  of  a  subcontractor  would  be  to  sanction  an  indirect  transfer 
of  an  interest  in  a  contract.  P.  29,  210,  Jan.  8,  1889;  48,  341,  Aug. 
1,  1891;  C.  2457,  July  20,1896. 

A  subcontractor  for  building  materials  furnished  a  Government 
contractor  at  Fort  Riley,  Kans.,  could  not  enforce  a  lien  against  the 
United  States  under  the  statutes  of  that  State.^  This,  for  the 
reasons  among  others:  1st.  That  the  State  law  requires  that  the  lien 
be  prosecuted  in  the  State  district  court,  a  tribunal  in  which  the 
United  States  is  not  suable.  Thus  the  remedy  can  not  be  pursued 
against  the  United  States  as  owner  of  the  buildings.  2d.  That  public 
policy  forbids  the  obstruction  of  the  legal  operations  of  the  United 
States  by  State  legislation  or  process.     P.  29,  210,  Jan.  8,  1889. 

There  is  no  law  of  the  United  States  which  authorizes  an  inter- 
ference, by  means  of  a  material-man's  lien,  with  an  instrumentality 
of  government  in  the  District  of  Columbia.  Soldiers'  homes  are 
instruinentalities  of  government.^  Held,  therefore,  that  a  mechanic's 
(material-man's)  lien  filed  against  the  amusement  hall  at  the  Soldiers' 

^  See  XV  Comp.  Dec.,  362,  for  a  corresponding  decision  where  the  contract  contained 
a  provision  for  liquidated  damages. 
^  See  23  Op.  Atty.  Gen.  176  to  same  effect. 
3  In  re  Kelly,  71  Fed.  Rep.,  545, 


368  CONTRACTS   XX   E. 

Home,  Washington,  D.  C,  could  not  be  recognized  as  a  ground  for 
withholding  payments  due  the  contractor  who  had  built  it.  C,  2Jf.57, 
July  20,  1896, 

XX  B.  A  contract  stipulated — according  to  a  usual  form — that  the 
contractor  should  be  responsible  for  and  pay  all  liabilities  incurred 
for  labor  or  materials.  After  its  completion  certain  subcontractors 
who  had  furnished  materials  to  the  contractor  applied  to  the  Secre- 
tary of  War  for  his  consent  to  their  suing  the  sureties  on  the  con- 
tractor's bond,  in  the  name  of  the  United  States,  for  their  own  use, 
for  the  sums  claimed  by  them.  Held  that  no  such  consent  could 
legally  be  given,  for  the  following  reasons:  (1)  The  contract  had 
been  duly  performed.  (2)  If  not  performed,  to  yield  the  claim 
would  be  to  part  with  a  right  of  action,  property  of  the  United  States, 
without  the  authority  of  Congress.  (3)  The  contract  did  not  author- 
ize or  provide  for  such  a  proceeding.  'The  covenant  referred  to  is 
inserted  mainly  to  further  a  prompt  performance  and  incidentally 
to  protect  the  United  States  from  being  recurred  to  by  the  creditors 
of  contractors.  The  failure  to  observe  the  covenant  would  doubtless 
give  the  United  States  a  remedy  in  damages  against  the  contractor 
and  his  sureties  in  case  appreciable  damages  were  suffered.  But 
such  damages,  if  any,  would  be  wholly  independent  of  the  liabilities 
which  the  contractor  might  be  under  to  his  creditors  and  would  not 
be  measured  by  their  amount.  Thus  Jield  that  the  suit  proposed 
could  be  instituted  only  by  the  authority  of  legislation.^     P.  56,  265, 

XX  C  1.  The  act  of  August  13,  1894  (28  Stat.  278),  required  that 
in  the  ^'construction  of  any  public  building  or  the  prosecution  and 
completion  of  any  public  work"  bond  should  be  given  conditioned 
for  the  payment  of  persons  supplying  ''labor  and  material,"  and 
gave  to  such  persons  the  right,  if  not  promptly  paid,  to  recover  on 
such  bond.  Held  that  in  practice  the  act  has  been  understood  to 
apply  to  the  removal  of  wrecks  from  navigable  waters  or  the  dredging 
of  channels  therein,^  and  as  the  act  is  a  remedial  one  it  should  be 
liberally  construed,  and  a  bond  exacted  unless  it  is  clear  the  contract 
does  not  involve  the  "prosecution  or  completion  of  any  public  work" 
within  the  meaning  of  the  statute.  C.  24519,  Feb.  19,  1909.  Held, 
also,  that  the  act  covered  repairs  upon  an  Army  transport  wherever 
the  repairs  are  made,  the  reason  being  that  the  title  continues  in  the 
Government  and  therefore  no  lien  on  it  can  be  acquired.  C.  8430, 
June  2,  1900;  8429,  June  15,  1900;  9356,  Nov.  27,  1900;  19164,  Feb. 
9,  1906.  But  the  act  does  not  cover  .work  on  a  statue  which,  until 
the  time  of  its  acceptance,  remains  the  property  of  the  contractor 
and  is  subject  to  any  remedy  provided  by  law  for  the  protection  of 
persons  supplying  labor  and  material.^  O.  25761,  Nov.  12,  1909,  and 
Dec.  22,  1909. 

^  Such  authority  has  been  given,  since  the  date  of  this  opinion,  in  the  act  of  Aug. 
13,  1894  (28  Stat.  278),  amended  by  the  act  of  Feb.  24,  1905  (33  Stat.  811). 
Nov.  2,  1892. 

2  See  Ellis  v.  U.  S.  206,  U.  S.,  246,  where  the  phrase  "any  of  the  public  works"  in 
the  Eight-Hour  Law  was  held  by  a  divided  court  not  to  include  dredging  a  channel 
in  Boston  Harbor. 

^  See  23  Op.  Atty.  Gen.  174,  to  the  effect  that  the  act  does  not  refer  to  contracts  for 
the  construction  of  a  naval  vessel,  where  the  whole  title  remains  in  the  contractor 
until  its  completion  and  acceptance  by  the  Government.  See  also  26  Op.  Atty. 
Gen.  30. 


OONTBACTS  XX   C   2.  369 

XX  C  2.  As  the  act  of  August  13,  1894  (28  Stat.  278),  does  not 
expressly  provide  that  it  shall  govern  contracts  made  abroad,  and  in 
the  hght  of  the  principle  that  the  laws  of  any  State,  can  not,  by  any 
inherent  authority,  operate  beyond  the  limits  of  that  State,  it  is 
beheved  the  statute  does  not  apply  to  a  contract  made  and  to  be  per- 
formed in  a  foreign  country.  In  the  absence  of  a  stipulation  to  the  con- 
trary such  contract  is  to  be  understood  as  made  with  reference  to  the 
laws  of  such  foreign  State  and  as  governed  thereby.  Held,  also,  that  if 
the  laws  of  the  foreign  State  give  a  hen  upon  a  vessel  so  constructed  in 
a  foreign  country,  umess  payment  is  made  to  labor  and  material-men, 
a  claim  might  be  made  against  the  United  States  on  the  acquisition 
of  the  vessel  subject  to  such  Hen.     C.  19164,  Feb.  I4,  1906. 

XX  C  3.  Under  the  act  of  August  13,  1894  (28  Stat.  278),  a 
certified  check  could  not  be  received  in  Ueu  of  the  bond  for  the  pay- 
ment of  labor  and  material-men.     C.  2^519,  Feb.  20,  1909. 

XX  C  4.  The  act  of  August  13,  1894  (28  Stat.  278),  recjuires  that 
a  certified  copy  of  the  contractor's  bond  shall  be  furnished  upon 
application  accompanied  by  an  affidavit.  Held,  that  an  affidavit 
"upon  information  and  belief"  by  the  attorney  of  a  material-man,  or 
by  an  assignee  of  a  person  who  furnished  labor,  is  not  a  sufficient 
'Compliance  with  the  act,  the  affidavit  should  be  of  the  party  furnish- 
ing the  labor  or  material  or  at  least  of  some  one  who  can  speak  from 
his  own  knowledge,  but  as  the  act  does  not  restrict  the  authority  of 
the  Secretary  of  War  as  to  furnishing  a  copy  on  less  evidence  than  is 
specified  in  the  act,  there  is  no  legal  objection  to  his  doing  so.  C.  8996, 
Sept.  24,  1900;  13560,  Oct.  SO,  1902;^  14029,  Aug.  12,  1904. 

XX  C  5.  Where  a  bond  has  been  given  under  the  act  of  August  13, 
1894  (28  Stat.  278),  as  amended  by  the  act  of  February  24,  1905 
(33  Stat.  811),  and  it  is  clear  that  the  contract  has  been  completely 
performed  so.  that  there  will  be  no  suit  on  the  bond  by  the  United 
States,  a  copy  of  the  contract  and  bond  should  be  furnished  upon 
proper  apphcation,  without  waiting  for  the  expiration  of  the  period 
of  six  months  from  the  completion  and  final  settlement  of  the  contract. 
C.  19264,  Mar.  29, 1909.  So,  also,  they  should  be  furnished  notwith- 
standing a  receiver  had  been  appointed  for  the  contractor,  and  all 
creditors  had  been  directed  by  the  court  to  present  their  claims  to  the 
receiver,  and  the  apphcant  for  the  bond  had  failed  to  present  his 
claim.  C.  19264,  Apr.  12,  1909.  If,  however,  suit  has  been  brought 
by  the  Government,  parties  furnishing  labor  or  material  may  inter- 
vene in  such  suit  but  should  not  be  furnished  a  copy  of  the  contract 
and  bond.     C.  19264,  June  28,  1909. 

XX  C  6.  The  new  obligation  *  of  the  surety  under  the  act  of  August 
13,  1894  (28  Stat.  278),  does  not  create  an  additional  obligation  on 
the  part  of  the  United  States  in  the  nature  of  an  equitable  lien  or 
other  right  against  the  United  States.  The  United  States  has  no 
right  to  withhold  any  funds  due  a  contractor  for  the  purpose  of 
indemnifying  a  surety  for  moneys  paid  out  by  him  to  material  men 
and  laborers.2     For  the  United  States  to  withhold,  except  fqr  its  own 

^  "The  bond  which  is  provided  for  by  the  act  was  intended  to  perform  a  double 
function:  In  the  fu-st  place  to  secure  to  the  Government,  as  before,  the  faithful  per- 
formance of  all  obligations  which  a  contractor  might  assume  toward  it;  and  in  the 
second  place,  to  protect  third  persons  from  whom  the  contractor  obtained  materials 
or  labor."  U.  S.  v.  National  Surety  Co.,  92  Fed.  Rep.,  549:  U.  S.  v.  Rundle,  100 
Fed.  Rep.,  400. 

2  See  III  Comp.  Dec,  708;  XV  id.,  711;  XVI  id.,  426. 
31106°— 12 24 


370  CONTRACTS  XX   C   7. 

protection,  payments  due  a  contractor  in  order  to  pay  therewith 
either  liabihties  on  the  part  of  the  contractor  or  to  indemnify  his 
surety  would  be  an  assumption  by  the  United  States  to  insure  the 
very  payments  which  are  intended  to  be  secured  by  the  provisions  of 
the  contract  and  the  bond,  and  would  cause  the  United  States  through 
the  disbursing  officers  to  adjudicate  the  matters  of  fact  and  law 
arising  between  contractors  and  their  creditors.  G.  7311,  Nov.  21, 
1899;  15003,  July  29,  1903;  20410,  Sept  27,  1907;  23265,  July  20, 
1909;  23079,  Apr.  4,  1911;  20423,  Nov.  4,  1^11.  So,  where  the 
surety,  claiming  that  it  was  the  intention  of  the  contractor  to  decamp 
from  the  United  States  after  receiving  his  money  and  to  defraud  the 
labor  and  material-men,  had  obtained  an  injunction  from  a  State  court 
prohibiting  the  contractor  from  receiving  the  money  due  him  from 
the  United  States,  Tield,  the  United  States  had  no  right  to  withhold 
at  the  request  of  the  surety  on  the  contractor's  bond  money  due  the 
contractor.     C.  20021,  July  10,  1906. 

XX  C  7.  A  contract  was  modified  by  supplemental  agreement 
without  the  consent  of  the  surety  on  the  contractor's  bond.  Held, 
that  under  the  act  of  August  13,  1894  (28  Stat.  278),  a  contractor's 
bond  may  be  considered  as  in  effect  two  obligations,  one  to  the 
United  States  to  secure  the  due  performance  of  the  contract,  and  the 
other  to  the  United  States,  but  on  behalf  of  labor  and  material-men, 
to  secure  their  payment,  and  that  the  obligation  for  the  benefit  of 
the  labor  and  material-men  was  not  released  by  the  action  of  the 
contractor  and  the  United  States  in  modifying  tne  contract  without 
the  surety's  consent.^     G.  17474,  Feb.  3,  1905. 

XX  C  8.  Where  the  United  States  contracted  with  the  board  of 
water  commissioners  of  a  city  for  the  construction  of  a  water  main 
to  supply  water  to  a  Government  post,  held,  that  it  was  doubtful 
whether  a  contract  with  such  an  instrumentality  of  a,  municipality 
was  within  the  true  intent  of  the  act  of  August  13,  1894  (28  Stat. 
278),  and  recommended  that  no  bond  be  exacted  for  the  protection 
of  persons  suppl3dng  labor  and  materials.     G.  25610,  Sept.  24,  1909. 

XX  C  9.  A  contract  was  entered  into  conditioned  as  required  by 
the  act  of  August  13,  1894  (28  Stat.  278),  and  the  principal  and  surety 
having  failed  to  pay  a  subcontractor  money  due  him  the  subcon- 
tractor requested  the  War  Department  to  strike  the  surety  company 
from  the  list  of  companies  acceptable  to  the  War  Department  with 
a  view  to  compelling  it  to  settle  its  alleged  obligation  to  the  subcon- 
tractor. Held  that  such  action  on  the  part  of  the  War  Department 
was  outside  of  its  duty  under  the  act  in  question.  G.  10553,  June  4, 
1901. 

XX  C  10.  Where  a  Government  contractor  went  into  bankruptcy 
the  purchaser  under  a  bankrupt  sale  of  the  contract  rights  of  the  con- 
tractor may  be  recognized  and  permitted  to  carry  out  the  Govern- 
ment contract.  In  such  a  case  a  bond  given  by  the  original  contractor 
conditioned  for  the  faithful  performance  of  the  work  by  the  original 
contractor  will  continue  in  force,  and  the  sureties  thereon  will  be 
liable  for  any  damages  suffered  by  the  Government  by  reason  of  the 
failure  of  the  original  contractor  to  fully  perform  the  contract.     But 

»See  Conn.  v.  State,  125  Ind.,  514;  46  Nebr.,  644;  41  Nebr.,  655;  40  Minn.,  27; 
U.  S.  V.  Rundle,  100  Fed.  Rep.,  400;  U.  S.  v.  National  Surety  Co.,  92  id.,  549;  U.  S.  v. 
American  Bonding  Co.,  89  id.,  921;  U.  S.  Fidelity,  etc.,  Co.,  v.  Golden  Pressed  Brick 
Co.,  191  U.S.,  416. 


CONTRACTS   XX   C   11.  371 

in  such  a  case  a  bond  given  by  the  original  contractor  to  protect  labor 
and  material  men  under  the  act  of  August  13,  1894  (28  Stat.  278), 
would  not  continue  in  force  as  such  a  bond  is  hmited  by  the  terms  to 
labor  and  material  supphed  to  the  original  contractor.  The  pur- 
chaser of  the  original  contractor's  contract  rights  should  furnish  a 
new  bond  to  secure  labor  and  material-men.^     u.  23265,  Oct,  SO,  1908. 

XX  C  11.  Where  a  contractor  defaulted  and  a  supplemental 
agreement  was  entered  into  by  which  the  original  contract  was  termi- 
nated, and  the  surety  of  the  contractor  undertook  the  work  in  its 
own  name,  held  that  such  surety  should  give  bond  to  protect  labor 
and  material-men  as  required  by  the  act  oi  August  13,  1894  (38  Stat. 
278).     0.  18079,  Oct.  1,  1906. 

XX  C  12.  The  act  of  August  13,  1894  (28  Stat.  278),  it  is  believed 
protects  persons  furnishing  labor  or  materials  to  subcontractors  as 
well  as  to  the  original  contractor,  but  whether  it  does  or  not  is  a 
proper  question  for  the  courts  to  determine.  Advised,  therefore,  that 
a  party  who  had  furnished  material  to  a  subcontractor,  be  given  a 
certified  copy  of  the  contract  and  bond  upon  filing  the  affidavit 
required  by  the  act.^     0.  1908,  Jan.  4,  1896. 

XX  C  13.  A  party  entered  into  a  formal  contract  with  the  United 
States  for  certain  work.  He  submitted  two  bonds,  but  both  were 
rejected  because  not  properly  executed.  In  the  meantime  he  com- 
pleted the  work  to  the  satisfaction  of  the  Government,  but  owing  to 
his  failure  to  furnish  a  bond  as  required  by  the  act  of  August  13,  1894 
(28  Stat.  278),  for  the  protection  of  persons  supplying  labor  and 
materials,  no  payments  had  been  made  under  the  contract.  Held, 
that  until  such  bond  was  filed  no  payment  should  be  made ;  and  that 
this  rule  would  apply  to  the  assignee  of  the  contractor  if  one  had  been 
appointed.     C.  4082,  ^  May  3,  1898. 

XX  C  14.  The  certified  copy  of  the  contract  and  bond  to  be  fur- 
nished under  the  act  of  August  13,  1894  (28  Stat.  278),  should,  in 
accordance  with  section  882,  R.  S.,  be  authenticated  under  the  seal 
of  the  War  Department  in  order  that  such  copy  may  be  in  proper 
form  for  use  as  evidence.     C.  1743,  Sept.  24,  1'895. 

XX  C  15.  A  duly  certified  copy  of  the  contract  and  bond  relating 
to  material-men  having  been  furnished  under  the  act  of  August  13, 
1894  (28  Stat.  278),  the  party  furnished  with  a  copy  may  institute 
suit  as  provided  therein,  and  it  is  not  necessary  for  him  first  to  obtain 
the  permission  of  the  Secretary  of  War.     C.  2319,  May  25,  1896. 

XXI  A.  Where  a  contract  for  the  delivery  of  lumber  provided  that 
in  case  of  failure  to  prosecute  faithfully  and  diligently  the  delivery  in 
accordance  with  the  specifications  and  requirements  of  the  contract, 
then  the  contracting  officer  should  have  power,  with  the  sanction  of 

^  But  see  Mullin  v.  U.  S.,  109  Fed.  Rep.,  817,  that  "where  a  contractor  and  obligor 
on  a  bond  given  under  the  act  of  Aug.  13,  1894,  gave  up  the  work,  and  with  the  con- 
sent of  all  concerned  an  indemnitor  of  the  surety  to  the  bond  took  up  the  completion 
of  the  work  for  the  contractor,  under  the  contract  with  the  Government,  and  where  a 
company  kept  onitnd  furnished  materials  and  labor  to  those  taking  up  such  contracts, 
under  their  contract  with  the  original  contractor  with  the  Government,  such  furnish- 
ing of  materials  and  labor  is  covered  by  the  bond  of  the  contractor  and  such  company 
comes  within  the  description  of  'all  persons  supplying  him  labor  and  materials  in  the 
prosecution  of  the  work. '  " 

2  See  U.  S.  V.  American  Surety  Co.,  200  U.  S.,  197,  to  the  effect  that  labor  and  mate- 
rials furnished  to  a  subcontractor  are  within  the  obligation  of  the  bond. 


372  CONTEACTS   XXI  B. 

the  Chief  of  Engineers,  to  annul  the  contract  by  giving  notice  in 
writing  to  that  effect  to  the  contractor;  and  provided  further,  that 
upon  the  giving  of  such  notice  all  money  or  reserved  percentages  due 
or  to  become  due  to  the  contractor  should  become  forfeited  to  the 
United  States,  and  that  the  United  States  should  have  authority  to 
provide  the  lumber  by  open  purchase  or  contract.  Held  that  the 
mere  failure  to  dehver  the  lumber  within  the  time  named  in  the  con- 
tract did  not  operate  as  a  forfeiture  of  the  retained  percentages,  but 
that  there  must  be  some  positive  action  on  the  j)art  of  the  contracting 
officer  indicating  an  intention  to  annul,  and  this  intention  should  be 
communicated  to  the  contractor.^     P.  84,  2^9,  Aug.  2,  1889. 

XXI  B.  A  breach  of  some  term  of  the  contract,  as,  in  a  case  of  a 
contract  for  suppUes  for  the  Army,  a  failure  to  dehver  some  of  the 
articles  at  the  agreed  time,  will  not  ordinarily,  in  the  absence  of  an 
express  covenant  to  that  effect,  authorize  the  Secretary  of  War  to 
declare  the  contract  annulled,  but  will  give  the  United  States  only  a 
right  of  action  for  damages.  P.  29,  324,  Jan.  16,  1889;  34,  261, 
Aug.  5,  1889. 

XXI  C.  A  contract  was  regularly  annulled  in  accordance  with  its 
terms.  Held  that  the  action  of  annulment  was  final  and  that  such 
action  could  not  be  rescinded  so  as  to  revive  the  contract.^  C.  7931, 
Apr.  7,  1900. 

XXI  D.  The  contract  for  a  river  improvement  provided  for  its 
annulment  in  case  of  the  default  of  the  contractor  and  for  its  comple- 
tion by  the  Government,  ''the  Government  to  take  possession  of  and 
retain  all  materials,  tools,  buildings,  tramways,  cars,  etc.,  or  any  part 
or  parts  of  the  same  prepared  for  use  or  in  use  in  the  prosecution  of 
the  work,  together  with  any  or  all  leases,  rights  of  way,  or  quarry 
privileges,  under  purchase  and  at  a  valuation  to  be  determined  by 
the  engineer  officer  in  charge."  The  contractor  having  defaulted 
and  the  United  States  having  taken  possession  under  the  above  pro- 
vision, lield  that  the  Government  took  possession  hy  way  of  purchase, 
and  that  for  the  purpose  of  giving  the  defaulting  contractor  and  its 
surety  the  proper  debit  and  credit  in  final  settlement,  the  plant  should 
be  revalued,  the  United  States  to  receive  credit  for  any  depreciation 
in  the  value  of  the  plant  resulting  from  its  use  in  the  prosecution  of 
the  work,  and  that  as  there  was  nothing  in  the  contract  requiring  the 
plant  to  be  sold  for  what  it  would  bring  upon  the  completion  of  the 
particular  contract,  there  would  be  no  legal  objection  to  using  the 
plant  on  other  works  of  improvement,  upon  giving  proper  credit  to 
the  appropriation  from  which  it  was  purchased,  u.  27890,  Mar.  6, 
1911. 

XXI  E.  A  Government  contract  provided  that  if  the  contractor 
should  ''fail  to  prosecute  faithfully  and  diligently  the  work  in  accord- 
ance with  the  specifications  and  requirements  of  this  contract,"  the 
contract  might  be  annulled^  by  the  Government,  and  further  provided 
for  liquidated  damages,  Jield  that  the  mere  failure  of  the  contractor 
to  complete  the  work  within  the  stipulated  time  would  not  authorize 

1  See  Kennedy  v.  United  States,  24  Ct.  Cls.,  122. 

2IVComp.  Dec.,679. 

3  See  United  States  v.  O'Brien,  220  U.  S.,  321,  construing  language  similar  to  that 
used  in  the  above  contract,  and  further  holding  that  the  word  "annulled  "  as  used  in 
the  contract  was  incorrectly  used,  the  word  being  used  in  the  sense  of  "refusing  to 
perform  further, ' '  and  not  m  the  sense  of  rescinding  or  avoiding.  See  also  United 
States  V.  McMuUen,  222  U.  S.,  460. 


CONTRACTS  XXII  A.  373 

the  Government  to  declare  the  contract  to  ''have  expired  by  Hmita- 
tion,"  nor  would  it  authorize  the  annulment  of  the  contract,  but  that 
to  justify  an  annulment  there  should  be  a  substantial  failure  on  the 
part  of  the  contractor  ''to  prosecute  faithfully  and  diligently  the  work 
in  accordance  with  the  specifications  and  requirements."  C.  9201  j 
Nov.  1,  1900, 

XXII  A.  An  unreasonable  delay  to  commence  the  delivery  under 
a  contract  may  indicate  an  abandonment  on  the  part  of  the  contractor 
which  will  justify  the  Government  in  treating  the  contract  as  relin- 
quished and  will  release  the  Government  from  the  contract.  P.  29j 
324,  Jan.  16,  1889;  84,  261,  Aug.  6,  1889. 

XXII  B.  Wliere  a  contractor  for  furnishing  certain  articles  to  the 
Government  did  not  make  satisfactory  progress  in  the  work  and  was 
frequently  urged  to  furnish  at  least  a  part  of  the  articles  to  be  supplied, 
but  failea  to  supply  the  articles  or  to  give  any  satisfactory  informa- 
tion concerning  the  probable  date  of  furnishing  them,  and  moved 
away  from  its  place  of  business  without  giving  any  new  address,  lield 
that  the  facts  mdicated  a  repudiation  of  the  contract,  and  the  con- 
tracting officer  was  justified  in  taking  steps  prior  to  the  arrival  of  the 
date  when  the  contract  should  have  been  completed,  to  supply  the 
deficiency  according  to  the  terms  of  the  contract.  O.  24689,  Mar, ' 
27,  1909. 

XXIII  A.  Where  it  was  proposed  that  a  clause  be  inserted  in  Gov-1 
emment  contracts  which  would  prohibit  the  employment  on  Govern- ; 
ment  work  of  any  but  citizens  or  those  who  had  declared  their  inten- 
tion to  become  citizens,  held,  that  there  was  no  law  which  authorized 
the  insertion  of  such  a  provision  in  Government  contracts  and  that 
in  the  absence  of  such  legislation  the  Secretary  of  War  was  without 
authority  to  require  it.  C.  2087,  Feb.  29, 1896;  15451,  July  27,  1905. 
In  the  absence  of  a  statute  restricting  the  purchase  of  supplies  in- 
tended for  use  in  the  military  service  to  articles  of  domestic  produc- 
tion {C.  16057,  Mar.  21,  1904),  or  restricting  the  purchase  to  articles 
produced  by  American  labor  only  {C.  18209,  June  27,  1905),  there  is 
no  authority  to  restrict  the  same  by  executive  regulation.^ 

XXIII  B.  In  the  absence  of  any  statutory  regulation  of  the  sub- 
ject, held  that  the  Secretary  of  War  is  not  empowered  to  exercise  con- 
trol over  the  labor  employed  by  the  contractors  for  the  work  on  the 
jetties  at  Galveston,  Tex.,  or  to  prevent  their  availing  themselves 
of  the  labor  of  convicts  authorized  by  the  laws  of  Texas  to  be  hired 
out  to  contractors.  The  only  statute  of  the  United  States  relating 
to  the  use  of  such  labor — that  of  February  23,  1887  (24  Stats.  411) — 
merely  makes  it  a  criminal  offense  to  hire  out  criminals  incarcerated 
for  offenses  against  the  United  States,  prescribing  a  penalty.  But 
even  this  statute  the  Secretary  of  War  has  no  authority  to  enforce, 
but  the  same  is  to  be  executed  in  the  same  manner  as  any  other  crim- 
inal statute  of  the  United  States.  P.  48,  402,  Aug.  7,  1891;  O. 
3542,  Sept.  24,  1897. 

^  Sec.  3716,  R.  S.,  provides  that  "the  Quartermaster's  Department  of  the  Army,  in 
obtaining  supplies  for  the  military  service,  shall  state  in  all  advertisements  for  bids 
for  contracts  that  a  preference  shall  be  given  to  articles  of  domestic  production  and 
manufacture,"  etc.  The  act  of  Mar.  3,  1875  (18  Stat.,  455),  provided  that  "In  all 
contracts  for  material  for  any  public  improvement,  the  Secretary  of  War  shall  give 
preference  to  American  material;  and  all  labor  tiiereon  shall  be  performed  within  the 
jurisdiction  of  the  United  States." 


374  CONTRACTS    XXIII   C. 

XXIII  C.  There  is  no  statute  requiring  or  justifying  the  annul- 
ment of  a  contract  with  the  United  States  on  the  ground  that  Italian 
labor  was  being  employed  in  its  execution.     C.  4^52,  July  23,  1898. 

XXIII  D.  An  Executive  order  of  May  18,  1905,  published  in  Gen- 
eral Order  78,  War  Department,  May  31,  1905,  provided  that  ''All 
contracts  which  shall  hereafter  be  entered  into  by  officers  or  agents 
of  the  United  States  involving  the  employment  of  labor  in  the  States 
composing  the  Union,  or  the  Territories  of  the  United  States  contigu- 
ous thereto,  shall,  unless  otherwise  provided  by  law,  contain  a  stipu- 
lation forbidding,  in  the  performance  of  such  contracts,  the  employ- 
ment of  persons  undergoing  sentences  of  imprisonment  at  hard  labor 
which  have  been  imposed  by  courts  of  the  several  States,  Territories, 
or  municipalities  having  criminal  jurisdiction."  Held,  that  as  the 
order  restricts  the  freedom  of  contracts,  it  should  be  strictly  con- 
strued, and  that  in  a  case  where  a  contract  was  entered  into  for  the 
erection  of  a  building,  the  above  Executive  order  did  not  apply  to 
bricks  made  by  convict  labor  and  procured  by  the  contractor  in  the 
open  market.  C.  18831,  Nov.  9,  1905.  Where  a  contract  was  made 
to  furnish  ''all  labor,  plant,  and  appliances  necessary  and  incident 
to  the  delivery,  loaded  on  board  of  railroad  cars  at  Vidalia,  La., 
*  *  *  of  7,000  tons  of  rock,''  held  that  under  the  Executive  order 
of  May  18,  1905,  quoted  above,  if  it  was  contemplated  that  the  con- 
tractor should  quarry  and  deliver  the  stone,  the  contract  involved  the 
"employment  of  labor,"  both  as  respects  the  quarrying  and  the 
delivery  of  the  stone.  C.  20668,  Nov.  24,  1906.  Also,  where  a  con- 
tract was  to  furnish  all  materials  and  labor  necessary  to  launder 
certain  articles,  held,  that  the  contract  involved  the  "employment 
of  labor."  C.  18102,  June  7,  1905.  And,  also,  where  a  contract  was 
for  the  manufacture  of  an  article  according  to  a  particular  specifica- 
tion and  the  matter  was  treated  by  the  Government  as  a  purchase  of 
the  article  itself  rather  than  as  a  contract  for  work  or  the  employ- 
ment of  labor,  held,  the  Executive  order  of  May  18,  1905,  did  not 
apply.  C.  18102,  June  7,  1905.  Also,  where  it  was  desired  to  work 
a  thousand  convicts  from  Bilibid  prison  in  the  construction  of  fortifi- 
cations on  Corregidor  Island,  held,  that  the  above  Executive  order 
would  prevent  a  contract  from  being  entered  into  with  the  Philippine 
government  to  obtain  the  services  of  its  prisoners  at  a  cost  per  man 
per  day  equal  to  their  keep,  but  that  if  the  Philippine  government 
was  willing  to  employ  its  prisoners  in  the  construction  of  United 
States  fortifications,  as  the  United  States  benefited  by  their  employ- 
ment, it  might  lawfully  charge  the  cost  of  their  support  and  sub- 
sistence against  the  appropriation  for  the  construction  of  the  defen- 
sive works  on  Corregidor  Island.     C.  2^573,  Mar.  2,  1909. 

XXIII  E.  The  law  does  not  prescribe  that  citizens  or  any  other 

g articular  class  of  persons  shall  be  the  only  competent  bidders  for 
rovernment  contracts  or  that  aliens  shall  not  be  competent  to  bid. 
P.  49,  134,  Sept.  9,  1891. 

XXIII  F.  A  contract  prohibited  the  employment  by  the  contractor 
of  convict  labor  in  the  execution  of  the  contract,  and  provided  fur- 
ther that  the  contractor  should  not  "permit  such  employment  bv  any 
person  furnishing  labor  or  material  to  said  contractor  in  the  fulfillment 
of  this  contract."  Held  that  if  the  contractor  procured  his  coal  from 
one  who  bought  it  from  the  State  of  Tennessee,  which  uses  convict 


CONTRACTS  XXIII  G.  375 

labor  in  mining  its  coal,  the  contractor  would  not  be  violating  his 
contract.     C.  23652,  July  27,  1908. 

XXIII  G.  Section  2  of  the  act  of  March  3,  1875  (18  Stat.  455),  pro- 
vides that  ''in  all  contracts  for  material  for  any  public  improvement 
the  Secretary  of  War  shall  give  preference  to  American  material ;  and 
all  labor  thereon  shall  be  performed  within  the  jurisdiction  of  the 
United  States."  Held  that  the  requirement  of  the  above  statute  is 
not  an  absolute  one,  but  leaves  a  discretion  in  the  Secretary  of  War  to 
authorize  the  procuring  elsewhere  of  supplies  where  the  conditions 
are  such  as  to  justify  it,  and  that  where  a  suboffice  of  the  officer  in 
charge  of  certain  work  is  located  in  Canada  and  it  is  more  convenient 
to  purchase  in  Canada  minor  and  emergency  articles,  held  that  such 
purchases  might  be  made.     C.  24264,  Dec.  29,  1908. 

XXIII  H.  The  fortification  appropriation  act  of  March  4,  1911 
(36  Stat.  1343),  provided  that  ''all  the  material  purchased  under  the 
provisions  of  this  act  shall  be  of  American  manufacture,  except  in  cases 
when,  in  the  judgment  of  the  Secretary  of  War,  it  is  to  the  manifest 
interest  of  the  United  States  to  make  purchases  in  limited  quantities 
abroad,  which  material  shall  be  admitted  free  of  duty."  Held  that  in 
the  exercise  of  the  discretion  vested  by  the  above  statute  the  Secretary 
could  issue  a  general  authorization  under  proper  conditions  as  to  the 
admission  of  material.     C.  29307,  Dec.  I4, 1911. 

XXIV.  A  dredging  contract  provided  that  the  approximate  (quan- 
tities specified  in  the  contract  were  subject  to  a  possible  variation  of 
10  per  cent  above  or  below  the  figures  stated.  After  more  than 
three-fourths  of  the  work  was  completed  the  contractor  requested  to 
be  advised  as  to  the  approximate  quantity  of  material  to  be  removed 
under  the  contract.  He  was  notified  that  the  approximate  quantities 
specified  in  the  contract  would  be  reduced  10  per  cent.  This  decision 
was  made  in  view  of  the  state  of  the  appropriation,  but  as  additional 
funds  subsequently  became  available  the  United  States  sought  to 
change  its  decision  and  require  the  maximum  quantity  of  material  to 
be  removed.  Held  that  the  United  States  having  elected  to  require 
the  minimum  quantity  only  was  bound  by  such  election  and  could  not 
subsequently  elect  to  require  the  maximum  dredging.  C.  21308, 
Mar.  28,  1907.  So  also,  where  a  contract  for  supplying  dark- blue 
cloth  was  subject  to  an  increase  of  20  to  50  per  cent  if  desired  by  the 
United  States,  and  the  United  States  notified  the  contractor  that  the 
quantity  was  increased  20  per  cent,  but  did  not  reserve  the  right  to 
make  a  further  increase,  and  the  contractor  in  response  to  his  request 
was  advised  that  no  further  increase  was  contemplated.  Held  that 
the  United  States  having  exercised  its  option  to  increase  the  quantity 
by  20  per  cent  could  not  again  increase  the  quantity,  as  the  contract 
did  not  contemplate  the  exercise  of  more  than  one  option.  C.  24676 j 
Mar.  22,  1909. 

Where  a  contract  for  the  delivery  of  oats  during  the  fiscal  year  pro- 
vided that  it  might  "  at  the  option  of  the  United  States  be  increased 
not  exceeding  20  per  cent  or  diminished  not  exceeding  20  per  cent 
thereof  at  any  time  during  the  continuance  of  the  contract,"  and  after 
the  delivery  of  the  quantity  originally  bid  for  the  chief  quartermaster 
of  the  department  paid  the  contractor  in  full,  including  retained  per- 
centages, marking  the  final  voucher  "  contract  completed,"  and  there- 
after, 18  days  before  the  expiration  of  the  fiscal  year  the  contractor 


376  CONTEACTS  XXIV. 

was  called  on  for  the  additional  20  per  cent,  lield  ^hat  this  action  of  the 
chief  quartermaster  in  so  paying  the  contractor  and  marking  the  final 
voucher  did  not  constitute  a  technical  "release"  from  the  contract, 
for  there  would  be  no  consideration  for  such  a  release,  and  without 
a  consideration  no  a^ent  of  the  United  States  can  surrender  the  con- 
tract rights.  But  if  m  consequence  of  the  action  of  the  chief  quarter- 
master the  contractor  failed  to  lay  in  supplies  to  meet  the  calls  of  the 
United  States  and  would  now  have  to  procure  the  supplies  at  an 
advanced  figure,  or  has  been  otherwise  placed  at  a  disadvantage 
thereby,  the  United  States  would  be  estopped  from  calling  on  him  for 
the  additional  20  per  cent.     C.  12974,  July  IS,  1902. 

A  contract  for  woolen  blankets  provided  that  the  number  to  be 
supplied  might  be  increased  50  per  cent  if  desired  by  the  United 
States,  and  also  provided  for  partial  payments  based  on  supplies  de- 
livered and  accepted,  "reservmg  10  per  cent  from  each  payment  until 
final  settlement,  on  completion  of  the  contract  or  otherwise."  The 
United  States  gave  notice  that  a  50  per  cent  increase  was  required. 
Thereupon  the  contractor  demandea  that  he  be  paid  the  retained 
percentages,  claiming  that  the  50  per  cent  increase  constituted  a  sep- 
arate contract.  Held  that  the  words  ''or  otherwise"  refer  to  a  final 
settlement  based  on  a  termination  of  the  contract  otherwise  than  by 
completion  of  deliveries  thereunder  and  do  not  authorize  the  United 
States  to  pay  the  retained  percentages  prior  to  a  final  settlement. 
Held,  further,  that  the  contract  would  not  be  finally  settled  until  the 
50  per  cent  increase  had  been  supplied. ^     C.  22^20,  Nov.  27,  1907. 

A  contract  for  the  delivery  of  oats  provided  that  the  Government 
should  have  the  option  to  increase  or  decrease  the  quantity  at  any 
time  during  the  continuance  of  the  contract.  The  Government  called 
for  an  additional  quantity  of  oats,  not  for  the  purpose  of  supplying  the 
current  needs  of  the  Government,  but  "as  a  distinct  saving  to  the 
Government,"  which  saving  would  result  from  the  fact  that  the  prices 
were  lower  than  could  be  obtained  at  a  subsequent  stage  of  the  same 
contract.  Held  that  the  order  for  additional  oats  was  lawful,  but  by 
the  authority  of  the  opinion  of  the  Attorney  General  in  28  Op.,  121, 
the  Secretary  of  War  m  the  exercise  of  his  discretion  could  properly 
direct  that  the  order  for  the  additional  quantity  be  canceled  although 
such  cancellation  would  cause  financial  loss  to  the  Government. 
O.  29107,  Nov.  1,  1911.^ 

A  contract  for  supplying  dark  blue  cloth  expired  February  21,  1909. 
The  contract  provided  that  the  amount  called  for  would  be  subject  to 
an  increase  of  from  20  to  50  per  cent  in  quantity  if  desired  by  the 
United  States  "during  the  continuance  of  this  contract."  Held  that 
the  contractor  could  not  be  required  subsequent  to  February  21,  1909, 
to  furnish  an  increased  quantity.  O.  24676,  Mar.  22,  1909;  29107, 
Oct.  12,  1911. 

A  contract  provided  that  "the  quantity  of  each  article  specified 
shall  be  subject  to  not  to  exceed  50  per  cent  increase  if  desired  by  the 
United  States  during  the  continuance  of  this  contract,"  but  no  provi- 
sion was  made  as  to  the  time  within  which  the  additional  quantity  if 
ordered  should  be  delivered.  Held,  that  the  contractor  would  have  a 
reasonable  time  within  which  to  make  the  deliveries.  C.  25825,  Nov. 
22,  1909. 

^See  XII  Comp.  Dec,  409. 


CONTRACTS  XXV.  Sl1 

A  contract  for  the  delivery  of  a  quantity  of  oats  provided  that 
deh^^eries  should  commence  in  October,  and  'Hhat  the  quantity  herein 
specified  may  be  increased  or  decreased  at  the  option  of  the  United 
States,  not  to  exceed  20  per  cent  thereof,  at  any  time  or  times, 
during  the  continuance  of  the  contract,"  and  further  provided  for  a 
dehver}^'  of  a  certain  auantity  each  month.  The  contractor  con- 
tended that  each  monthly  delivery  should  be  treated  as  a  separate 
contract  and  that  the  20  per  cent  reduction  should  be  applied  to  each 
monthly  delivery.  Held,  that  there  is  nothing  in  the  language  of  the 
contract  to  warrant  the  construction  that  the  20  per  cent  reduction 
should  be  applied  to  each  monthly  delivery  separately  but  all  might 
be  made  at  one  time.     C.  27506,  Nov.  22,  1910. 

XXV.  When  the  United  States  comes  into  the  occupancy  of  prem- 
ises under  a  contract  either  express  or  implied  to  pay  rent,  tnere  arises 
an  implied  obhgation  on  the  part  of  the  United  States  to  so  use  the 
premises  as  not  to  injure  it  unnecessarily.  Such  an  obligation  results 
from  the  relation  of  landlord  and  tenant.*  So,  where  lands  are  leased 
for  maneuver  purposes;  held,  that  the  United  States  would  be  liable 
for  damage  to  buildings,  fences,  or  crops  in  consequence  of  such  use 
and  occupation,  and  the  officer  charged  with  executing  the  contract 
could  hquidate  such  damages.  C.  14971,  July  23,  1903.  So,  where 
a  house  was  occupied  under  circumstances  constituting  an  implied 
lease ;  lield,  the  United  States  would  be  liable  for  damage  to  the  house 
and  furniture  during  such  occupancy.  C.  14617,  May  12,  1903.  So, 
where  a  berth  and  landing  place  for  the  use  of  boats  of  the  Quarter- 
master's Department  was  leased,  and  a  United  States  steamer  colHded 
with  a  portion  of  the  wharf  adjacent  to  the  berth  leased  by  the  Gov- 
ernment, held  that  the  United  States  would  be  liable  for  the  resulting 
damage  under  an  imphed  covenant  to  use  the  premises  in  a  tenant- 
able  and  proper  manner.     C.  144^5,  Apr.  11,  1903. 

XXVI.  Where  a  contract  provided  for  installing  a  wireless  tele- 
graph system  in  Alaska  between  two  points,  one  of  which  was  de- 
scrioed  as  ^^ accessible  to  boats  propelled  by  steam  or  other  power," 
and  it  was  subsequently  discovered  tnat  it  was  impossible  for  a  steamer 
to  approach  closer  than  75  miles  of  the  point  in  question,  held  that  the 
representation  as  to  reaching  the  point  by  boats  was  one  which  was 
understood  to  be  pecuHarly  within  the  knowledge  of  the  United 
States  authorities,  and  should  be  treated  as  a  warranty.  C.  12705, 
Apr.  3,  1903. 

XXVII.  A  contract  was  entered  into  by  the  Government  for  the 
construction  of  certain  buildings  at  Fort  St.  PhUip,  La.,  the  contract 
providing  that  the  contractor  should  be  responsible  for  damage  by 
fire.  In  order  to  protect  himself  the  contractor  took  out  fire  insur- 
ance on  the  buildings.  The  time  limit  for  the  work  expired  on 
December  15,  1907,  on  which  date  the  Government  took  possession, 
according  to  the  terms  of  the  contract,  for  the  purpose  of  completing 
it  and  charging  the  excess  cost  to  the  contractor.  Held,  that  as  the 
iQSurance  was  intended  to  protect  the  contractor  and  its  surety  from 
the  fiability  imposed  by  the  contract,  and  as  the  contractor  was 
chargeable  with  the  excess  of  the  cost  of  the  work,  the  Government 
could  continue  the  insurance,  charging  the  expense  of  the  same  to  the 
contractor  as  a  part  of  the  cost  of  the  work.     C.  21735,  Feb.  18,  1908. 

"■  U.  S.  V.  Bostwick,  94  U.  S.,  65;  Mann.  v.  U.  S.,  3  Ct.  Cls.,  411;  II  Comp.  Dec, 
407.;  9  id.,  488. 


378  CONTRACTS   XXVIII. 

XXVIII.  Where,  at  the  end  of  the  10  days  specified  in  his  guaranty, 
the  accepted  bidder  had  failed  to  enter  into  the  contract,  held  that  the 
Hability  of  the  guarantors  had  attached,  and  that,  the  pubhc  interests 
not  being  prejudiced,  the  contract  might  legally  be  entered  into  with 
one  of  the  guarantors,  as  an  open-market  transaction  in  which  he 
takes  the  risk  on  his  own  account  at  the  rate  proposed  in  the  bid. 
P.  32,  188,  May  4,  1889. 

XXIX.  In  the  absence  of  a  provision  in  the  contract  or  the  accom- 
panying bond  requiring  the  Government  to  call  upon  the  surety  to 
carry  out  the  contract  in  the  case  of  a  default  of  the  contractor,  lield 
the  Government  would  be  under  no  obhgation  to  give  the  surety  such 
an  opportunity.     C.  24639,  Mar.  27,  1909. 

XXX.  Where  the  lowest  bidder  was  a  partnership,  and  before  the 
contract  based  on  the  bid  could  be  signed,  the  partnership  was  dis- 
solved, Jield,  that  there  was  no  legal  objection  to  allowing  one  of  the 
members  of  the  partnership  to  take  up  the  bid  and  enter  into  a  con- 
tract. This  would  be  equivalent  to  rejecting  all  bids  and  then  maldng 
a  contract  without  further  advertisement  with  the  member  of  the 
partnership.     C.  12827,  Sept.  10,  1902. 

XXXI.  Payments  due  on  a  contract  with  the  Government,  where 
the  contractors  are  partners,  may  legally  be  made  to  any  member  of 
the  firm,  notwithstanding  one  of  them  may  have  filed  a  protest  and 
notice  against  payment  to  one  of  the  partners.^  C.  3210,  May  20, 
1897. 

XXXII.  Held,  that  the  Army  Regulations  are  not  strictly  appli- 
cable to  contracts  of  the  United  States  Soldiers'  Home,  as  the  home  is 
under  the  control  of  a  board  of  commissioners  who  are  expressly 
empowered  to  establish  regulations  for  the  general  and  internal 
direction  of  the  home.  However,  as  the  Army  Regulations  provide 
comprehensive  instructions  for  the  letting  of  public  contracts  based 
on  law  and  experience,  it  is  believed  that  they  may  wisely  be  followed, 
except  where  the  board  of  commissioners  for  the  home  shall  have 
prescribed  different  regulations.     C.  19921,  June  16,  1906. 

XXXIII.  A  proposed  contract,  to  be  signed  by  both  the  contracting 
officer  and  the  employee,  provided  that  the  employee  would  not  leave 
the  service  of  the  Engineer  Department  unless  by  the  consent  of  the 
local  representative  of  the  Engineer  Department  without  giving  50 
days'  notice  of  his  intention  to  do  so,  and  that  in  case  of  his  violation 
of  this  provision  the  employee  would  forfeit  to  the  United  States  all 
pay  due  him  at  the  time  of  quitting  the  service.  Heldj  that  the  pro- 
posed contract  was  not  unreasonable  or  oppressive,  and  there  was  no 
legal  objection  to  it.     C.  23026,  Apr.  3,  1908. 

XXXiV.  The  Government  had  a  contract  with  a  company  to  fur- 
nish electricity,  the  contract  giving  the  Government  an  option  to 
renew  the  contract  from  year  to  year  for  10  years.  Toward  the  close 
of  the  first  fiscal  year  the  Government  advertised  for  bids  for  fur- 
nishing electricity  for  the  second  fiscal  year.  Held,  that  the  act  of 
the  Government  in  inviting  bids  did  not  constitute  an  abandonment 
on  its  part  of  its  option  to  renew  the  contract,  but  should  be  regarded 
merely  as  a  means  used  by  it  of  ascertaining  whether  or  not  it  would 
be  to  the  interest  of  the  United  States  to  exercise  the  option.  C. 
28514,  June  10,  1911. 

.*  Noyes  v.  New  Haven,  New  London,  and  Stonington  R.  R.,  30  Conn.,  14,  15; 
Lindley  on  Partnerships,  218;  American  and  Eng.  Encyclopaedia  of  Law,  2d  ed.,  vol. 
22,160;  30Cyc.,482. 


CONTRACTS   XXXV.  379 

XXXV.  A  contract  for  printing  provided  that  the  contractor  should 
furnish  the  hibor  and  material  ''to  do  promptly  all  printing  and  ruling, 
and  furnish  the  paper  and  cardboard  for  the  same  that  may  be  re- 
quired at  Headquarters  Atlantic  Division  and  Department  of  the  East 
during  the  fiscal  year."  Held,  that  printing  for  a  constructing  quar- 
termaster in  the  department  who  was  carrying  on  the  work  of  con- 
struction under  the  authority  of  the  Quartermaster  General  is  not 
included  in  the  contract.     C.  23212,  July  7,  1908. 

XXXVI.  There  is  no  statute  that  requires  contracts  under  the  War 
Department  to  be  under  seal,  and  therefore  a  corporation  contracting 
witn  the  War  Department  need  not  attach  its  corporate  seal.  V. 
2878,  Jan.  19,  1897;  15675,  Dec.  23,  1903. 

XXXVII.  A  contract  which  expressly  provided  that  ''it  shall  be 
subject  to  approval  of  the  Chief  of  Engineers"  was  duly  signed  by  the 
contracting  parties,  but  before  approval  the  contractor  failed  and  its 
business  was  placed  in  the  hands  of  a  receiver;  held,  that  the  Chief  of 
Engineers  legally  could  refuse  to  approve  the  contract  and  then  re- 
advertise  for  proposals  or  could  approve  the  contract  and  permit  the 
receiver  to  carry  it  out.     C.  7508,  Jan.  6,  1900. 

XXXVIII.  miere  bids  were  requested  for  a  certain  tjrpe  of  pickaxe 
wliich  the  Quartermaster  General  considered  obsolete  and  the  con- 
tract was  subject  to  the  approval  of  the  Quartermaster  General;  held, 
that  the  Quartermaster  General  could  properly  withhold  his  approval 
of  the  contract  and  call  for  bids  for  a  more  suitable  kind  of  pickaxe. 
a  28136,  Apr.  14,  1911. 

XXXIX.  A  contract  for  dredging  provided  that  "should  the  time 
for  the  completion  of  the  contract  be  extended,  all  expenses  for  inspec- 
tion and  superintendence  during  the  period  of  the  extension,  the 
same  to  be  deterixdned  by  the  engineer  officer  in  charge,  shall  be 
deducted  from  payments  due  or  to  become  due  to  the  contractor: 
Provided,  however.  That  if  the  party  of  the  first  part  shall,  in  the 
exercise  of  his  discretion,  because  of  freshets,  ice,  or  other  force  or 
violence  of  the  elements,  allow  the  contractor  additional  time,  in 
writing,  as  provided  for  in  the  form  of  contract,  there  shall  be  no 
deduction  for  the  expenses  for  inspection  and  superintendence  for 
such  additional  time  so  allowed,"  and  further  provided  that  if  the 
contractor  should  ' '  by  freshets,  ice,  or  other  force  or  violence  of  the 
elements,  and  by  no  fault  of  his  own,  be  prevented  either  from  com- 
mencing or  completing  the  work,  or  delivering  the  materials  at  the 
time  agreed  upon  in  this  contract,  such  additional  time  may,  in  writ- 
ing, be  allowed  him  from  such  commencement  or  completion,  as,  in 
the  judgment  of  the  party  of  the  first  part,  or  his  successor,  shall  be 
just  and  reasonable,"  held,  that  it  would  seem  that  the  loss  of  a 
dredge  by  fire  not  resulting  from  lightning  or  some  other  superhuman 
agency  would  not  be  a  loss  by  "force  or  violence*  of  the  elements," 
held  further,  that  under  the  rule  that  general  words  following  specific 
instances  are  to  be  understood  as  covering  cases  similar  to  those 
specified,  the  words  "force  or  violence  of  the  elements"  should  be 
construed  to  mean  a  force  or  violence  of  the  kind  specified  in  the  pre- 
ceding words — that  is,  such  a  force  or  violence  as  would  interrupt  the 
work,  and  held  further,  that  even  if  it  should  appear  the  fire  occurred 
without  fault  or  negligence  on  the  contractor's  part,  still  no  reason 
appeared  why  the  contractor  could  not  have  bought  or  hired  another 
dredge  to  replace  the  one  destroyed  by  fire,  and  in  the  absence  of  such 
a  showing  it  can  not  be  said  that  the  failure  of  the  contractor  to  com- 


380  CONTRACTS  XL. 

plete  the  work  was  ''by  no  fault  of  his  own."^  C.  12598,  May  IS, 
1908. 

XL.  Where  a  contract  called  for  the  removal  of  "silt,  sand,  clay, 
and  gravel,"  and  many  bowlders  were  found  which  the  contractor 
was  not  required  under  his  contract  to  remove,  but  the  contractor, 
without  contract,  order,  or  request  from  the  proper  officer  removed 
such  bowlders.  Held,  that  the  extra  work  involved  in  removing  such 
bowlders  should  be  considered  as  having  been  voluntarily  rendered  by 
the  contractor,  and  there  could  be  no  recovery  against  the  Govern- 
ment for  such  work.  P.  63,  180,  Jan.  10,  1894;  0.  23646,  Nov.  3, 
1910.  So  held,  also,  where,  although  the  work  was  not  required  under 
the  terms  of  the  contract,  it  was  done  for  the  protection  of  the  con- 
tractor, and  without  orders  from  the  officer  in  charge.^  C.  23546, 
Nov.  3,1910. 

XLI.  Prospective  bidders  for  a  contract  to  install  an  electric  light- 
ing system  in  the  Philippine  Islands  were  notified  ''that  proposals 
will  be  considered  with  free  entry  of  all  material  to  be  used  therein, 
with  the  proviso  that  if  duty  is  collectible  the  contract  price  will  be 
increased  to  cover  the  amount  of  duty  collected,"  which  provision 
was  made  a  part  of  the  contract.  The  contractor  was  required  to 
pay  duty  on  some  of  the  niaterial  used  in  carrying  out  the  contract. 
After  the  contract  had  been  entirely  completed  the  contractor  re- 
quested an  additional  payment  to  compensate  him  for  duties  paid 
on  material  used  in  the  contract.  Held,  there  was  no  legal  objection 
to  making  such  additional  pa3mient.3     C.  24076,  Dec.  30,  1908. 

XIII.  A  contract  provided  for  the  delivery  of  hay,  oats,  etc.,  "at 
the  various  stables,  officers'  quarters,  and  other  places  in  the  city  of 
Washington  and  within  one  mile  beyond  the  limits  of  said  city,  Sol- 
diers' Home,  National  Cemetery,  and  Battle  Ground  National  Ceme- 
tery, Brightwood,  D.  C,"  with  a  further  provision  for  reducing  the 
quantity  in  case  of  withdrawal  of  troops,  Tield,  that  the  contract 
clearly  provided  for  the  supply  of  such  forage  as  may  be  required  to 
meet  the  needs  of  the  service  in  the  city  of  Wasliington  and  immediate 
vicinity,  and  that  the  contract  could  not  be  construed  so  as  to  permit 
the  Quartermaster's  Department  to  require  the  contractor  to  furnish 
forage  at  Washington  beyond  the  needs  of  the  service  at  that  point, 
the  forage  to  be  subsequently  shipjjed  by  the  Government  to  Front 
Royal,  Va.,  for  the  needs  of  the  service  at  the  latter  place.  C.  29239, 
Nov.  14,  1911. 

XIIII.  The  expression  in  a  contract  that  the  contractor  agrees 

"for heirs,  executors,  and  administrators"  is  not  essential. 

The  personal  representatives  of  a  deceased  contractor  are  entitled  to 
carry  out  his  contracts,  and  the  estate,  both  personal  and  real,  of 

^  In  XVI  Comp,  Dec. ,-618,  in  construing  the  words  "by  freshets,  ice,  or  other  force  or 
violence  of  the  elements,  and  by  no  fault  on  his  part,"  it  was  said,  "The  only  thing  for 
which  additional  time  may  be  allowed  under  the  terms  of  the  contract  are  freshets, 
ice,  or  other  force  or  violence  of  the  elements,  and  then  only  in  case  the  delay  was 
caused  by  no  fault  on  the  part  of  the  contractor." 

2  See  Kingsbury  t;.  U.  S.,  1  Ct.  Cls.,  13.  Murphy  i;. U.S.,  13  id.,  372.  Utica,  Ithaca, 
etc.,  Ry.  V.  U.  S.,  22  id.,  265.  In  Barlow  v.  U.  S.,  35  Ct.  Cls.,  514,  it  was  held  that 
additional  work  or  better  material  than  that  required  by  the  contract,  ordered  by  a 
subordinate  without  authority  to  do  so,  must  be  regarded  as  voluntary  service,  and  no 
contract  for  it  can  be  implied. 

2  This  opinion  was  concurred  in  by  the  Comptroller  under  date  of  Jan.  21,  1909. 
Decision  not  published. 


CONTRACTS  XLIV.  381 

such  contractor  is  liable  for  his  debts  and  contracts  independently  of 
the  provisions  of  the  contracts.     C.  2878,  Jan.  19,  1897. 

XLIV.  Certain  contracts  for  forage  provided  that  the  oats  and  hay 
furnished  should  ''be  of  the  best  merchantable  quality  and  of  the 
highest  recognized  commercial  grade  of  the  locality."  tieldj  that  the 
language  quoted  simply  furnished  a  standard  bv  which  the  receiving 
officer  was  to  judge  the  forage  offered  under  the  contract;  that  the 
term  ''localitv  had  reference  to  the  towns  and  country  in  the  vicinity 
of  the  post  where  the  contractor  could  reasonably  be  expected  to  pur- 
chase the  forage.  State  lines  would  have  nothing  to  do  with  the  mat- 
ter, and  no  particular  number  of  miles  could  be  given  as  the  distance 
to  which  the  locality  would  extend.  It  has  reference  to  the  sources 
from  which  the  forage  could  reasonably  be  obtained:  that  is,  where 
the  purchasing  officer,  the  local  quartermaster,  would  probably,  in 
the  exercise  of  good  judgment,  purchase  in  open  market.  C.  1993, 
Jan.  22,  1896;  2673,  Oct.  12,  1896. 

Xiy.  The  specifications  of  a  contract  for  dredging  stated  that  the 
material  ranged  from  soft  mud  to  clay  and  sand,  out  stated  that  the 
information  as  to  character  of  material  was  in  no  wise  guaranteed, 
that  bidders  were  expected  to  satisfy  themselves  in  all  respects  as 
to  the  work  to  be  done,  and  that  all  material  encountered  must  be 
removed  by  the  contractor  at  the  contract  price  ''  except  solid  ledge." 
The  contractor  encountered  material  which  it  was  admitted  by  him 
was  not  ''solid  ledge,"  but  he  contended  that  it  was  such  material  as 
was  not  contemplated  by  the  contractor,  that  in  respect  to  the  diffi- 
culty of  removal,  it  approximated  in  character  "solid  ledge"  and  was 
not  such  material  as  would  reasonably  come  under  a  contract  for 
"dredging."  Held,  that  the  removal  of  this  material  came  within 
the  terms  of  the  contract.  C.  13525,  Oct.  23,  1902.  A  contract  for 
grading  and  sewer  and  drain  trenches  was  let  for  a  certain  sum  with 
"an  additional  allowance  per  cubic  yard  for  rock  excavation."  The 
specifications  which  were  made  part  of  the  contract  provided  that 
''the  nature  of  the  material  to  be  excavated  is  not  known,  but  bidders 
should  ascertain  this  for  themselves,  if  possible,  before  submitting 
bids.  If  rock  is  encountered  in  the  excavation  it  will  be  measured 
and  paid  for  as  rock  excavation,  provided  that  no  bowlder  is  to  be 
considered  as  rock  excavation  unless  it  equals  or  exceeds  1  cubic 
yard  in  volume.  *  *  *  All  work  to  be  paid  for  by  the  cubic  yard 
as  earth  or  rock  excavation,  both  being  measured  in  place  before 
being  distributed.  No  other  classification  of  material  will  be  con- 
sidered, and  only  actual  ledge  rock  or  bowlder  to  be  considered  as 
rock  excavation."  The  contractor  made  his  bids  on  the  best  infor- 
mation he  could  obtain  from  the  contracting  officer  and  others,  but 
unexpectedly  encountered  more  rock  than  expected,  a  large  quantity 
being  "  in  the  form  of  bowlders,  frequently  large  and  in  great  masses, 
but  not  of  the  size  to  be  paid  for  as  rock  under  the  terms  of  the  specifi- 
cations; also,  an  enormous  quantity  of  hardpan,  but  not  more  than 
10  to  15  per  cent  of  the  amount  of  soft  and  easily  moved  earth"  that 
he  assumed  in  his  estimate,  and  the  material  bemg  further  described 
as  a  kind  of  "concrete  of  cement  and  fine  stones."  Held,  there  was  no 
room  to  say  the  contract  contemplated  only  ordinary  earth  and  rock 
excavation,  that  the  excavation  was  included  in  the  terms  of  the 
original  contract,  and  a  supplemental  contract  could  not  legally  be 
made  to  pay  higher  prices  than  set  out  therein.  C.  17234,  Dec.  16, 
1904'    The  specifications  on  which  bids  were  invited,  and  which 


382  CONTRACTS   XLV. 

became  part  of  the  dredging  contract,  defined  the  material  to  be  re- 
moved as  ''sand,  gravel,  stones,  and  bowlders,"  and  stated  that  ''the 
indications  given  as  to  the  character  of  material  to  be  excavated  shall 
not  be  accepted  as  conclusive,  but  bidders  are  expected  to  examine 
the  several  localities  and  determine  this  question  for  themselves. 
It  will  be  assumed  that  proposals  are  based  on  a  thorough  under- 
standing of  the  character  of  the  work  to  be  done;  that  the  price  bid 
will  cover  all  contingencies  or  risks  attaching  to  it,  and  that  no  con- 
cession or  allowance  will  be  made  for  any  lack  of  information  on  the 
part  of  the  contractor."  The  contractor  in  prosecuting  the  work 
actually  encountered  "a  very  heavy  stratum  of  bowlders  embedded 
in  a  compacted  sand,  very  tenacious  and  very  difficult  to  dredge, 
the  upper  slope  of  the  shoal,  beyond  the  limits  of  the  trial  dredging, 
consisting  of  very  firmly  packed  bowlders  and  proving  to  be  much 
harder  than  originally  anticipated."  Held,  there  was  no  room  to  say 
the  contract  contemplated  only  ordinary  sand,  gravel,  stones,  and 
bowlders,  that  the  dredging  was  included  in  the  terms  of  the  original 
contract,  and  a  supplemental  contract  could  not  be  made  to  pay 
higher  prices.  C.  20875,  Jan.  7,  1907.  A  contract  for  the  construc- 
tion of  earthwork  along  the  Illinois  &  Mississippi  Canal  provided  that 
"the  material  throughout  the  canal  trunk,  as  far  as  Iniown,  is  shown 
by  borings  *  *  *  but  bidders  must  satisfy  themselves  as  to  the 
nature  of  the  material  to  be  encountered,"  and  that  "the  prices  bid 
for  earthwork  shall  include  all  work  of  every  character  necessary  to 
deliver  to  the  United  States  the  complete  and  finished  construction." 
The  contractor  reported  that  "the  material  encountered  and  which 
could  not  be  foreseen  when  the  original  specifications  were  prepared 
is  a  very  fine  sand  or  quicksand  in  pockets,  alternating  with  soft 
mud  or  vegetable  matter  that  flowed,  and  makes  it  impracticable  to 
secure  the  slopes  and  grades  specified."  Held,  that  the  contractor 
was  bound  to  construct  the  earthwork  in  conformity  with  the  specifi- 
cations, without  regard  to  the  character  of  the  material  encountered, 
that  a  supplemental  contract  modifying  the  original  contract  in 
certain  particulars,  and  providing  that  the  contractor  be  paid  at  con- 
tract rates  for  about  100,000  cubic  yards  of  material  for  which  pay- 
ment could  not  be  made  under  the  original  contract  but  which  was 
necessary  for  the  construction  of  the  canal  and  would  have  to  be 
performed  by  the  contractor  himself  would  not  be  for  the  benefit  of 
the  United  States  and  therefore  could  not  legally  be  made.^  C.  5082, 
Oct.  10,  1898.  Where  a  contract  expressly  stated  that  "the  river 
bed  at  No.  2  consists  of  gravel  throughout."  Held,  that  such  lan- 
guage did  not  constitute  a  guaranty  by  the  United  States  that  the 
bed  shall  be  gravel  throughout,  in  view  of  other  provisions  in  the 
contract  that  bidders  are  expected  "to  visit  the  site  of  the  lock  and 
dam  and  ascertain  the  nature  and  location  of  quarries,"  etc.,  and  that 
the  encountering  of  rock  at  sites  other  than  the  one  under  consider- 
ation "may  make  a  difference  in  the  amount  of  excavation  necessary, 
and  a  variation  of  the  amount  of  material  required  in  the  construction 
of  the  lock  walls;  but,  as  all  prices  are  based  on  units  of  materials 

'  In  Simpson  v.  U.  S.,  172  U.  S.,  372,  it  was  held  that  the  discovery  of  unforeseen 
and  unexpected  difficulties  in  the  execution  of  a  contract,  such  as  the  existence  of 
quicksand  on  the  site  selected  for  a  structure,  is  no  ground  upon  whicli  to  reform  the 
contract  as  ha\ang  been  entered  into  under  mutual  mistake.  The  contractor  should 
assume  the  risk  of  construction. 


CONTRACTS   XLVI.  383 

removed  and  built  in  place,  these  differences  in  the  foundations  at 
the  different  sites  can  only  affect  the  cost  of  the  lock  to  the  United 
States,  and  not  to  the  contractor."  *     C.  521^,  Nov.  6,  1898. 

XLVI.  Where  the  outlet  for  the  post  sewer,  Fort  Leavenworth, 
was  located  above  the  point  of  intake  of  the  water  company  that  sup- 
plied the  post  with  water  and  it  was  necessary  to  extend  the  sewer  to 
a  point  below  the  intake,  in  order  to  preserve  the  purity  of  the  water 
supply,  held,  that  as  the  proposed  extension  of  the  sewer  is  necessary 
to  protect  the  post  water  supply,  and  as  the  entire  sewer  will  be  the 
property  of  the  Government,  the  Secretary  of  War  may  properly 
autiiorize  its  construction  as  a  Government  undertaking,  ana  that  as 
an  incident  of  such  undertaking  he  may  legally  authorize  an  agree- 
ment with  the  water  company  that  in  consideration  of  such  construc- 
tion by  the  Government  and  of  the  benefits  resulting  therefrom  to 
the  water  company  the  price  of  water  to  the  Government  shall  be  re- 
duced by  furnishing  water  at  one-half  the  contract  price  until  the 
saving  to  the  Government  shaU  amount  to  the  cost  of  extension,  C. 
26930,  Dec.  8,  1910. 

XLVII.  The  circular  of  instructions  to  bidders  for  certain  fire 
apparatus  stated  that  as  early  delivery  was  essential,  bidders  ''will 
state  in  their  proposals  the  number  of  days  from  date  of  award  that 
delivery  will  be  made,"  and  the  accepted  bidder  stated  that  he  would 
begin  work  ''at  once  after  receipt  of  award,"  and  that  the  several 
items  would  be  delivered  within  a  certain  number  of  days  "from 
acceptance  of  bid."  The  letter  awarding  the  bid  was  sent  to  the 
lowest  bidder  January  5,  1910,  and  to  allow  time  for  the  receipt  of  the 
same  the  contract  was  dated  January  10,  but  was  not  approved  until 
February  A?  In  the  contract  it  was  stated  that  the  several  items 
would  be  dehvered  within  a  certain  number  of  days  "from  the  date  of 
contract."  The  contractor  contended  that  the  time  for  delivery 
should  be  calculated  from  the  date  of  receipt  by  him  of  an  approved 
copy  of  the  contract.  Held  that  the  supplies  should  be  delivered 
within  the  specified  number  of  days  after  January  10,  the  date  of  the 
contract.     C.  26752,  May  23, 1910. 

XLVIII.  A  contract  was  entered  into  for  furnishing  the  Govern- 
ment 10,000  barrels  of  cement,  with  the  option  on  the  part  of  the 
engineer  officer  in  charge  of  increasing  or  decreasing  the  amount  by 
50  per  cent,  which  would  make  the  minimum  amount  to  be  supplied 
5,000  barrels,  and,  as  the  cement  was  not  passing  satisfactory  tests, 

1  See  Atlantic  Dredging  Co.  v.  U.  S.,  35  Ct.  Cls.,  463. 

2  In  Cathell  v.  U.  S.,  46  Ct.  Cls.  368,  the  effect  of  requiring  a  contract  to  be  approved 
by  a  superior  officer  was  stated  as  follows :  "  It  has  been  decided  repeatedly  by  this  court 
that  a  contract  providing  for  the  approval  of  a  superior  officer  is  not  a  valid  subsisting 
agreement  until  such  approval  is  made  according  to  the  contract.  (Snare  &  Triest  Co. 
V.  United  States,  43  Ct.  Cls.,  367;  Ittnerv.  United  States,  43  Ct.  Cls.,  336;  Little  Falls 
Knitting  Mill  Co.  v.  United  States,  44  Ct.  Cls.,  1.)  The  Supreme  Court  in  Camden 
Iron  Works  v.  United  States  (181  U.  S.,  453),  and  Monroe  v.  United  States  (184  U.  S., 
524),  affirmed  this  doctrine.  Neither  the  contractor  nor  the  defendants  incurred 
liabilities  under  the  contract  until  it  was  approved.  The  defendants  were  in  no  posi- 
tion to  assert  rights  under  a  contract  which  they  neglected  to  execute.  The  contract 
having  expressly  held  in  abeyance  the  date  of  its  validity  and  lodged  in  a  supervising 
official  the  final  word  of  assent  or  dissent,  made  the  approval  thereof  a  condition  pre- 
cedent to  its  binding  character.  The  defendants  having  failed  to  perform  this  condi- 
tion until  a  time  subsequent  to  the  date  fixed  in  the  agreement  for  the  performance 
thereof,  waived  this  clause  of  the  contract  and  imposed  upon  the  contractors  an  obliga- 
tion to  complete  the  work  within  a  reasonable  time.  The  record  discloses  that  they 
did  complete  the  work  within  a  reasonable  time.'* 


384  CONTRACTS   XLIX. 

the  contractor,  after  5,000  barrels  had  been  ordered  and  dehvered, 
was  notified  ''that  no  further  cement  would  be  ordered  under  the 
contract."  All  the  cement  already  ordered  and  delivered  was 
rejected,  and  purchases  elsewhere  were  made  to  the  extent  of  10,500 
barrels  at  an  excess  of  cost  over  the  contract  price.  Held,  that  the 
action  of  the  Government  amounted  to  an  election  to  order  the 
minimum  quantity  of  5,000  barrels  only  and  that  by  such  action  the 
contract  was  terminated.  Therefore  the  Government  was  entitled  to 
recover  from  the  contractor  only  the  loss  on  5,000  barrels.  G.  26455, 
May  9,  1910. 

XLIX.  Paragraph  525,  Army  Regulations  (535  of  1910),  which 
provides  that  ''information  in  regard  to  supplies  or  services  for  which 
proposals  have  been  invited  wiU  be  furnished,  on  appHcation,  to  all 
persons  desiring  it  but  no  person  belonging  to  or  employed  in  the 
military  service  will  render  assistance  in  the  preparation  of  propos- 
als." Held,  that  this  regulation  is  so  general  as  to  include  within 
its  scope  all  persons  belonging  to  the  military  service.  It  includes 
an  officer  on  the  retired  list.     C.  16166,  Nov.  15,  1905. 

I.  Paragraph  734,  Army  Regulations,  1901  (663  of  1910),  provides 
that  "disbursing  officers  wiH  not  settle  with  heirs,  executors,  or 
administrators,  except  by  authority  of  the  proper  bureau  of  the  War 
Department,  and  upon  accounts  that  have  been  duly  audited  and 
certified  by  the  proper  accounting  officers  of  the  Treasury."  Held, 
that  this  regulation  refers  only  to  accounts  arising  out  of  dealings 
with  the  testator  or  intestate,  and  does  not  refer  to  a  case  where  a 
contract  was  made  with  an  executor  or  administrator  in  his  official 
capacity.     C.  16550,  July^  (?,  1904. 

LI.  The  Army  appropriation  act  for  the  year  ending  June  30,  1895 
(28  Stat.  233),  provided  that  open-market  purchases  could  be  made 
when  the  aggregate  amount  required  did  not  exceed  $200,  but  that 
"every  such  purchase  shaU  be  immediately  reported  to  the  Secretary 
of  War."  ^  On  the  question  as  to  the  powers  and  duties  of  the  Secretary 
of  War  in  reference  to  the  class  of  purchases  referred  to,  lield,  that  this 
legislation  considered  in  connection  with  section  216,  R.  S.,  which  pro- 
vides that  the  Secretary  of  War  "shall  perform  such  duties  as  shall 
from  time  to  time  be  enjoined  or  entrusted  to  him  by  the  President 
relative  .to  military  commissions,  the  military  forces,  the  warlike  stores 
of  the  United  States,  or  to  other  matters  respecting  military  affairs," 
vests  in  the  Secretary  the  power  and  the  duty  to  make  necessary 
regulations  to  carry  into  effect  the  legislation  in  question  and  in  doing 
so  he  may  legally  require  proposed  open-market  purchases  to  be 
submitted  for  his  approval.^     0.  1112,  Mar.  12,  1895. 

HI.  Section  3651,  R.  S.,  forbids  disbursing  officers  to  exchange  the 
funds  furnished  them,  with  certain  exceptions  which  do  not  include 
foreign  coin,  and  "every  such  disbursing  officer,  when  the  means  for 

1  In  V  Comp.  Dec. ,  259,  it  was  held  that  the  provision  of  the  act  of  July  5, 1884  (23  Stat. 
109),  that  purchases  of  supplies  for  the  Quartermaster's  and  Commissary  Departments 
in  cases  of  emergency  "must  at  once  be  reported  to  the  Secretary  of  War  for  his 
approval "  is  directory  only,  and  the  failure  of  certain  officers  of  these  departments 
to  make  reports  of  such  purchases  does  not  invalidate  the  purchases  or  the  payments 
therefor,  A  provision  of  the  act  of  Mar.  15, 1898  (30  Stat.  322),  requiring  open-market 
purchases  to  be  reported  to  the  Secretary  of  War,  was  held  by  the  comptroller  in  an 
unpublished  opinion  to  be  directory  only,  and  that  a  failure  to  make  a  report  did  not 
affect  the  validity  of  the  purchase.    See  C.  6931,  Oct.  9,  1899. 

2  The  act  of  June  12,  1906  (34  Stats.  258),  which  is  still  in  force  specifically  author- 
izes the  Secretary  to  prescribe  regulations. 


CONTRACTS  LIII.  385 

his  disbursements  are  furnished  liim  in  j^old,  silver,  United  States 
notes,  or  national-bank  notes,  shall  make  his  payments  in  the  moneys 
so  furnished."  Held,  that  in  view  of  the  aoove  statute  a  Govern- 
ment contract  should  not  call  for  payment  in  foreign  coin,  but  an 
amendment  to  the  Army  Reo:ulations  requiring  that  in  contracts  in 
the  Philippines  calling  for  the  payment  of  money  by  the  United 
States,  payment  should  be  of  a  specified  amount  of  United  States 
money,  or  of  so  much  United  States  money  as  might,  at  the  time  of 
payment,  be  equal  to  a  specified  number  of  Mexican  silver  dollars  at 
a  designated  bank,  would  not  be  in  conflict  with  the  above  section 
of  the  Revised  Statutes.     C.  8393,  July  9,  1900. 

LIII.  Where  communications  and  other  papers  are  received  from 
business  firms  with  the  name  of  the  firm  signed  by  means  of  a  type- 
^vriter  or  rubber  stamp,  recommended  that  in  view  of  the  commercial 
practice  in  this  regard  that  such  signatures  should  be  accepted  with- 
out question,  except  as  to  formal  instruments  such  as  formal  vouchers, 
contracts,  bonds,  bids,  etc.     C.  27933,  Mar.  3,  1911. 

II V.  A  contract  for  the  making  of  an  18-inch  gun  provided  for  a 
test  to  be  prescribed  by  the  Secretary  of  War.  In  pursuance  of  this 
provision  tne  contractor  wrote  to  the  Secretary-  suggesting  that  tests 
should  consist  of  the  firing  of  five  shots.  The  Secretary  indorsed  this 
request  ** approved"  and  referred  it  to  the  Chief  of  Ordnance,  who 
returned  it  with  the  statement  that  five  shots  was  not  the  usual  test 
to  which  guns  were  subjected.  Thereupon  the  Secretary  of  War 
wrote  to  the  contractor  and,  without  informing  him  that  he  had  ap- 
proved its  request,  informed  him  of  the  reply  of  the  Chief  of  Ordnance. 
Held,  that  under  the  circumstances  the  Secretary  of  War  could  set 
aside  his  first  action  of  approval  and  prescribe  whatever  test  of 
endurance  he  might  decide  to  be  a  proper  one.  C.  6945,  Aug.  28, 
1899. 

LV.  Where  a  contract  for  repairing  a  transport  req^uired  that  the 
contractors  should  render  each  morning  a  sworn  itemized  statement 
setting  forth  in  detail  the  amount  and  cost  of  material  and  labor 
used  in  making  the  repairs  during  the  preceding  day,  and,  after  the 
completion  of  the  work,  bills  for  a  large  amount  that  was  not  included 
in  the  daily  statements  were  submitted,  held,  that  if  the  work  repre- 
sented by  the  bills  was  actually  performed  and  was  covered  by  the 
contract  the  United  States  is  legally  bound  to  pay  for  it,  notwith- 
standing the  failure  to  include  it  in  the  daily  statements.  C.  10299, 
May  4,  1901. 

LVI.  Where  a  bill  of  sale  of  a  steamship  belonging  to  a  partnership 
was  under  seal  and  signed  by  only  one  member  or  the  partnership, 
held  that  the  implied  authority  of  a  partner  to  execute  contracts 
for  the  firm  of  which  he  is  a  member  does  not  extend  to  contracts 
under  seal,  and,  therefore,  where  a  partner  of  a  firm  signs  a  paper 
under  seal  on  behalf  of  the  firm  there  should  be  filed  with  it  evidence 
of  an  express  authority  from  the  other  partners  to  sign  for  them;^ 
but  that  in  a  case  where  such  express  authority  has  not  been  ob- 
tained, and  it  is  not  convenient  to  obtain  the  signature  of  all  the 
members  of  the  firm,  a  statement  should  be  obtained,  signed  by  the 
other  members,  to  the  effect  that  the  signing  member  had  authority 
to  execute  the  bill  of  sale.     Such  a  statement,  taken  in  connection 


See  Bonds.    I.  R. 


31106°—] 


386  CONTRACTS  LVII. 

with  the  delivery  of  and  the  payment  for,  the  vessel,  will  pass  title 
to  the  United  States.    C.  4611,  July  IS,  1898. 

LVII.  A  cylinder  installed  in  a  steamer  constructed  for  the  Govern- 
ment did  not  meet  the  tests  required  by  the  contract,  but  it  was  prob- 
able that  the  cylinder  as  installed  would  continue  to  prove  satisfactory. 
Held  that  there  was  no  legal  objection  to  accepting  the  cylinder  as 
installed  upon  the  contractor  filing  with  the  department  a  bond 
guaranteed  by  a  surety  conditioned  to  replace  the  cylinder  and  pay 
for  the  hire  of  a  substitute  vessel  in  the  event  that  it  was  necessary 
to  replace  the  cylinder  within  two  years  and  upon  the  contractor 
further  giving  his  sole  bond  to  cover  the  remaining  period  of  the 
natural  life  of  the  cylinder.     G.  26577,  Apr.  22,  1910. 

IIX.  The  officer  charged  with  the  letting  of  a  contract  wrote  to  the 
bidder  whose  bid  had  been  accepted  to  appear  at  the  office  of  the 
officer  to  execute  the  contract  and  to  bring  his  sureties  with  him. 
In  response  to  this  direction  the  bidder  appeared  and  his  papers 
were  executed  before  a  notary  in  the  office,  and  for  the  services  of 
the  notary  a  charge  was  made.  Held  that  when  a  contract  is  awarded 
to  a  person  he  has  a  right  to  go  before  officers  of  his.  own  choosing 
(if  they  are  of  a  class  of  officers  such  as  the  Government  requires) 
and  execute  his  bond  and  make  his  affidavit,  etc.,  and  submit  them 
to  the  Government  officers  for  acceptance.  The  Government  officer 
has  not  the  right  to  call  him  before  a  particular  official  of  his  choosing 
to  execute  the  necessary  papers.     G.  167,  Aug.  18,  189^. 

IX.  A  bid  for  the  transportation  of  troops  and  supplies  to  Alaska 
was  received  from  a  company  whose  road  ran  partly  through  Canadian 
territory.  Held,  as  to  the  transportation  of  troops,  that  as  the  rule 
of  international  law  in  respect  to  the  passage  of  detachments  of  foreign 
troops  through  friendly  territory  is  that  such  troops  can  pass  omy 
with  the  express  permission  of  the  friendly  nation,  a  clause  should  be 
inserted  in  the  contract  requiring  the  company  to  obtain  the  written 
consent  of  the  Canadian  Government  to  the  transportation  of  United 
States  troops  through  Canadian  territory,  and  that  in  case  such  per- 
missiojQ  should  be  refused  the  troops  should  be  carried  to  their 
destination  by  another  route  without  additional  expense  to  the 
United  States.  Held,  as  to  the  transportation  of  supplies,  that 
although  the  rule  of  international  law  does  not  require  the  consent  of 
a  friendly  nation  to  the  passage  through  its  territory  of  supplies 
belonging  to  a  foreign  nation  in  the  ordinary  course  of  commerce, 
and  although  duties  ordinarily  are  not  levied  on  such  supplies,  yet  as 
a  matter  of  precaution  a  clause  should  be  inserted  in  the  contract 
that  any  duties  or  impositions  in  the  nature  of  customs  dues  should 
be  paid  by  the  contractor  and  should  not  become  a  charge  against 
the  United  States.  G.  14552,  Dec.  18,  1903,  Jan.  19,  1906.  Where 
a  contract  was  to  be  made  for  the  transportation  of  supplies  of  the 
United  States  through  Mexican  territory  at  a  time  when  conditions 
were  somewhat  unsettled,  advised  that  there  should  also  be  inserted 
in  the  contract  a  clause  requiring  the  carrier  to  make  good  any  loss 
to  the  property  which  might  result  from  political  or  other  dis- 
turbances, as  well  as  a  clause  requiring  the  contractor  to  pay  any 
duties  or  impositions  in  the  nature  of  customs  duties.  U.  28430, 
May  26,  1911. 

IXI.  Blasting  carried  on  in  the  execution  of  a  Government  con- 
tract for  rock  excavation  near  a  military  post  injured  the  plastering. 
It  appeared  that  the  blasting  was  carried  on  with  reasonable  care. 


CONTEACTS  LXII — CONTRACTOR.  387 

Held,  that  in  the  absence  of  facts  showing  that  the  performance  of 
the  contract  by  blasting  was  not  contemplated  by  the  parties,  or  that 
the  contractor  assumed  the  responsibility  for  damages  to  the  United 
States  as  the  result  of  its  operations,  no  recovery  could  be  had  against 
the  contractor  for  damages.     C.  27673,  Jan.  23,  1911. 

LXII.  In  the  case  of  Belknap  v.  Schild  (161  U.  S.,  10),  decided  by 
the  United  States  Supreme  Court  in  February,  1896,  it  was  held  that 
where  the  United  States  owns  a  piece  of  property  and  is  in  peaceable 
possession  of  it,  the  Government  can  not  be  enjoined  by  courts  and 
prevented  from  using  it  for  the  Government  purposes  for  which  it  was 
mtended.  So  where,  after  an  electric  plant  had  been  constructed 
under  contract  at  Watervliet  Arsenal,  suit  was  subsequentl;^  brought 
against  the  contractor  by  another  electric  company  for  infringement 
of  its  patent  in  the  construction  of  the  plant,  making  the  commanding 
officer  of  the  arsenal  a  defendant,  asking  for  damages  and  that  the 
latter  be  permanently  enjoined  from  using  the  plant,  held  upon  a 
request  by  the  contractor  for  final  payment,  that  in  view  of  the 
decision  of  the  Supreme  Court  cited,  there  was  no  objection  to  making 
the  payment.     CC  716,  Apr.  17,  1896. 

CROSS   REFERENCE. 

Bonds  not  under  seal See  Bonds  I  F  2. 

Double  aspect  of  bond See  Bonds  I  M  7. 

Enlistment  contract See  Enlistment. 

Pay  and  allowances  I  C  2. 

Extension  of See  Bonds  I  M  6. 

Implied See  Claims  VII  C  2;  3. 

Lease  reneived See  Public  property  VII  A  5. 

Modifications See  Bonds  I  M  4;  10, 

Muster  in See  Volunteer  Army  II  E. 

Payment  for  preparation  of. See  Appropriations  V  C. 

Rescinding  of,  for  fraud See  Pay  and  allowances  III  C  2  c  (1). 

Supplemental,  sureties  on  bond  not  bound  by  See  Bonds  IMS. 
To   pay    local   authorities  for   inspection  See  Tax  III  J. 

services. 
To  carry  troops See  Army  I  G  3  b  (2)  (a)  [2]  [a]. 

CONTEACT  DENTAL  SURGEON. 

See  Army  I  G  3  d  (4)  (d). 

CONTRACT  SURGEON. 

See  Articles  op  War  LXXXII  A  2. 

See  Army  I  G  3  d  (4)  to  (5). 

Disability  of,  not  basis  for  retirement See  Retirement  I  B  5  b. 

Service  as,  under  act  of  Apr.  23,  1904  {33  See  Retirement  I  C  1  d. 
Stat.  264). 

CONTRACTOR. 

See  Contracts. 

See  Eight-hour  Law  III. 

Alien,  employment  of. See  Alien  VII. 

Bonds  of. See  Bonds  III  to  IV. 

Cutting  wood  on  military  reservation See  Public  property  III  F  1. 

Penalty  envelopes See  Communication  II  A  2  b. 

River  and  harbor  work See  Navigable  w^^ters  X  C  to  D. 

Titleof,  in  bond See  Bonds  1 1. 


388  CONVENING  AUTHORITY COEONEE. 

CONVENING  AUTHORITY. 

See  Articles  of  War  LXXI  A  to  LXXII 

I  3  a  (1). 
See  Discipline  III  to  IV;  VII  B  2;  IX  L  2. 

Charges,  withdrawal  of. See  Discipline  III. 

Contempt,  action  in  case  of See  Discipline  VII  C  2. 

False  swearing,  action  on See  Discipline  VII  F. 

Incompetent -• See  Discharge  XVI  G;  G  4. 

Discipline  XV  HI  to  2. 
Of  summary  court See  Discipline  XVI  E  1  to  9. 

COOK. 

Paid  from  company  funa See  Pay  and  allowances  I  C  6  b  (4). 

Soldier  detailed  as See  Articles  of  War  XXI  B  2. 

Volunteers See  Volunteer  Army  III  B  2. 

COPIES  OF  OFFICIAL  RECORDS. 

See  Discipline  XI  A  17  a  (2)  (a)  [1]  [a]. 
Furnished  from  War  Department See  Official  records  I  A  1  to  3. 

COPY  OF  CONTRACT. 

See  Contracts  XX  C  12;  14. 

COPYRIGHT. 

I.  AUTHOR  OR  PROPRIETOR  ALONE  CAN  COPYRIGHT. 

I.  The  author  or  proprietor  of  a  hterary  work  is  the  only  one  who 
can  legally  copyright  it,  and  he  has  the  exclusive  right  to  do  so.* 
Held  that  a  retired  Army  officer  who  had  purchased  a  set  of  electro- 
type plates  of  the  Drill  Regulations  from  the  Public  Printer  was  not 
authorized  to  copyright  them,  as  he  was  not  the  author  and  did 
not  become  so  by  making  an  ''abridgment."  ^  P.  50,  350,  373,  Nov. 
25  and  Dec.  1,  1891.  Held  that  an  official  of  the  War  Department 
could  not  copyright  in  his  own  name  a  compilation  of  facts  derived 
from  records  the  property  of  the  United  States.  P.  43,  294,  Oct.  25, 
1890.  Held  that  an  officer  may  not  copyright  a  book  which  he  pre- 
pares under  orders  from  competent  authority  and  which,  after  sub- 
mission to  a  board  of  officers  and  a  slight  revision,  is  approved  by 
the  Secretary  of  War  for  publication  to  and  use  by  the  Army.^  v. 
3433,  Aug.  17,  1897. 

cross  reference. 

By  officer See  Articles  of  War  LXII  D. 

CORAM  NON  JUDICE. 

Discharge  by  United  States  Commissioner.  .See  Discharge  XVI  D  1. 

CORONER. 

Fees  of See  Claims  XII  O. 

Inquest  by See  Command  V  A  7. 

1  Drone  on  Copyright,  324;  sec.  4952,  R.  S.;  and  sec.  1,  c.  565,  act  of  Mar.  3,  1891. 

2  Gray  v.  Russell,  1  Story,  11;  Drone  on  Copyright,  158;  also  see  sec.  52  of  the  pub- 
lic printing  and  binding  act  of  Jan.  12,  1895  (28  Stat.,  608). 

^  Wheaton  v.  Peters,  8  Peters,  U.  S.,  591;  American  and  English  Enc.  of  Law,  Vol. 
IV,  pp.  154,  158,  first  edition. 


CORPORATIONS — CROPS.  389 

CORPORATIONS. 

Bonds  of. See  Bonds  I  G  to  H;  IV  G;  J. 

Foreign See  Bonds  V  I ;  J. 

Officer  niay  belong  to See  Contracts  XV  A  5. 

Post  exchange  is  not See  Government  Agency  II  A  2. 

Stockholders  as  sureties See  Bonds  I  M  13. 

CORPS  COMMANDER. 
As  convening  authority See  Articles  of  War  LXXII  D  1. 

CORPUS  DELICTI. 
Proof  of. See  DiscrPLiNE  XI  A  7  b. 

CORRESPONDENCE. 

See  Communications. 

COUNSEL. 

Assignment  of See  Discipline  VII  D. 

Assistant  to  judge  advocate See  Discipline  IV  I  1 ;  2. 

Continuance  to  secure See  Articles  of  War  XCIII  A  1. 

Examining  board See  Retirement  I  B  6  a  (1). 

General  court-martial See  Command  V  A  5. 

Discipline  V.  G  to  H. 

In  absence  of  accused See  Discipline  VIII  H  2, 

Retired  officer  as See  Retirement  I  H  1. 

Right  to See  Discipline  XV  B. 

COURT  OF  INQUIRY. 

See  Articles  op  War  CXV  A;  B;  CXIX 
A;  B;  CXXI  A. 

Juridiction  of. See  Discipline  XVIII  B. 

Opinion  by See  Articles  of  War  CII  G. 

Retired  officers  as  members See  Retirement  I  K  2  e. 

COWARDICE. 

Punishment  for See  Articles  of  War  (100)  C  A ;  B. 

CRIME. 

Charging  of. See  Discipline  II  D  19. 

CRIMINATING  EVIDENCE. 

By  witness See  Discipline  X  H  1 ;  2 

By  accused See  Discipline  XI  A  14  b ;  b  (1). 

CRITICISM. 
Of  officer See  Articles  of  War  LXII  C  1;  D. 

CROPS. 

Claim  for  damage  to  by  soldiers See  Claims  II;  IV. 

Damage  to,  during  State  encampment See  Militia  VI  B  1  e  (6). 


390  CUBA — DATE. 

CUBA. 

Extradition  from See  Extradition  IV. 

Fifty-fourth  article  of  war  enforcihle  in See  Articles  of  War,  LIV  G. 

Intervention  in See  War  I  C  8  c  (1)  to  (2). 

Naturalization See  Alien  III. 

Officer  holding  civil  office  in See  Office  IV  A  2  e  (6)  (a). 

CUMULATIVE   BONDS. 

See  Bonds  II  B. 

CUSTOM   OF   THE   SERVICE. 

Accuser  remaining  in  court  room See  Discipline  IV  K. 

Ball  and  chain  punishment See  Discipline  XII  B  3  h. 

Challenge  by  judge  advocate See  Discipline  IV  O. 

Charges See  Discipline  II  D  8  a. 

Clothing:  Issues  of  to  prisoners See  Pay  and  allowances  II  A  3  a  (3)  (a). 

Colleges:  Issue  of  arms  to See  Military  instruction  II  B  2  a. 

Considered  by  courts See  Discipline  V  G  4. 

Constructive  pardon See  Absence  II  B  7. 

Delegation  of  authority See  Command  VI  Ala. 

Discipline  I  E  1. 

Discretionary  punishment See  Discipline  XII  B  2  a  to  e. 

Judge  advocate  advising  court See  Discipline  IV  C  1. 

Military  commission See  War  I  C  8  a  (3)  (a). 

Notice  of  discharge See  Discharge  XVII  D  1. 

Pass See  Absence  I  C  1. 

Ranlc:  date  of. See  Hank  I  B  1  b. 

Receipt  of  orders See  Communications  I  B  1  a. 

Recess  of  court See  Discipline  XIII  F. 

Relief  of  officer  from  duty See  Command  V  A  1  a. 

Remarks  by  court See  Discipline  XII  C. 

Remission See  Pardon  XVI  C. 

Sentence:  adoption  of. See  Discipline  XII  B  3  a. 

Sentence  of  incapacity  to  hold  office See  Pardon  XVI  A. 

Sentence  of  suspension  from  pay  and  duty.  .See  Command  V  A  1  b. 

Surrender  of  bonds  by  War  Department See  Bonds  I  P. 

Three  the  minimum  membership  of  military  See  War  I  C  8  a  (3)  {d)  [1]. 
commission. 

Unauthorized  punishments See  Discipline  XVII  B  1  a;  c. 

Wholly  retiring  officer See  Retirement  I  B  3  c. 

CUSTOMS. 

Appropriation  for  paying See  Appropriations  XXXIX. 

Collection  of  under  military  government See  War  I  C  6  f  (1). 

Commanding  general  may  collect See  War  I  C  8  a  (2)  (c)  to  (d). 

On  Government  property See  Army  I  G  3  b  (2)  (a)  [2]  [a];  [6]. 

DAMAGES. 

See  Contracts  XVI  C;  XIX  to  XX. 
To  private  property  during  joint  encamp-  See  Militia  VI  B  2  m;  C  1  i;  j. 
ment. 

DATE. 

Bond See  Bonds  I  K  to  L. 

Discharge  of  sick  soldier See  Enlistment  I  B  2  i. 

Enlistment See  Enlistment  I  A  8  to  9. 

Forfeiture See  Pay  and  allowances  III  C  1  a  (1)  (a) 

[1]. 

Heat  and  light  increased  at  promotion See  Pay  and  allowances  II  A  1  c  (5). 

Muster-in See  Volunteer  Army  II  C  1. 

Muster-out See  Volunteer  Army  IV  D  to  E. 


DEATH — DEFAULT.  391 

Rank,  attachment  of. See  Rank  I  B  to  C. 

Relative  rank,  attachment  of. See  Rank  1 1  A  to  B  . 

Retirement  of  officer See  Retirement  I  A  1  a;  D. 

Sentence  operates See  Pay  and  allowances  III  C  1  b. 

Separation  from  service See  Pay  and  allowances  I  A  1  a. 

Suspension  after  examination See  Rank  V  C  to  D. 

Vesting  of  office See  Office  III  A  6  to  7;  B  3  to  4. 

DEATH. 

OfUdder See  Contracts  XI  D  1.     • 

Of  retired  soldier See  Retirement  II  F  1. 

Procedure  in  case  of. See  Command  V  A  7. 

DEBT 

See  Private  debt. 

Due  to  company  fund See  Government  agencies  III  A  to  B. 

Of  post  exchanges See  Government  agencies  II  E  to  F. 

Refusal  to  pay See  Article  of  War  XXI  B  1. 

DECEASED  OFFICER  OR  SOLDIER. 

See  Public  property  V  F  1  b  (3)  (g). 

Appointment  of  deceased  officer See  Office  III  B  3  a  (1). 

Burial  of  retired  officer See  Retirement  II. 

Claim  for  pay See  Militia  XI  Q. 

Deserter's  release See  Desertion  XVII  D. 

Pardon  of. See  Pardon  II. 

Pay  due,  used  to  reimburse  company  fund .  .See  Pay  and  allowances  III  B  7  a. 
Rank  increased ofretired officer  not  authorized  ^ee  Retirement  I  C  2  c. 
Responsibility  of  quxirtermaster  in  connec-  See  Government  agencies  IX. 

tion  with  shipment. 
Transportation  of. See  Appropriations  LXIII. 

DECLARATION  OF  WAR. 

Not  necessary See  War  I  B  1. 

Not  necessary  in  Indian  war See  War  I  A  5  a. 

DECREPIT  OFFICERS. 

See  Militia  IV  G. 

DE  FACTO  OFFICERS. 

Status  of. See  Office  V  A  6  a. 

Vice  illegally  dismissed  officer See  Office  IV  E  1  b  (1)  (a). 

DEED. 

Acceptance  of. See  Public  property  II  A  3. 

Cancellation  of. See  Public  property  II  A  3  ^. 

Disposition  of  land  without See  Public  property  II  B  1. 

Execution  of,  by  President See  Army  I  B  1  a  (2) . 

Execution  of,  by  Secretary  of  War See  Army  I  B  2  b  (3)  (a). 

Under  authority  of  statute See  Public  property  II  B  2. 

Warranty  to  land  sold  by  Government. See  Navigable  water  X  F  1. 

DEFAULT. 

On  contract See  Contracts  XX  C  11. 


392  DEFENSES — DEPOSIT. 

DEFENSES. 

Responsibility  for See  Army  I  B  10. 

DEFENSE. 

Accused See  Discipline  V  A  to  1 1. 

Conduct  unbecoming See  Discipline  XII  A  11  a. 

Constructive  pardon See  Absence  II  B  7. 

Desertion See  Desertion  IX  A  to  O. 

Drunkenness See  Discipline  XII  A  9  a. 

Embezzlement See  Articles  of  War  LXII  C  2. 

Discipline  XII  A  12  b. 

Sleeping  on  post See  Discipline  XII  A 10  a. 

Statute  of  limitations See  Articles  of  War  CIII  B. 

DELAYED  DELIVERY. 

See  Contracts  XIX  B. 

DELEGATION   OF   POWER. 

By  President See  Command  I  A. 

By  Secretary  of  War See  Army  I  B  2  e  (1). 

To  accept  bonds See  Bonds  II  L. 

To  administer  oath See  Office  III  A  8  a  (1). 

To  arrest  or  confine See  Discipline  I  E  1, 

To  Chief  of  Engineers  under  river  and  harbor  See  Navigable  Waters  V  B;  X  F  2. 
act. 

To  convene  court See  Articles  of  War  LXII  E  1. 

Discipline  III  C  3. 

To  pardon See  Articles  of  War  CXII  A  1. 

To  remove  wrecks See  Navigable  Waters  VII  A. 

To  review  proceedings See  Discipline  XIV  C, 

To  sign  contracts See  Contracts  I  A  2;  VI  H. 

DEPARTMENT   COMMANDER. 

Assignment  to  command  by See  Command  IV  A. 

Convening  officer See  Articles  of  War  LXXII  A  to  1 3  a  (1). 

Discipline  III  to  IV. 

Deposition  of. See  Articles  of  War  XCI  A  1. 

Duty  under  fifty-ninth  article  of  war See  Articles  of  War  LIX  K. 

Jurisdiction  over  retired  enlisted  men See  Retirement  II  B  3. 

Neutrality See  Army  II  K  to  L. 

Revieiving  officer See  Discipline  XIV  to  XV. 

Summary  wurts See  Discipline  XVI  F. 

DEPARTMENT  JUDGE  ADVOCATE. 

Formulation  of  charge  by See  Articles  of  War  LXXII  I  3  a  (1). 

Oath  administering See  Office  III  A  8  to  9. 

DEPENDENT   PARENT. 

Discharge  on  account  of See  Discharge  VI  C  1;  2. 

DEPORTATION. 

Of  persons  by  commanding  general See  War  I  C  8  (2)  (d). 

DEPOSIT. 

Attachment  of  public  money  in  bank See  Public  money  II  C  3. 

Forfeiture  of See  Desertion  XIV  E. 

Sentence  to,  improper See  Discipline  XII  B  4  C. 

Soldier's  pay See  Pay  and  allowances  I  C  7  to  8. 


DEPOSITION — desertion:  synopsis.  393 

DEPOSITION. 

See  Articles  op  War  XCI  A  to  K. 

Important  officials See  Discipline  X  D  1. 

Preparation  of See  Discipline  I V  B  3  a  (1). 

Retiring  board See  Retirement  I  B  1  c  (2). 

DEPRIVATION   OF  PAY. 

See  Pay  and  allowances  I  A  1  b;  III  tc 

IV. 
See  Discipline  XII  B  to  C. 
See  Desertion  V  D  to  F;  XIV  to  XV. 

DESCRIPTIVE   LIST. 

Evidential  value  of. See  Discipline  XI  A  17  a  (2)  (6)  [4]. 

See  Desertion  IX  B. 

DESERTER. 

Alien,  discharge  of. See  Discharge  XXVI  A. 

Arrest  of,  while  on  pass See  Absence  I  C  1  a;  a  (1). 

Character  of. See  Discharge  II  B  2  a. 

Claim  for  wrongful  arrest  as See  Claims  II. 

Clothing  issued  to,  upon  return See  Pay  and  allowances  II  A  3  a  (4)  (c). 

Discharged  without  honor  for See  Discharge  III  B  5  a. 

Draft  of. See  Enlistment  II  F. 

Enlistment  of See  Enlistment  I  A  9  f  (2);  (5);  (8);  g 

(3);h;D3b;c(13);(14);(15);(16); 

r.     .  .  o    ^(i8);(i8)(6);  (/);W(i). 

From  draft See  Enlistment  II  E. 

Honorable  discharge  of See  Discharge  II  B  2. 

Make  good  time  lost See  Articles  of  War  XLVIII  A  to  F. 

Medical  attendance  for See  Claims  VIII. 

Muster  out  of. See  Discharge  XIII  F. 

Pardon  of. See  Pardon  VII  B ;  XII :  XIV. 

Restoration  to  duty See  Restoration  to  duty. 

Enlistment  I  D  3  c  (7);  (14). 

Statement  by See  Discipline  IX  I  2. 

Status  after  muster  out   of  organization,  See  Volunteer  Army  IV  C  1  a  (2)  (6). 

United  States  Volunteers. 
Volunteer  dropped  as ,. See  Volunteer  Army  IV  D  1  a  (5)  (6). 

DESERTER'S   RELEASE. 

See  Desertion  XVII  A  to  H;  V  F  6. 

DESERTION. 

I.  DEFINED PageS99 

A.  Two  Elements — Each  must  be  Proven. 

B.  Does  Not  Necessarily  Include  Absence  from  Post. 

1.  Desertion  from  pass. 

C.  Desertion  of  Prisoners. 

1.  Escape. 

2.  By  enlisting  in  enemy's  army Page  400 

D.  By  Permitting  oneself  to  be  Drummed  Out. 

E.  Misbehavior  Before  Enemy  Not  Element  op  Desertion. 
n.  DESERTERS  AT  LARGE. 

A.  May  Not  Receive   Pay  if  Fraudulently   Secures   Position   in 
Quartermaster's  Department, 


394  desertion:  synopsis. 

m.  APPREHENSION. 

A.  As  Much  Force  May  be  Used  as  is  Necessary. 

B.  Any  Forcible  Entry  into  a  Private  Dwelling  that  Would  be 

Warranted  by  State   Law  Would  be   Sustained  by  Federal 
Courts Page  401 

C.  Once  Arrest  is  Made  Police  Officer  May  Take  Prisoner  Beyond 

His  Jurisdiction, 

D.  Arresting  Officer  Need  Not  Obey  a  Writ  of  Habeas  Corpus  of 

State  Court,  But  Should  Reply,  Giving  a  Reason  for  Non- 
compliance. 

E.  Civilian  Official  Who  Connives  at  Escape  is  Liable  to  Prose- 

cution. 

F.  Civilians  May,  Upon  Request  of  the  Military,  Arrest  Deserters. 

G.  Right  of  United  States  Over  Minor  Deserter  is  Paramount  to 

Right  of  Parents. 
H.  If  Evidence  Conclusive  of  Intent  Not  to  Return,  Pass  Does 
Not  Protect  From  Apprehension. 
IV.  EXTRADITION. 

A.  If  Deserter  Extradited  From  Mexico  on  Other  Charges  Can 

Not  be  Held  as  Deserter. 

B.  In  Absence  of  International  Convention  Deserter  Can  Not  be 

Arrested  as  Such  in  Mexico. 
0.  No  Existing  Extradition  Treaties  With  Great  Britain  in  Case 

OF  Desertion Page  402 

V.  REWARD. 

A.  Understanding  With  Civil  Authorities. 

1.  Appropriation  acts  do  not  nullify  Bpecific  acts  for  apprehension  of 
deserters. 
a.  Authority  granted  to  civil  officers  does  not  replace  authority 
of  military  officers  to  direct  arrest  by  civilians. 

B.  May  be  Paid  for  Delivery  of  Deserter. 

1.  When  he  is  charged  with  desertion Page  403 

2.  Not  charged  but  shown  administratively  to  be  a  deserter  in  fact. 

3.  If  convicted  of  absence  without  leave  only. 

4.  If  tried  for  absence  without  leave  only, 

5.  If  charge  is  erroneously  made. 

6.  Desertion  established  administratively. 

7.  Even  if  after  delivery,  discharged  on  writ  of  habeas  corpus. 

8.  To  a  recruiting  officer. 

a.  If  specially  authorized. 

b.  If  recruiting  officer  erroneously  releases  him Page  404 

9.  To  an  Army  detachment. 

10,  Paid  to  a  civilian  official  who  received  his  surrender. 

11,  Paid  to  Indian  police. 

12,  Paid  to  an  immigration  inspector, 

13,  Paid  to  a  constable  even  if  after  delivery  at  jail  sheriff  releases 

deserter. 

14,  Paid  to  a  civilian. 

a.  Who  arrests  deserter  on  request  of  the  military  . .  Page  405 

(1)  Nationality  of  deliverer  unimportant. 

b.  An  Indian. 

c.  A  Canadian  detective. 

d.  A  scavenger  at  a  post. 


DESERTION:   SYNOPSIS.  395 

V.  REWARD— Continued. 

B.  May  be  Paid  for  Delivery  op  Deserter — Continued. 

15.  Paid  to  several  who  jointly  arrest  and  deliver. 

a.  By  check  payable  to  them  jointly. 

16.  Paid  for  a  second  delivery  of  the  same  deserter, 

17.  Paid  for  delivery  of  escaped  general  prisoner. 

18.  Paid  from  "Contingencies  of  the  Army"  for  delivery;  expenses 

only. 

a.  Of  deserter  and  embezzler. 

b.  Of  deserter  delivered  by  police  of  Canada Page  406 

c.  Of  escaped  insane  soldier. 

d.  Of  soldier  charged  with  other  offenses. 

C.  Amount  of  Reward  is  That  Which  is  Authorized  at  the  Date  op 

Apprehension. 
1.  The  reward  is  in  full  for  all  services. 

D.  Stoppage  Against  Deserters'  Pay. 

1.  Of  reward  upon  conviction. 

a.  Of  desertion. 

b.  Of  absence  without  leave  if  sentence  so  directs. 

2.  Stoppage  of  reward,  of  expense  of  apprehension,  etc.,  and  original 

payment  of  reward  are  distinct  transactions Page  407 

3.  Expense  of  apprehension  and   transportation   may   be   charged 

against  a  convicted  deserter. 

a.  Transportation  and  commutation  of  rations  of  self  and  guard. 

b.  Transportation  of  sergeant  sent  to  identify  deserter. 

c.  Expenses  incurred  in  arresting  wrong  man. 

4.  Expense  of  returning  deserter  from  place  of  delivery  to  proper 

station  not  included  in  reward. 
a.  Over  shortest  usually  traveled  route Page  408 

E.  Stoppage  Can  Not  be  Made. 

1.  If  acquitted  or  conviction  disapproved. 

2.  If  acquittal  disapproved. 

3.  Expense  of  transportation  if  conviction  disapproved. 

4.  Expense  of  transportation  in  execution  of  sentence. 

5.  If  charge  removed  as  erroneously  made. 

6.  If  soldier  not  a  deserter  arrested  without  request. 

F.  Reward  Not  to  be  Paid. 

1.  For  partial  performance  only Page  409 

2.  For  merely  giving  notice  of  location  of  deserter. 

a.  If  he  has  reenlisted. 

(1)  In  the  Army. 

(2)  In  the  Navy. 

(3)  In  the  Marine  Corps. 

3.  Without  delivery. 

a.  After  apprehension  released  on  writ  of  habeas  corpus. 

4.  If  man  has  been  dishonorably  discharged. 

a.  Unless  by  mistake  he  is  still  carried  on  the  rolls . .  Page  410 

5.  For  apprehension   of  a  man  discharged  without  honor  for  the 

desertion. 

6.  If  a  man  has  deserter's  release. 

7.  If  statute  of  limitations  has  run. 

a.  Fair  remuneration  for  time  and  expense  may  be  allowed. 

b.  Exception — desertion  in  time  of  war. 


896  deseetion:  synopsis. 

V.  REWARD— Continued. 

F.  Reward  Not  to  be  Paid — Continued. 

8.  If  deserter  arrested  abroad  without  authority. 

9.  If  deserter  extradited  on  other  charges Page  411 

10.  If  deserter  surrendered. 

a.  To  a  recruiting  officer  and  was  delivered  by  the  police  in 

whose  custody  he  was  placed. 

b.  To  a  recruiting  officer  and  while  proceeding  on  Government 

transportation  to  a  post  was  arrested. 

11.  To  commissioned  officers  or  enlisted  men. 

12.  To  customs  officer  for  apprehension  without  request. 

13.  To  Idaho  justice  of  the  peace  for  apprehension  without  request. 

14.  If  evidence  of  collusion. 

15.  Where  no  evidence  of  desertion Page  412 

16.  For  suspected  naval  deserter  who  is  discovered  to  be  Army  deserter. 

17.  If  delivered  to  police  on  other  charges. 

18.  For  arrest  of  man  not  charged  with  desertion  and  not  a  deserter  in 

fact. 

19.  In  case  of  arrest  of  wrong  man  no  reimbursement  for  damages  and 

expenses  incurred  by  the  arresting  officer. 

20.  If  deserter  himself  gives  notice. 

a.  To  a  policeman  who  arrests  him. 

b.  To  military  authorities  by  letter Page  41S 

VI.  REENLISTMENT. 

A.  Op  Deserter  Restored  to  Duty  Without  Trial. 

B.  Policy  in  Handling  Fraudulent  Enlistment  of  Deserters. 

C.  The  Draft  of  a  Deserter  is  Legal. 

D.  Secretary  op  War  May  Decide  Deserter's  Service  Has  Been 

Honest  and  Faithful  for  the  Purpose  of  Reenlistment. 
Vn.  UNDER  MILITARY  CONTROL. 

A.  Should  be  Taken  up  as  a  Private. 

1.  Case  of  a  first-class  private,  Engineer  Corps, 

2.  If  insane  (not  in  line  of  duty)  when  delivered  should  be  dis- 

charged without  honor. 
Vm.  STATUTE  OF  LIMITATIONS.    (See  One  Hundred  and  Third  Article 
OP  War.) 
IX.  EVIDENCE  OF. 

A.  Charge  is  Not. 

B.  Notation  on  Records Page  414 

C.  Report   op   Adjutant   General   Containing   Extracts    from 

Records. 
.     D.  Entry  in  Prison  Report. 

E.  First  Sergeant's  Statement  That  Man  is  a  Deserter. 

F.  Entry  on  Rolls  "  Dropped  for  Desertion." 

G.  Desertion  from  Marine  Corps. 
E.  Date  of  Enlistment. 

I.  Upon  Enlistment  Was  Unapprehended  Deserteb 
K.  Illtreatment,  Poor  Food,  etc. 
L.  Homesickness. 
M.  Called  to  Germany  for  Military  Duty. 

N .  Restored  to  Duty  Without  Trial Page  415 

O.  A  Volunteer  Not  a  Deserter  After  Volunteer  Army  Dis- 
banded. 


desertion:  synopsis.  397 

X.  PUNISHMENT. 

A.  Sections  1996  and  1998,  R.  S.,UndulySevere  for  Time  of  Peace. 

B.  Evidence  of  Previous  Desertion  Not  Limited  to  Current  En- 

listment. 

C.  Confined  in  Penitentiary. 

1.  Convicted  of  desertion  only,  may  not  be. 

2.  Convicted  also  of  other  offenses  also,  may  be. 

D.  Desertion  in  Time  op  War  but  Trial  in  Time  of  Peace — Punish- 

ment May  Not  Exceed  Limit  Fixed  in  Executive  Order. 
XI.  LESSER  INCLUDED  OFFENSE. 
Xn.  RESTORATION  TO  DUTY  WITHOUT  TRIAL. 

A.  No  Legal  Objection  if  Deserter  Surrenders Page  416 

1.  No  legal  objection  if  deserter  fraudulently  enlists. 

B.  Application  Should  be  by  Company  Commander. 

xm.  MAKING  GOOD  TIME  LOST.    (See  Forty-eighth  Article  of  War.) 
XIV.  FORFEITURES. 

A.  Of  Pay  and  Allowance. 

1.  No  service,  no  pay. 

2.  Conviction  disapproved  on  ground  that  evidence  did  not  sustain 

charge — no  forfeiture. 

3.  Restoration  to  duty  without  trial. 

4.  Discharged  without  honor Page  417 

5.  Conviction  disapproved,  no  reason  given — question  of  forfeiture 

settled  administratively. 

6.  Acquitted — no  forfeiture. 

7.  Removal  of  charge  removes  liability  to  forfeiture. 

B.  Of  Rights  of  Citizenship  and  Incapacity  to  Hold  Office. 

1.  Philippine  scout  does  not  forfeit  citizenship Page  418 

C.  Private  Money  Not  Forfeited. 

D.  Insane  Deserter  Does  Not  Suffer  Forfeiture. 

E.  Deposits  Forfeited. 

F.  Balance  in  Deserter's  Favor  After  Settlement  Can  Not  be 

Used  to  Pay  Debt  to  Company  Fund. 

XV.  PARDON. 

A.  Can  Not  Remove  a  Charge  of  Desertion. 

B.  By  Proclamation  on  Condition  of  Return  to  Service. 

1.  A  deserter  of  two  offenses  returned  and  finished  one  enlistment — 

pardoned Page  419 

2.  Proclamation,  March  11,  1865,  applies  to  men  arrested. 

3.  No  amnesty  proclamation  in  force. 

C.  Pardon  Not  Extended  to  Deserters  at  Large 

D.  Restoration  to  Duty  Without  Trial  is  Constructive  Pardon. 

E.  Practice  to  Restore  Citizenship  to  Convicted  Deserter  Whose 

Conduct  in  Civil  Life  Has  Been  Good, 
1.  Should  submit  certificates  from  reputable  citizens. . . .  Page  420 

F.  Soldier    Convicted   of  Desertion   but  Retained  in   Service 

Should  Apply  for  Pardon. 

XVI.  REMOVAL  OF  CHARGE  OF  DESERTION. 

A.  Secretary  May  Remove  Charge. 

1.  He  may  decide  a  deserter's  service  to  be  honest  and  faithful  for 
the  purpose  of  reenlistment.     {See  VI  D  ante.) 

B.  By  an  Honorable  Discharge. 

C.  Because  Erroneously  Made. 

1.  Prisoner  of  war. 

2.  Insane  soldier ^ Page  421 


398  desertion:  synopsis. 

XVI.  REMOVAL  OF  CHARGE  OF  DESERTION— Continued. 

C.  Because  Erroneously  Made — Continued. 

3.  Procedure  in  removing  charge. 

4.  Soldier  on  furlough  dropped  as  deserter  due  to  failure  of  mails. 

5.  Soldier  on  pass  injured  and  put  in  hospital. 

6.  Soldier  furloughed  by  mistake. 

D.  Charge  Removed  Under  Special  Act  op  Congress. 

1.  Act  of  March  2,  1899. 

a.  Charge  that  was  disposed  of  when  law  passed  can  not  be 

removed. 

b.  When  disposed  of  since  can  not  be  removed Page  422 

c.  Service  must  have  been  honest  and  faithful. 

d.  Charges  that  can  be  removed  are  not  limited  to  those  made 

before  May  1,  1865. 

e.  After  desertion,  enlistment  in  Nav^'-  can  not  be  held  to  be  a 

gratuity. 

f .  Not  removed  if  deserted  while  under  charges Page  423 

g.  An  enrolled  man  did  not  meet  his  draft  but  enlisted  else- 

where as  a  volunteer — not  a  deserter. 

2.  Act  of  May  17,  1886. 

a.  Purpose  of  act  to  change  status  from  that  of  deserter  to  that 
of  soldier  honorably  discharged. 

E.  Restoration  to  Duty  Without  Trial  Dc:iiS  Not  Operate  as  an 

Acquittal  to  Remove  Charge. 

F.  Finding  of  Not  Guilty  by  an  Illegal  Regimental  Court-Martial 

Does  Not  Remove  Charge  of  Desertion. 
XVII.  DESERTER'S  RELEASE. 

A.  Intended  for  Men  in  Whose  Favor  One  Hundred  and  Third 

Article  of  War  Has  Run. 

1.  After  return  to  military  control  One  Hundred  and  Third  Article 
does  not  run Page  424 

B.  A. Pardoned  Dishonorably  Discharged  Soldier  Not  a  Subject  for 

Release. 

C.  Designed  for  Persons  in  Service. 

D.  Not  Intended  for  Issue  to  Deceased  Persons. 

E.  Not  Intended  as  a  Discharge  from  the  Army. 

F.  Not  Given  for  Desertion  in  Time  of  War. 

G.  Must  be  Prepared  so  as  to  Show  That  it  is  Not  a  Discharge. 
H.  Procedure  to  Obtain Page  425 

XVIII.  DESERTION  IN  TIME  OF  WAR. 

A.  Desertion  Before  Exchange  of  Ratifications. 

B.  During  War  With  Foreign  Enemy,  Time  of  War  at  Home. 
XIX.  RESPONSIBILITY  FOR  GOVERNMENT  PROPERTY. 

A.  Acquittal  of  Desertion  Does  Not  Relieve  from  Responsibility. 
XX.  OFFICER. 

A.  An  Officer  Absconded  to  Canada. 

B.  An  Officer  Went  to  Place  Far  from  the  Place  He  Was  Author- 

ized to  Visit. 

C.  Effects  of  Deserted  Officer. 

D.  No  Court  Can  Review  Action  of  President  in  Dropping  Officer 

AS  A  Deserter. 

E.  After  the  President  Has  Dropped  an  Officer  the  Statute  op 

Limitations  Does  Not  Run , Page  426 

F.  Not  Entitled  to  Trla.l  Under  Section  1230,  Revised  Statutes. 


DESEETION   I.  399 

TTl,  CIVIL  EMPLOYEES.     (See  Civil  Employees.) 

A.  Can  Not  be  Deserters. 
mi.  RUNNING  AWAY  OF  RECRUIT. 

A.  Liable  for  Embezzlement  in  Violation  op  Section  5439,  R.  S. 

I.  The  offense  of  desertion  is  committed  by  an  officer  or  enlisted 
man  who  absents  himself  without  authority  from  the  military  serv- 
ice with  the  intent  not  to  return  thereto.^  The  offense  becomes 
complete  when  the  intent  not  to  return  has  been  fully  formed,  and 
the  officer  or  enlisted  man  has  committed  an  overt  act  looking  toward 
his  separation  from  the  military  service.  C.  15257,  May  9,  1910; 
9787,  Feb,  7,  1901. 

I.  A.  Both  elements  of  desertion — i.  e.,  the /ac^  of  the  unauthorized 
voluntary  withdrawal  and  the  intent  permanently  to  abandon  the 
service — must  be  proved.  The  intent  may  be  inferred,  not  from  the 
fact  of  absenting  alone,  but  from  the  circumstances  attending  this 
fact,  and  the  duration  of  the  absence.  An  unauthorized  absence  of 
a  few  hours  may  be  sufficient  evidence  of  such  intent  and  thus  proof 
of  a  desertion  ^  {C.  10562,  Mar.  13,  1902),  while  an  absence  for  a  con- 
siderable interval,  unattended  by  circumstances  indicating  a  pur- 
pose to  separate  premanently  from  the  service,  or  to  dissolve  the 
pending  engagement  of  the  soldier,  may  be  proof  simply  of  absence 
without  leave.  Each  case  must  be  governed  by  its  own  peculiar 
facts,  and  no  general  rule  on  the  subject  can  be  laid  down.  R.  8,  109, 
Mar.  14,  1864;  26,  346,  Jan.  6,  1868;  33,  123,  July  1,  1872. 

I  B.  Desertion  does  not  necessarily  include  the  offense  of  absence 
from  station.  Thus  lield  that  if  at  one  of  our  large  stations  an  enlisted 
man  should  leave  his  company  and  barracks  and  proceed  to  another 
barracks  at  the  same  station  where  men  are  being  enlisted  for  foreign 
service,  and  there  enlist  himself  without  a  discharge  from  his  com- 

gany,  he  must  be  held  to  be  a  deserter,  even  though  technically  he 
as  not  committed  the  offense  of  absence  from  his  post  or  station 
without  leave.     C.  24722,  Apr.  5,  1909. 

I  C  1 .  The  nature  of  the  offense  of  desertion  is  well  illustrated  in 
cases  of  escape.  The  mere  fact  that  a  soldier,  while  awaiting  trial  or 
sentence  or  while  under  sentence  (and  not  discharged  from  the  serv- 
ice) escapes  from  his  confinement  is  not  proof  of  a  desertion  on  his 
part,  since  he  may  have  had  in  view  some  minor  object,  such  as  the 
procuring  of  liquor,  etc.^  But  an  escape,  followed  by  a  considerable 
absence,  especially  if  the  soldier  is  obliged  to  be  forcibly  apprehended, 
is  strong  presumptive  evidence  of  the  existence  of  the  intent  necessary 
to  constitute  the  crime.  So,  though  the  absence  involved  may  be  com- 
paratively brief,  the  circumstances  accompanying  the  escape  or 
attending  the  apprehension,  may  be  such  as  to  justify  an  equally 

*  See  Bee.  546,  Digest  of  Decisions  of  2d  Comp.,  vol.  3. 

^  See  cir.  66,  War  Department,  series  1908. 

^  See  a  case  of  this  nature  (an  escaping  in  order  to  obtain  liquor)  in  G.  O.  32,  Dept. 
of  the  South,  1873;  and  compare  the  case  in  G.  0.  87,  id.,  1872,  in  which  a  con- 
viction of  desertion  is  disapproved  on  the  ground  that  the  evidence  showed  "merely 
an  escape  from  the  guardhouse  without  intention  to  leave  the  service  or  the  vicinity 
of  the  post."  And  see  in  this  connection  Samuel,  324,  where  to  be  "discovered,'^' 
after  a  short  absence,  "in  the  pursuit  of  some  accidental  temporary  object,  though 
perhaps  otherwise  illicit,"  is  instanced  as  not  indicating  an  intent  by  the  offender 
'to  sever  himself  from  the  service." 


400  DESERTION   I  C  2. 

strong  presumption.  An  escape,  with  intent  not  only  to  evade  con- 
finement, but  to  quit  the  service,  while  the  party  is  held  awaiting 
proceedings  for  desertion,  is  of  course  a  second  or  additional  deser- 
tion. R.  31,  282,  Apr.,  1871;  35,  626,  Oct,  1874;  ^7,  291,  597,  Jan. 
and  June,  1876;  38,  43,  Apr.,  1876;  41,  119,  Feh.,  1878;  53,  35, 
Sept.,  1886.  Of  course  an  escape  from  legal  military  custody  is 
always  an  offense,  and  the  soldier  who  has  escaped  may  (where  his 
act  does  not  amount  to  desertion)  be  brought  to  trial  for  such  offense 
as  '^  conduct  to  the  prejudice  of  good  order  and  military  discipline. '* 
R.  10,  574,  Nov.,  1864'  It  need  hardly  be  added  that  an  escape  from 
imprisonment  by  a  military  convict  can  not  constitute  a  desertion,  or 
other  offense,  the  party  at  the  time  of  escape  being  no  longer  in  the 
mihtary  service.^   R.  35,  626,  Oct.,  1874;  C.  16395,  May  26,  1904. 

Undoubtedly,  in  the  great  majority  of  cases,  escape  is  desertion. ^ 
C.  12785,  Jan.  27,  1902. 

I  C  2.  Enlisting  in  the  enemy's  army  by  a  prisoner  of  war  is  deser- 
tion unless  submitted  to  as  a  last  resort  to  save  life  or  to  escape  ex- 
treme suffering  or  to  obtain  freedom.  Thus  Jield  in  a  case  of  a  United 
States  soldier  who  entered  the  service  of  the  enemy  from  Anderson- 
ville,  Ga.,  in  the  Civil  War,  that  the  burden  of  proof  was  on  him  to 
establish  that  he  resorted  to  such  enlistment  with  design  of  effecting 
his  escape  and  rejoining  his  own  army;  and  that  his  abandoning  such 
enlistment  and  coming  within  our  lines  at  the  first  opportunity  was 
material  evidence  of  such  a  design.  P.  4^,  144,  Oct.,  1890;  51,  100, 
Dec,  1891. 

I  D.  A  soldier  during  the  Civil  War  permitted  himself  to  be 
drummed  out  of  the  service  pursuant  to  the  illegal  sentence  of  a  court 
composed  of  enlisted  men.  Held  that  he  was  technically  a  deserter. 
C.  2213,   May  9,  1896;  16113,  Apr.  I4,  1904. 

1  E.  Held  that  misbehavior  before  the  enemy  may  be  evidence  of 
desertion,  but  that  it  is  not  an  essential  element  of  it.  C.  9787,  Feh. 
8,  1901. 

II  A.  A  deserter  at  large  obtained  employment  in  the  Quarter- 
master's Department  as  a  teamster  by  representing  himself  to  be  a 
citizen.  It  was  discovered  that  he  was  a  deserter  at  large.  Held 
that  he  was  not  competent  to  enter  into  contractual  relations  of  any 
sort  with  the  United  States,  and  this  is  especially  true  when  his  under- 
taking was  in  direct  conflict  with  the  terms  of  his  enlistment  contract, 
which  was  in  full  force  at  the  date  of  his  employment,  and  that  as  his 
employment  as  a  teamster  was  obtained  by  fraudulent  concealment 
of  the  fact  that  he  was  a  deserter  no  benefit  can  accrue  under  his 
employment  and  he  is  not  entitled  to  pay  for  services  rendered  in  that 
capacity.     C.  I4OI7,  Jan.  22,  1903. 

III  A.  Peace  officers  generally  are  authorized  by  law  to  arrest 
deserters  and  to  restore  them  to  the  proper  mihtary  authority.  Held 
that  if  in  making  such  arrest  resistance  is  encountered,  the  oflScer  has 
the  right  to  use  such  force  as  is  necessary  to  overcome  such  resistance, 
but  no  more.     C.  23930,  Oct.  3,  1910. 

^  But  see  now  sec,  5  of  the  summary  court  act,  approved  June  18,  1898  (30  Stat., 
484),  which  subjects  general  prisoners  to  punishment  for  violating  the  Articles  of  War. 

2  See  cases  published  in  G.  C.  M.  0. 14,  IT.  Q.  A.,  1880;  do.  40,  44,  id.,  1882;  do.  31, 
id.,  1884;  do.  279,  Dept.  of  the  East,  1885;  do.  11,  Dept.  of  the  Mo.,  1885;  do.  18, 
Dept.  of  Cal.,  1877;  do.  125,  Dept.  of  the  Dakota,  1882;  do.  54,  id.,  1885;  do.  5,  Dept, 
of  the  Platte,  1873;  do.  35,  Dept.  of  Texas,  1875;  do.  54.  id..  1885. 


DESERTION  III  B.  401 

< 

III  B.  On  the  question  of  whether  or  not  a  forcible  entry  of  a 
dweUing  can  be  made  by  a  peace  officer  to  arrest  a  deserter,  lietd  that 
any  entry  which  would  be  warranted  by  the  law  of  a  State  would  in  all 
probabihty  be  sustained  by  the  Federal  courts.  C.  23930,  Oct.  3, 1908; 
395,  Oct.,  1894. 

Ill  C.  Certain  peace  officers  designated  by  the  statutes  are  empow- 
ered to  make  arrests  in  their  own  jurisdictions.  Held  that  once  the 
arrest  is  accomplished,  all  Question  of  locality  in  so  far  as  the  delivery 
of  the  prisoner  is  concerned  falls — and  the  prisoner  may  be  delivered 
at  any  designated  point  regardless  of  State  or  other  jurisdictional 
Unes.*     a  23930,  Oct.  9,  1908. 

Ill  D.  In  view  of  the  requirements  of  section  2  of  the  act  of  June 
18,  1898  (30  Stat.  484),  authorizing  civil  officers  to  arrest  deserters, 
etc.,  lield  that  the  officer  making  the  arrest,  in  the  event  of  a  writ  of 
habeas  corpus  being  issued  by  a  State  court,  should  make  return  to 
the  court  justifying  his  custody  in  the  operation  of  that  act.  C. 
17327,  Mays,  1906;  23930,  Oct.  9,  1908. 

Ill  E.  Where  a  civil  official,  having  made  an  arrest  of  a  deserter, 
concealed  him  from  the  military  authorities  and  afterwards  permitted 
or  connived  at  his  escape,  recoinmended  that  the  Attorney  General  be 
requested  to  instruct  the  proper  United  States  district  attorney  to 
initiate  proceedings  under  section  5455,  R.  S.  R.  J^l,  ^81,  Bee,  1878; 
C.  561,  Oct.  26,  1894. 

Ill  F.  The  statute  conferring  authority  upon  civil  officers  to  appre- 
hend and  dehver  deserters  should  not  be  construed  as  taking  away 
the  authority  for  their  apprehension  by  a  citizen  under  an  order  or 
direction  of  a  military  officer,^  but  the  legislation  should  be  treated  as 
providing  an  additional  means  of  securing  the  arrest  of  deserters  by 
conferring  authority  upon  civil  officers  to  apprehend  them  without 
mihtary  orders — leaving  the  former  method  still  legal.  Under  this 
view,  the  arrest  of  a  deserter  by  a  citizen  is  legal  if  made  pursuant  to 
the  order  or  request  of  proper  authority,  but  not  otherwise.  C. 
17327-A,  July  20,  1909. 

III  G.  The  right  of  the  United  States  to  arrest  and  bring  to  trial  a 
deserter  is  paramount  to  any  right  of  control  over  him  by  a  parent  on 
the  ground  of  his  minority .^  P.  58,  287,  Mar.,  1893;  C.  1967,  Jan., 
1896;  2872,  Jan.  14,  1897;  4167,  May  23,  1898;  4U4,  J'u^ne  2,  1898; 
12296,  Mar.  25,  1902;  19266,  Feb.  16,  1906;  2561,  Aug.  28,  1906; 
2870,  Jan.  14,^  1907. 

IV  A.'  A  soldier  who  had  been  extradited  from  Mexico  solely  on  a 
charge  of  theft,  held  not  liable  to  trial  as  a  deserter;  the  principle 
that  a  person  extradited  on  account  of  a  certain  alleged  offense  is 
exempt  from  trial  on  any  other  criminal  offense  *  being  deemed  appli- 
cable where  the  other  offense  is  a  military  one.  P.  37,  4^5,  and  38, 
167,  Jan.,  1890;  49,  62,  Sept.,  1891;  C.  5361,  Oct.  2,  1911. 

IV  B.  A  deserter  from  our  Army  can  not,  in  the  absence  of  any 
international  convention  allowing  it,  legally  be  arrested  as  such  in 
Mexico  and  brought  thence  into  Texas.     P.  39,  4^8,  Mar.,  1890. 

^  See  Cir.  87,  War  Department,  Oct.  23,  1908,  which  publishes  the  above  opinion. 
2  See  Kurtz  v.  Moffitt  (115  U.  S.,  505). 

'  In  re  Cosenow,  37  Fed.  Rep.,  668;  In  re  Kaufman,  41  id.,  876.    And  compare  In  re 
Grimley,  137  U.  S.,  147,  and  In  re  Morrissey,  id.,  157. 
*  U.  S.  V.  Rauscher,  119  U.  S.,  407. 

31106°— 12 26 


402  DESERTION  IV  0. 

IV  C.  The  existing  extradition  treaties  with  Great  Britain  con- 
tain no  provision  for  the  extradition  of  a  deserter  or  for  the  surrender 
of  an  escaped  convict.  P.  S3,  446,  May,  1892;  G,  15491,  Mar,  30, 
1909. 

V  A.  The  United  States  has  entered  into  an  understanding  with 
the  civil  authorites  of  the  country  at  large  by  which,  if  the  latter 
apprehend  a  deserter  and  surrender  him  at  a  military  post,  they  will 
be  rewarded.^  This  law  is  not  coupled  with  the  requirement  that 
the  reward  shajl  be  contingent  upon  the  conviction  before  a  court- 
martial  of  the  soldier  surrendered,  nor  upon  any  other  contingency, 
but  simply  demands  that  where  there  is  a  good,  honest  belief  on  the 
part  of  the  person  making  the  arrest,  and  this  belief  is  founded  on 
sufficient  evidence  to  warrant  the  arrest  being  made,  there  should  be 
no  quibbling  as  to  technical  reasons  for  the  failure  on  the  part  of  the 
United  States  to  meet  its  obligation.  With  this  should  not  be  con- 
founded the  question  of  whether  the  $50  paid  as  a  reward  shall  be 
charged  to  the  United  States  or  charged  to  the  deserter.  C.  17327- A, 
Aug.  16,  1909,  Oct.  16,  1910,  Oct.  18,  1910,  and  Oct.  31,  1910. 

V  A  1 .  The  clause  in  successive  acts  of  appropriation  for  the  sup- 
port of  the  Army  authorizing  the  payment  of  rewards  to  civil  officers 
or  citizens  does  not  nullify  the  requirements  of  permanent  legislation 
as  found  in  section  6,  act  of  June  18,  1898  (30  Stat.  484),  and  in  the 
act  of  June  16,  1890  (26  Stat.  157).  ^  0.  17327,  Jan.  2,  1906. 

V  A  1  a.  Held,  that  the  statutes  which  confer  authority  upon  civil 
officers  to  apprehend  and  deliver  deserters  should  not  be  construed  as 
taking  away  the  authority  for  their  apprehension  under  an  order  or 
direction  of  a  military  officer,  and  that  these  statutes  should  be 
treated  as  providing  additional  means  of  securing  the  arrest  of 
deserters  by  conferring  authority  upon  civil  officers  to  apprehend  them 
without  military  order,  leaving  the  former  method  still  legal.^  G. 
17327,  Jan.  7,  1905;  18677,  Nov.  7,  1905. 

V  B.  The  law  and  the  regulations  evidently  contemplate  the  appre- 
hension and  deHvery  to  the  military  authorities  of  deserters  who  are 
at  large,  viz,  are  fugitives  from  military  custody.  G.  16201,  Apr,  26, 
1904;  1^^^'^,  Sept.  21,  1908. 

^  The  laws  under  which  the  reward  is  paid  are  as  follows:  Sec.  3,  act  of  June  16, 
1890  (26  Stat.  158):  "That  the  United  States  marshals  and  their  deputies,  sheriffs,  and 
the  deputies,  constables,  and  police  officers  of  towns  and  cities  are  hereby  authorized 
to  apprehend,  arrest,  and  receive  the  surrender  of  any  deserter  from  the  Army  for  the 
purpose  of  delivering  him  to  any  person  in  the  military  service  authorized  to  receive 
him."  And  sec.  2,  act  of  Oct.  1,  1890  (26  Stat.  648):  **That  it  shall  be  lawful  for  any 
civil  officer  having  authority  under  the  laws  of  the  United  States  or  of  any  State,  Ter- 
ritory, or  District,  to  arrest  offenders,  to  summarily  arrest  a  deserter  from  the  military 
service  of  the  United  States  and  deliver  him  into  the  custody  of  the  military  authority 
of  the  General  Government."  Sec.  6,  act  of  June  18,  1898  (30  Stat.  484):  "That  it 
shall  be  lawful  for  any  civil  officer  having  authority  under  the  laws  of  the  United 
States,  or  of  any  State,  Territory,  or  District,  to  arrest  offenders,  to  summarily  arrest 
a  deserter  from  the  military  service  of  the  United  States  and  deliver  him  into  the  cus- 
tody of  the  military  authority  of  the  General  Government. "  And  the  item  that  runs 
in  the  annual  appropriation  act  reads  as  follows:  *  *  *  "for  the  apprehension, 
securing,  and  delivering  of  deserters,  including  escaped  military  prisoners,  and  the 
expenses  incident  to  their  pursuit,  and  no  greater  sum  than  fifty  dollars  for  each  de- 
serter or  escaped  military  prisoner  shall,  in  the  discretion  of  the  Secretary  of  War,  be 
paid  to  any  civil  officer  or  citizen  for  such  services  and  expenses;  *  *  *  Act  of 
Mar.  3,  1911  (36  Stat.  1048). 

2  See  acts  of  June  16,  1890  (26  Stat.  157),  and  June  18,  1898  (30  Stat.  484),  and 
Apr.  23,  1904  (33  Stat.  269). 


DESERTION   V  B   1.  403 

V  B  1.  Held  that  as  the  word  ' '  desertere "  as  used  in  the  appro- 
priation act  wliich  makes  provision  for  the  apprehension  and  dehvery 
of  deserters  has  been  construed  to  include  sokiiers  charged  with 
desertion,  that  the  word  is  not  hmited  to  soldiers  who  may  subse- 
quently be  convicted  of  that  offense,  and  that  the  reward  can  legally 
be  paid  for  the  apprehension  and  delivery  of  the  solcher  charged  with 
desertion,  although  he  may  subsequently  be  discharged  without  trial. 
a  8273,  May  24,  1900;  11025,  Sept.  4,  1901;  11239,  Sept.  20,  1901; 
15284,  Sept.  24,  1903;  17327,  Sept.  29,  1911. 

V  B  2.  A  reward  may  legally  be  paid  either  where  the  soldier  has 
been  charged  with  desertion,  or,  though  not  charged  with  desertion, 
it  can  be  determined  as  an  administrative  question  that  the  soldier 
was  a  deserter  in  fact.  Wliere  a  soldier  has  not  been  charged  with 
desertion,  a  person  apprehending  him  as  such,  in  order  to  claim  the 
reward,  must  be  able  to  show  that  he  was  a  deserter  in  f  act.^  0. 1 7327, 
Apr.  29,  1907. 

V  B  3.  A  police  officer  arrested  and  delivered  a  man  who  was 
charged  with  desertion.  Held,  that  the  reward  was  properly  paid 
to  him  even  though  subsequently  the  man  was  convicted  of  absence 
without  leave  only.  G.  10190,  Apr.  10,  1901;  14557,  Apr.  29,  1903; 
18892,  Dec.  5,  1905;  17327,  Feb.  23,  1906,  Nov.  6,  1907,  arid  July  13, 
1908. 

V  B  4.  When  a  reward  is  offered  for  a  soldier  who  is  claimed  to  be 
absent  in  desertion  and  who  is  subsequently  apprehended  and  tried 
for  absence  without  leave;  held,  that  the  officer  effecting  the  appre- 
hension is  entitled  to  the  payment  of  the  reward  as,  for  purposes  of 
apprehension,  the  absentee  was  a  deserter  in  fact.  G.  12986,  July  21, 
1902;  5432,  Dec.  5,  1898. 

V  B  5.  A  deserter  was  arrested  and  delivered.  Held,  that  the 
reward  was  properly  paid  even  though  the  charge  was  subsequently 
set  aside  as  having  been  erroneously  made.     G.  17327,  Nov.  28,  1908. 

V  B  6.  Held,  that  in  order  to  entitle  an  officer  to  the  reward  it  is 
not  necessary  that  the  fact  of  desertion  should  be  found  by  a  court- 
martial,  but  that  it  is  sufficient  if  the  Secretary  of  War,  on  the  facts 
presented,  decides  that  the  soldier  apprehended  and  delivered  was 
actually  a  deserter.  This  is  a  question  of  civil  liability  and  a  court- 
martial  is  organized  to  enforce  military  discipline  and.  not  to  deter- 
mine such  questions,  but  its  verdict  may  be  made  the  basis  of  a 
determination  of  such  questions  by  the  department.  G.  11285, 
Sept.  25, 1901,  and  Mar.  30,  1903;  11510,  Nov.  I4, 1901;  18524,  Sept. 
8,  1905;  17327  B,  Jan.  13,  1911. 

V  B  7.  The  fact  that  a  deserter  was  discharged  after  apprehension 
and  delivery  on  habeas  corpus  proceedings  on  the  ground  of  minority 
at  enlistment,  is  not  ground  for  refusal  of  payment  of  reward  for  his 
apprehension.  G.  3717,  Dec.  8,  1897;  13908,  Jan.  15,  1903;  19635, 
May  3,  1906. 

V  B  8  a.  Claim  was  made  for  reward  for  the  apprehension  and 
delivery  to  a  recruiting  officer  of  a  deserter.^  Held,  that  while  a 
subordinate  officer  would  not  be  authorized  to  pay  the  reward  unless 

kdeUvery  was  made  as  required  by  the  regulation,  the  Secretary  of 
War  could  legally  waive  strict  compliance  therewith,  as  the  act  of 
appropriation  does  not  specify  the  place  of  delivery,  and  recommended 
1  VIComp.  Dec,  743. 


404  DESERTION  V  B  8  b. 

that  the  authorized  reward  be  paid  less  the  expense  incurred  by  the 
United  States  in  sending  the  deserter  to  the  nearest  military  post, 
a  17327,  June  10,  1907,  Oct.  29,  1907,  Feb.  21,  1908,  July  28,  1908, 
Dec.  15,  1908,  and  Feb.  20,  1909. 

V  B  8  b.  Held  that  where  a  deserter  was  delivered  to  a  recruiting 
officer  who,  on  erroneous  information,  released  him,  the  person  making 
the  dehvery  was  none  the  less  entitled  to  the  reward,  if  the  dehvery 
was  made  in  accordance  with  the  regulations.     G.  1 7327,  Feb.  25, 1907. 

V  B  9.  Where  a  recruiting  officer  was  informed  by  the  deserter's 
company  commander  of  the  place  where  the  deserter  could  be  found, 
and  employed  a  policeman  to  go  with  him  to  make  the  arrest,  Tield, 
that  as  the  preliminary  work  of  locating  the  deserter  was  done  by  the 
military  authorities,  and  the  oiAj  part  performed  by  the  claimant 
was  the  actual  arrest,  confinement  in  the  city,  and  subsequent  delivery 
to  a  guard  sent  from  the  military  post,  the  policeman  was  entitled  to 
a  part  of  the  reward  only,  to  be  determined  under  the  law  and  regu- 
lation, by  the  Secretary  of  War;  and  that  $25  would  be  ample  to 
cover  the  portion  of  the  services  performed  by  the  claimant  including 
his  expenses.!  C.  17327,  Jan.  20, 1908,  and  Feb.  18, 1908,  and  May  1, 
1908. 

V  B  10.  Where  a  deserter  was  not  arrested  by,  but  surrendered 
himseK  to,  the  civil  official,  who  in  good  faith  took  him  into  custody 
and  securely  held  and  duly  deHvered  him,  Tield  that  the  reward  was 
properly  payable.^  R.  52,  293,  June,  1887;  P.  58, 134,  Feb.,  1893;  C. 
1290,  Apr.23, 1895;  9196,  Oct. 30, 1900;  16030,  Mar.  16,  1904;  i^H^, 
Apr.  1,  1904;  1H09,  Aug.  11,  1905;  18727,  Oct.  17,  1905;  17327, 
Nov.  28,  1908,  and  Jan.  27,  1910. 

V  B  1 1 .  Held  that  a  member  of  the  Indian  police,  established 
under  the  regulations  of  the  Indian  Office,  was  a  civil  officer  having 
authority  to  arrest  offenders,  and  was  entitled  to  the  reward  for  the 
arrest  of  a  deserter.^     C.  346,  Oct.  4,  1894. 

V  B  12.  An  immigration  inspector  is  vested,  by  the  act  of  May  6, 
1882  (22  Stat.,  58),  with  authority  to  '^ arrest  offenders,"  within  the 
meaning  of  section  6  of  the  act  of  June  18,  1898  (30  Stat.  484).  Held, 
in  a  particular  case,  that  such  an  inspector  was  entitled  to  receive  a 
reward  for  the  delivery  of  a  deserter.     0.  17327,  Jan.  2,  1906. 

V  B  13.  A  constable  notified  The  Adjutant  General  of  the  where- 
abouts of  a  deserter.  The  Adjutant  General  advised  the  constable 
that  delivery  of  the  deserter  at  a  designated  place  would  be  accepted, 
and  that  a  detachment  would  be  sent  to  the  place  for  the  purpose  of 
receiving  the  deserter.  The  constable  arrested  the  man  and  held  him 
in  custody  at  the  designated  place.  The  sheriff,  however,  acting  on 
the  advice  of  the  attorney  of  the  Commonwealth,  released  the  deserter, 
and,  as  a  result,  delivery  could  not  be  made  when  the  detachment 
arrived.  Held  that  as  the  constable  had  done  all  that  was  required  of 
him,  the  subsequent  release  of  the  deserter  by  the  unlawful  act  of  the 
sheriff  should  not  be  allowed  to  deprive  the  constable  of  his  right  to 
the  reward,  and  that  he  was  entitled  to  the  reward.  C.  561,  Mar.  6, 
1911. 

^  In  this  case  the  Assistant  Comptroller  held  that  the  payment  of  the  account  was 
authorized. 

2  Circ.  No.  1,  A.  G.  O.,  series  1886. 

3  See  Circ.  12,  A.  G.  O.,  1894,  revoking  par.  1,  Circ.  20  of  1893, 


r 


DESERTION   V  B   U   a.  405 

V  B  14  a.  Held  that  prior  to  June  16,  1890,  a  police  officer  or  pri- 
vate citizen  had  no  authority  as  such  to  arrest  deserters  without  an 
order  or  request  of  a  military  officer,*  but  that  the  acts  of  June  16, 
1890  (26  Stat.  157),  and  June  18,  1898  (30  Stat.  484),  conferring  on 
officers  authority  to  arrest  deserters,  should  not  be  regarded  as  taking 
away  the  right  of  a  civilian  or  citizen  to  arrest  a  deserter  pursuant  to 
the  order  or  request  of  a  miUtary  officer.^  Held  further  that  the 
reward  could  legally  be  paid  to  a  citizen  6v  civilian  making  an  arrest 
under  such  order  or  request.  R.  33,  4I4,  Oct.  16,  1872;  P.  27,  Sept 
5,  1888;  C.  12376,  Apr.  12,  1902;  17327,  Jan.,  7  1905,  Aug.  2,  1905, 
Sept.  6,  1905,  Nov.  24, 1905,  and  July  20, 1909;  17327 A,  Dec.  4, 1908. 

V  B  14  (a)  (1).  The  reward  for  the  apprehension  of  a  deserter  is 
payable  to  any  civil  officer  or  citizen  who  delivers  such  deserter  into 
military  custody,  independently  of  the  nationality  of  the  person 
making  the  apprehension  and  delivery.     C.  17327- A,  Dec.  4,  1908. 

V  B  14  b.  Held  that  the  term  '* citizen"  as  used  in  the  appropria- 
tion act  which  carries  a  reward  for  the  apprehension  of  deserters  is 
synonymous  with  the  word  ''civilian"  and  is  intended  to  describe  a 
person  who  is  not  in  the  military  service,  and  that  the  reward  could 
therefore  legally  be  paid  to  an  Indian  making  such  arrest  pursuant 
to  request  of  militarv  authority.     C.  17327,  Oct.  23,  1905. 

V  B  14  c.  Similarly  held  that  a  reward  could  be  paid  to  a  Canadian 
detective.     C.  17327,  Dec.  4,  1908. 

V  B  14  d.  As  the  current  appropriation  act  provides  "Reward 
shall  be  paid  to  any  officer  or  citizen,  held  that,  as  citizen  is  here  used 
synonymously  with  civilian,  where  there  is  no  fraud  or  collusion  it 
may  be  paid  to  a  scavenger  at  a  military  post,  notwithstanding  the 
fact  that  he  is  there  employed.     C.  17327,  Aug.  29,  1905. 

V  B  15.  An  offer  of  reward  has  been  complied  with  by  the  joint 
efforts  of  several  persons.  Held  that  they  are  jointly  entitled  to  the 
reward.^    R.  20,  Mar.,  1866. 

V  B  15  (a).  A  deserter  was  apprehended  and  delivered  by  two 
men  neither  one  of  whom  performed  the  entire  service  for  which 
alone  the  reward  is  payable.  Held  that  the  check  in  payment  of  the 
reward  should  be  drawn  in  favor  of  both  men  and  the  division  of  the 
reward  left  to  them.  C.  12026,  Feb.  6,  1902;  17538,  Feb.  14,  1905; 
18677,  Oct., 7  and  Nov.  8,  1905. 

V  B  16.  A  deserter  was  placed  in  confinement  and  a  reward  paid 
for  his  apprehension.  Afterwards  he  escaped  from  confinement. 
Held  that  a  reward  could  be  paid  for  his  second  apprehension,  as  it 
was  a  second  desertion.  C.  8654,  July  25,  1900;  14781,  June  10, 
1903. 

V  B  17.  Held  that  a  reward  may  be  paid  for  the  apprehension  and 
delivery  of  an  escaped  general  prisoner.  C.  15891,  Feb.  11,  1904; 
7651,  Feb.  7,  1900. 

V  B  18  a.  A  deserter  at  large  was  also  charged  with  embezzle- 
ment of  a  large  amount  of  Government  funds.  Held  that  the  fact 
that  he  was  a  deserter  and  that  the  statutory  reward  would  be  paid 

^  Kurtz  V.  Moffitt,  115  U.  S.,  505.  See  Hickey  v.  Huse  (56  Me.,  493),  in  which  it 
was  held  that  provost  marshals  had  the  right  to  arrest  deserters  and  that  no  warrant  was 
necessary. 

2  See  Hutchins  v.  Van  Bokkelem  (34  Me.,  126),  in  which  it  was  held  that  a  military 
officer  can  confine  a  deserter  in  a  county  jail,  although  the  jailer  is  under  no  obliga- 
tion to  receive  him. 

*  Cyc.  1751-1756. 


406  DESERTION  V  B  18  b. 

for  his  apprehension  as  such  woukl  not  prechide  the  Secretary  of  War 
from  offering  an  adequate  reward  for  his  apprehension  as  an  embez- 
zler ^  to  be  paid  from  the  appropriation  "Contingencies  of  the  Army."  ^ 
C.  17327,  Aug.  25,  1910. 

V  B  18  b.  The  superintendent  of  mounted  pohce  of  British  Yukon 
Territory  apprehended  a  deserter  from  the  American  Army  and  dehv- 
ered  him  at  Camp  Skagway,  under  pledge  from  the  commanding  officer 
of  that  camp  to  pay  the  costs  in  addition  to  the  prescribed  reward. 
Held  that  upon  approval  by  the  Secretary  of  War  $20  could  be  paid 
from  appropriation  for  ^'Incidental  expenses,  Q.  M.  Department" 
and  the  balance  from  appropriation  ''Contingencies  of  the  Army, 
1904."  3     C.  16578,  July  18,  1904. 

VBl8c.  A  soldier  left  his  post  and  was  subsequently  appre- 
hended and  delivered  to  the  military  authorities  as  a  deserter  by  a  civil 
officer.  It  was  supposed  that  the  soldier  was  a  deserter,  but  upon  his 
return  he  was  adjudged  insane.  Held  that  the  statutory  reward  could 
not  be  legally  paid,  but  advised  that  the  expenses  which  the  officer 
had  incurred  be  paid  him  from  the  appropriation  for  the  contingent 
expenses  of  the  Army;  also  that  a  reasonable  amount  in  addition  be 
allowed  him  for  his  services  and  made  a  part  of  the  expense  of  caring 
for  and  taking  the  man  to  the  asylum.  C.  1^07,  June,  1895;  13776, 
Dec.  9,  1902;  21117,  Feb.  25,  1907. 

V  B  18  d.  Request  was  made  for  the  apprehension  of  a  man  on 
account  of  other  offenses  than  desertion  and  there  is  no  evidence  to 
indicate  that  he  was  a  deserter  in  fact.  Held  that  the  expenses  of  the 
officer  or  citizen  making  the  arrest,  together  with  a  reasonable  com- 
pensation for  his  time,  may  be  paid  from  the  appropriation  '' Con- 
tingencies of  the  Army"  since  the  service  was  actually  rendered  and 
the  expense  incurred  upon  the  request  of  the  military  authorities. 
G.  17327,  Apr.  29,  1907,  Mar.  25  and  Apr.  8,  1908,  Jan.  8,  1909, 
Nov.  23  and  Dec.  10,  1910. 

V  C.  After  a  soldier  had  deserted  the  amount  of  reward  authorized 
by  law  for  the  apprehension  of  deserters  was  changed.  Held  that  the 
reward  authorized  for  his  apprehension  and  delivery  was  the  reward 
authorized  at  the  date  of  his  apprehension.  C.  994,  Feb.  11,  1895; 
1076,  Feb.  28,  1895. 

VC  1.  The  reward  shall  be  in  full  for  all  services  and  expenses, 
a  18677,  Oct,  7, 1905;  17327-A,  Dec.  29, 1908;  17327-B,  May  29,1911. 

V  D  1  a.  The  legal  liability  imposed  upon  the  soldier  by  Army 
Regulations,  to  have  the  amount  of  the  reward  stopped  against  his 
pay,  is  quite  independent  of  the  punishment  which  may  be  imposed 
upon  him  by  sentence  of  court-martial  on  conviction  of  the  desertion. 
Such  stoppage  need  not  be  directed  in  the  sentence;  courts-martial 
indeed  have  sometimes  assumed  to  impose  it,  like  an  ordinary  for- 
feiture of  pay,  but  its  insertion  in  the  sentence  adds  nothing  to  its 
legal  effect.*    R.  12,  326,  Feb.,  1865. 

V  D  1  b.  Where  a  soldier,  for  whose  apprehension  as  a  supposed 
deserter  the  legal  reward  has  been  paid,  is  subsequently  brought^  to 
trial  upon  a  charge  of  desertion  and  is  found  guilty  not  of  desertion 
but  only  of  the  lesser  and  distinct  offense  of  absence  without  leave,  he 

1  See  XVI  Comp.  Dec,  132,  Sept.  1,  1909. 

2  See  XI  Comp.  Dec,  124,  Sept.  3,  1904,  and  XVI  Comp.  Dec,  132,  Sept.  1,  1909. 

3  XI  Comp.  Dec,  124,  dated  Sept.  3,  1904. 
^  See  par.  127,  A.  R.,  ed.  1910. 


DESERTION  V  D  2.  407 

clearly  can  not  legally  be  held  liable  for  the  reward  by  a  stoppage  of 
the  amount  against  his  pay  ^  unless  indeed  the  sentence  of  tlie  court 
expressly  stops  the  amount.^  E.  26, 847,  July,  1868;  27, 255  and  306, 
Oct.,  1868;  31,  468,  June,  1871;  34,  533  and  590,  Nov.,  1873;  42,  315, 
June,  1879;  43,  222,  Feb.,  1880;  49,  150,  Sept.  1891;  C.  6036,  June  3, 
1893;  11708,  July  1,  1902;  12772,  July  3,  1902;  13080,  Aug.  8,  1902. 

V  D  2.  The  right  of  a  ''civil  officer  or  citizen"  to  the  reward  for 
the  apprehension  and  delivery  of  a  soldier  charged  with  desertion 
accrues  when  the  absentee  has  been  delivered  into  proper  military 
custody  and,  where  no  fraud  is  alleged,  no  portion  of  the  sum  so 
paid  can  be  recovered  from  a  bona  fide  payee. 

But  the  original  payment  of  the  reward,  which  is,  in  its  essential 
elements,  a  contractual  undertaking,  and  a  subsequent  stoppage  of 
all  or  part  of  the  expenses  of  apprehension,  etc.,  against  a  soldier  are 
independent  transactions;  the  determination  of  the  stoppage  to  be 
made  having  no  necessary  connection  with  the  payment  of  the  reward 
which,  in  a  majority  of  cases,  is  a  completed  transaction  when  the 
matter  of  stoppage  is  taken  up  with  a  view  to  reimburse  the  United 
States  for  the  expenses  attendant  upon  the  apprehension  of  a  de- 
serter and  his  return,  in  a  proper  case,  to  the  station  of  his  company. 
C.  17327-A,  Mar.  22,  1910. 

V  D  3.  A  soldier  was  tried  for  desertion,  convicted,  and  sen- 
tenced, inter  alia,  to  forfeit  the  cost  of  his  apprehension  and  transpor- 
tation. The  reviewing  authority  did  not  approve  that  part  of  the 
sentence.  Held  that  such  a  provision  should  not  have  been  incorpo- 
rated into  the  sentence,  as  the  obligation  to  pay  the  cost  of  the  appre- 
hension and  transportation  of  a  deserter  does  not  depend  upon  incor- 
poration into  a  sentence  to  give  it  life.^     C.  5743,  Jan.  31,  1899. 

V  D  3  a.  Paragraph  127,  Army  Regulations  1910,  provides  that  "a 
soldier  convicted  by  a  court-martial  of  absence  without  leave  will  be 
charged  with  the  expense  incurred  in  transporting  him  to  his  proper 
station."  Held  that  this  authorizes  a  stoppage  for  transportation  and 
commutation  of  rations  for  himself  and  the  guard  sent  after  him.  C. 
6068,  Mar.,  1899;  6375,  May,  1899;  7180,  Oct.,  1899;  9177,  Oct.,  1900: 
19688,  May  11  and  29, 1906;  17847,  Apr.  19,  1905,  Sept.  2,  1908,  and 
June  7,  1911. 

V  D  3  b.  Where  a  sergeant  was  sent  to  identify  a  deserter,  sup- 
posed to  be  serving  under  an  assumed  name  in  another  organization, 
with  a  view  to  the  latter's  apprehension,  held  that  the  sergeant  was 
not  a  ''witness"  (i.  e.,  at  the  trial)  within  the  meaning  of  paragraph  127, 
Army  Regulations  1910,  and  that  therefore  the  cost  of  his  trans- 
portation was,  under  said  paragraph,  a  proper  charge  against  the 
deserter  as  expenses  paid  for  apprehension.  C.  3556,  Oct.,  1897; 
17330,  Jan.  4,  1905. 

V  D  3  0.  Expenses  incurred  by  enlisted  men  in  the  pursuit  of 
a  particular  deserter,  and  therefore  on  account  of  his  desertion,  may 
properly  be  charged  against  him  under  paragraph  127,  Army  Regula- 
tions 1910,  notwithstanding  the  fact  that  the  person  apprehended  as 
such  deserter  proved  to  be  the  wrong  man.  C.  3185,  May  5,  1897; 
12168,  Mar.  10,  1902;  17330,  Jan.  4,  1905. 

V  D  4.  A  civil  officer  arrested  a  deserter  and  turned  him  over  to 
a  detachment  that  was  sent  in  pursuit  of  him.     Held  that  he  was 

^  This  was  concurred  in  by  the  Attorney  General  in  16  Op.,  474. 
2  See  pars.  127  and  128,  A.  R.,  ed.  1910. 
»  See  par.  127,  A.  R.,  ed.  1910. 


408  DESEETION  V  D  4  a. 

entitled  to  the  reward.  Held,  further,  that  the  expense  of  transporta- 
tion of  the  deserter  from  the  place  of  delivery  to  his  station  or  the 
place  of  trial  is  a  distinct  charge  not  included  in  the  reward^  which 
will  be  set  against  his  pay  upon  conviction  of  desertion.  C.  SJfl5, 
July  29,  1897;  17847,  June  7,  1911. 

V  D  4  a.  The  requirement  of  regulations  (par.  127,  A.  R.  1910), 
that  a  deserter  shall  be  charged  with  the  cost  of  returning  him  to  his 
station,  contemplates  travel  from  the  place  of  apprehension  or  of  de- 
livery to  military  authority  to  his  proper  station,  and  such  journey 
should  be  made  by  the  shortest  usually  traveled  route.  Where  a 
deserter  was  sent  to  a  place  not  by  such  shortest  route,  held  that  the 
cost  of  such  a  journey  is  not  that  contemplated  in  the  regulation,  and 
its  apportionment  should  be  determined  by  the  circumstances  of  the 
case.     C.  17847,  Sept.  2,  1908. 

V  E  1.  Where  a  soldier,  charged  with  desertion,  is  acquitted,  or 
where,  if  convicted,  his  conviction  is  disapproved  by  the  competent 
reviewing  authority,  he  can  not  legally  be  made  liable  for  the  amount 
of  a  reward  paid  or  payable  for  his  arrest  as  a  deserter,  since  in  such 
cases  he  is  not  a  deserter  in  law.  R.  26,  847,  July,  1868;  30,  47, 
Sept.,  1869;  C.  9528,  Jan.  8,  1901;  12002,  Feb.  1,  1902;  17768,  Apr. 
25,  June  7,  1905. 

V  E  2.  A  soldier  was  acquitted  of  the  charge  of  desertion  and  the 
acquittal  was  disapproved  by  the  reviewing  authority.  Held,  that 
he  can  not  legally  be  made  liable  for  the  amount  of  a  reward  payable 
for  his  arrest  and  delivery,  since  in  such  cases  he  is  not  a  deserter  in 
law.     P.  86,  259,  Nov.,  1889;  0.  17768,  Apr.  25  and  June  7,  1905. 

V  E  3.  A  deserter  is  not  chargeable  with  the  expenses  of  transpor- 
tation of  himself  and  guard  ^  if  his  conviction  has  been  duly  disap- 
proved; such  disapproval  being  tantamount  to  an  acquittal.^  R.  50, 
105,  Mar.,  1886;  G.  2121,  Mar.,  1896;  9540,  Jan.  8,  1901;  12002, 
Feb.  1,  1902;  12168,  Mar.  10,  1902;  12875,  Apr.  28,  1902;  17885, 
Jan.  4,  1905;  17768,  Apr.  1  and  25,  and  June  17,  1905. 

V  E  4.  The  expense  of  the  transjportation  of  a  convicted  deserter, 
incurred  in  the  course  of  the  execution  of  his  sentence,  is  not  charge- 
able against  the  deserter  under  par.  127,  A.  R.,  1910,  but  must  be 
borne  by  the  United  States.     P.  52,  21,  Feb.,  1892. 

V  E  5.  The  stoppage  against  the  pay  of  a  soldier  of  the  amount 
due  as  a  reward  for  ms  apprehension  is  authorized  by  regulations 
{a)  upon  conviction  of  desertion  (par.  125  of  1905,  126  of  1908,  127 
of  1910);  (Jb)  upon  restoration  to  duty  without  trial,  the  desertion 
being  admitted  (pars.  125-130  of  1905,  126-130  of  1908,  127  to  131  of 
1910);  and  (c)  upon  being  brought  to  trial  for  desertion  and  con- 
victed of  absence  without  leave,  if  the  sentence  direct  the  stoppage 
(par.  126  of  1905,  127  of  1908,  128  of  1910).  Held,  where  the  charge 
was  dropped  as  having  been  erroneously  made,  although  no  formal 
order  was  issued,  that  the  stoppage  should  be  removed  as  unauthor- 
ized by  regulations;  but  that  the  soldier  should  have  been  brought 
to  trial  for  the  desertion,  and  if  convicted  of  absence  without  leave, 
the  facts  would  have  justified  the  court  in  directing  the  stoppage. 
C.  17827,  July  18,  1907. 

V  E  6.  Where  a  soldier  was  arrested  by  a  peace  officer  in  the  mis- 
taken belief  that  he  was  a  deserter,  and  expenses  were  incurred  for 

*  This  is  incorporated  in  par.  127,  A.  R.,  ed.  1910. 

2  See  par.  127,  A.  R.,  ed.  1910. 

3  See  26  Op.  Atty.  Gen.,  239. 


DESERTION   V  F  1.  409 

his  support  without  the  request  of  the  mihtary  authority;  held  that 
such  expenses  can  not  hiwfully  be  stopped  against  the  soldier's  pay. 
C.  19688,  May  29,  1906. 

V  F  1.  Under  the  law  of  contracts  the  offer  of  a  reward  is  an  offer 
of  a  promise  for  an  act  and  becomes  binding  upon  substantial  per- 
formance of  the  act.  Held  that  a  part  performance  only  gives  no 
claim  for  compensation.^     R.  20,  Mar.,  1866;  17327 A,  Dec.  17,  1908. 

V  F  2  a  (1).  No  reward  will  be  paid  where  the  deserter,  at  the  time 
of  arrest,  '4s  serving  in  some  other  branch  of  the  Army,"  etc.^  Thus 
held  that  the  reward  was  not  payable  for  the  arrest  of  a  deserter  from 
the  Cavalry,  who,  subsequent  to  liis  desertion,  had  enlisted  in  an 
Infantry  regiment  in  which  he  was  serving  at  the  date  of  the  arrest. 
P.  34,  298,  Aug.,  1889;  65,  235,  June,  1894.  0.  16201,  Apr.  26, 
1904;  18694,  Oct.  10,  1905;  18428,  Aug.  I4,  1905. 

V  F  2  a  (2).  Held  that  in  the  case  of  information  furnished  without 
request  by  a  detective  agency  to  the  effect  that  a  deserter  from  the 
Army  was  serving  on  board  a  naval  vessel,  no  reward  could  be  paid 
and  no  allowance  could  be  made  to  the  person  furnishing  the  infor- 
mation for  compensation  for  time  consumed  and  expenses  incurred 
in  the  search  for  the  deserter.  C.  17327,  May  6,  1907,  and  June  3, 
1907. 

V  F  2  a  (3) .  A  detective  gave  information  that  a  deserter  from  the 
Army  was  serving  as  an  enlisted  man  in  the 'Marine  Corps,  stating 
that  he  could  not  arrest  him  without  an  order  from  the  Secretary  of 
the  Navy  or  of  War,  and  requesting  that  he  be  paid  the  reward  of  $50. 
Held,  that  the  deserter  had  contracted  a  new  obligation  resulting  in  a 
new  status,  which  is  not  void  but  voidable  only,  and  that  a  civil 
officer  can  not  lawfully  take  him  out  of  such  service  and  deliver  him 
to  be  punished  for  his  previous  desertion.  Held,  further,  that  the 
reward  could  not  be  paid.     C.  18694,  Oct.  11,  1905. 

V  F  3.  Held,  that  the  reward  was  not  due  merely  on  the  apprehen- 
sion of  a  deserter,  but  that  there  must  also  be  a  delivery  as  prescribed 
by  the  regulation  'Ho  an  officer  of  the  Army  at  the  most  convenient 
post  or  recruiting  station."  R.  28,  529,  Apr.,  1869.  C.  15142,  Sept. 
18,  1903;  17327,  Feb.  25,  1907,  Apr.  5,  1909,  and  May  13,  1909. 

V  F  3  a.  A  police  officer  arrested  a  man,  took  him  to  a  recruiting 
station,  and  in  compliance  with  the  recruiting  officer's  request 
started  to  lock  him  in  the  police  station,  but  before  that  was  accom- 
plished the  man  was  released  by  a  State  court  on  a  writ  of  habeas 
corpus  on  the  ground  that  he  was  illegally  held,  having  enlisted  as  a 
minor  without  the  consent  of  his  parents.  Held,  that  the  deserter 
was  not  delivered  to  the  military  authorities  within  the  meaning  of 
the  law  and  regulations,  providing  for  a  reward,  and  that  the  police 
officer  was  not  entitled  to  the  reward.  Held,  further,  that  as  the 
State  court  was  without  jurisdiction  to  release  the  man  there  was  no 
reason  why  he  might  not  be  arrested  again  on  account  of  the  deser- 
tion,    a  13958,  Jan.  15,  1903. 

V  F  4.  A  man  was  apprehended  as  a  suspected  deserter.  It  was 
then  discovered  that  subsequent  to  the  desertion  in  question  he 
had  been  dishonorably  discharged  for  another  and  subsequent  deser- 
tion.    Held,  that  as  the  dishonorable  discharge  operated  as  a  complete 

1  Anson  on  Contracts,  21;  34  Cyc.  1731-43;  Wald's  Pollock  on  Contracts,  3d  edition, 
by  Williston,  pp.  13  and  14. 

2  See  par.  121,  A.  R.,  ed.  1910. 


410  DESERTION  V  F  4  a. 

expulsion  from  the  Army  that  he  was  no  longer  subject  to  military 
jurisdiction  and  therefore  was  not  a  deserter  within  the  meaning  of 
the  statute  and  regulation  and  that  no  reward  could  be  paid  for  his 
apprehension  and  delivery.  P.  63,  415,  February,  1894;  0.  17327, 
Feb.  26,  1907,  July  28,  Oct  6,  and  Nov.  2,  1908. 

V  F  4  a.  A  soldier  was  dishonorably  discharged  on  account  of 
fraudulent  enlistment.  By  mistake,  however,  he  was  not  dropped 
from  the  rolls  of  his  company  upon  which  he  was  carried  as  a  deserter 
at  large,  and  while  so  carried  he  was  apprehended  as  a  deserter. 
Held,  that  although  he  had  been  completely  expelled  from  the 
Army  and  was  a  civilian  and  no  longer  amenable  to  trial  by  general 
court-martial  that  he  should  be  regarded  technically  as  charged 
with  desertion  due  to  the  mistake  on  the  rolls,  and  that  therefore  a 
reward  could  legally  be  paid  for  his  apprehension  and  delivery. 
C.  17327,  Bee.  6,  1908. 

V  F  5.  A  soldier  was  discharged  without  honor  on  account  of 
desertion.  He  was  later  apprehended  for  that  desertion.  Held,  that 
being  a  civilian  he  was  not  a  deserter  and  that  neither  reward  nor 
expenses  incurred  in  his  apprehension  could  be  paid.  C.  17327, 
Nov.  4,  1908;  19542,^  Ayr.  19,  1906. 

V  F  6.  A  deserter  was  furnished  a  deserter's  release.  Later  he  was 
apprehended  for  the  desertion  in  question.  Held,  that  neither  the 
reward  nor  expenses  could  be  paid  for  his  apprehension.  0.  17327, 
Nov.  19,  1908. 

V  F  7.  If,  in  view  of  the  Hmitation  of  the  one  hundred  and  third 
article,  the  soldier  has  a  legal  defense  to  a  prosecution  for  desertion, 
the  reward  is  not  payable  for  his  apprehension.  ^  P.  55, 264,  Sept.,  1892; 
69,  428,  May,  1893;  C.  16172,  Apr.  12,  1904;  16981,  Oct  11,  1904; 
17602,  Feb.  28,  1905. 

V  F  7  a.  After  the  delivery  of  a  deserter  by  a  civil  officer  it  was 
discovered  that  the  statute  of  limitations  had  run.  Held,  that  in 
such  cases,  as  a  matter  of  poHcy,  the  full  reward  should  not  be  paid, 
but  only  a  fair  remuneration  for  the  time  of  the  officer,  together  with 
reimbursement  for  actual  expenses  incurred.^  C.  17602,  Feb.  28, 
1905;  16981,  Oct  12,  1904. 

V  F  7  b.  A  soldier  deserted  in  the  Philippines  and  was  appre- 
hended. At  his  trial  he  maintained  that  since  his  desertion  had 
occurred  subsequent  to  the  ratification  of  the  treaty  of  peace  between 
Spain  and  the  United  States,  the  desertion  was  in  time  of  peace  and 
his  trial  was,  therefore,  barred  by  the  statute  of  limitations.  Held, 
that  in  view  of  the  fact  that  a  condition  of  war  existed  in  the  Philip- 
pines until  July  4,  1902,  the  date  upon  which  the  President  pro- 
claimed peace  in  those  islands,  and  that  the  desertion  occurred  prior 
to  that  date,  the  desertion  was  in  time  of  war,  and,  therefore,  the 
statute  of  limitations  did  not  run  and  the  reward  should  be  paid. 
C.  19734,  May  15,  1906. 

V  F  8.  A  deserter  was  arrested  on  the  soil  of  Mexico  in  violation 
of  the  territorial  rights  of  that  sovereignty.  As  an  act  done  in  vio- 
lation of  law  can  not  be  made  the  basis  of  a  legal  claim,  lield,  that 

1  See  XII  Comp.  Dec.  645. 

2  See  par.  121,  A.  R.,  ed.  1910. 

3  See  par.  121,  A.  R.,  ed.  1910,  which  provides  that  no  reward  shall  be  paid  in  the 
case  of  a  deserter  who  can  claim  exemption  from  punishment  under  the  one  hundred 
and  third  article  of  war. 


DESERTION  V  F  9.  411 

the  reward  could  not  bo  paid.'     R.  55,  412,  Mar.,  1888;  P.  23,  I40, 
Mar.  20,  1888;  37,  495,  Jan.,  1890;  O.  1967,  Jan.,  1896. 

V  F  9.  Held  that  the  reward  should  not  be  paid  where  a  deserter 
was  extradited  from  another  country  on  other  charges  than  deser- 
tion.    P.  37,  495. 

V  F  10  a.  A  deserter  surrendered  himself  to  a  recruiting  officer 
and  was  placed  for  safe-keeping  in  the  custody  of  a  police  officer, 
who,  after  recjuesting  instructions  as  to  the  proper  disposition  of  the 
prisoner,  dehverod  Tiiin  to  nearest  military  post,  incurring  expense 
in  so  doing.  Held  that  he  was  not  entitled  to  the  authorized  reward, 
but  could  legally  be  reimbursed  for  the  expenses  incurred  by  him 
from  the  appropriation  for  the  apprehension  and  delivery  of  deserters. 
C.  17327,  Jan.  21,1909. 

V  F  10  b.  A  deserter  surrendered  to  a  recruiting  officer,  who  fur- 
nished him  transportation  to  a  military  post,  where  he  directed  him 
to  report.  The  deserter  wliile  in  transit  was  arrested.  Held  that  he 
was  not  a  deserter  within  the  meaning  of  the  law  and  regulations,  viz, 
a  fugitive  from  miUtary  justice.  Further  held  that  the  officer  making 
the  arrest  was  not  entitled  to  the  rewa,rd.     C.  17327,  Sept.  21,  1908. 

V  F  11.  Current  acts  of  appropriation  for  the  support  of  the  Army 
provide  for  the  payment  of  a  reward  for  the  apprehension  of  deserters. 
Held  that  the  word  '' citizen"  as  therein  used  is  synonymous  with 
4)he  word  ''civilian"  and  is  intended  to  describe  a  civil  person  as 
distinguished  from  an  officer  or  an  enlisted  man  belonging  to  the 
military  establishment,  and  that  it  was  intended  by  the  use  of  that 
term  to  negative  the  view  that  such  officer  or  enlisted  man  could 
become  entitled  to  the  reward  by  apprehending  a  deserter  and  restor- 
ing him  to  military  custody.     6.  17327-A,  Dec.  4,  1908. 

V  F  12.  An  officer  of  the  customs,  empowered  by  law  to  make 
arrests  of  persons  violating  the  revenue  laws,  but  having  no  such 
general  authority  as  is  ordinarily  possessed  by  peace  officers  ''to 
arrest  offenders"  (according  to  the  terms  of  the  act  of  Oct.  1,  1890, 
26  Stat.,  648,  authorizing  certain  civil  officials  to  arrest  deserters), 
held  not  entitled  to  be  paid  the  regulation  reward  for  the  apprehen- 
sion, etc.,  without  request,  of  a  deserter  from  the  Army.  P.  46,  397 y 
Apr.,  1891. 

V  F  13.  Held  that  a  justice  of  the  peace  of  Idaho  was  not,  by  the 
laws  of  that  State,  a  peace  officer  or  authorized  to  arrest  offenders, 
and  was  therefore  not  within  the  terms  of  the  act  of  October  1,  1890 
(26  Stat.  648),  or  legally  entitled  to  be  paid  the  reward  for  the  arrest 
etc.,  without  request,  of  a  deserter.  Such  justice  may  by  his  warrant 
authorize  and  thus  cause  arrests,  but  actual  arrest  pertains,  under 
the  laws  of  the  State,  to  another  class — sheriffs,  constables,  city 
marshals  and  pohcemen.     P.  57,  91,  Dec,  1892. 

V  F  14.  The  reward  should  be  withheld  where  there  is  evidence  of 
collusion  between  the  alleged  deserter  and  the  civil  official.  Advised 
that  a  suspicion  of  such  collusion  was  properly  entertained  in  a  case 
where  the  soldier,  after  an  absence  of  but  a  few  days,  voluntarily 
surrendered  himself  at  or  near  the  post  of  delivery  to  a  policeman 
who  turned  him  over,  without  expense  or  difficulty,  to  the  miUtary 
authorities  who  did  not  treat  him  as  a  deserter  but  caused  him  to  be 


1  See  Clay  v.  U.  S.  (Dev.  Ct.  Cls.  Rep.,  25). 


412  DESERTION  V  F  15. 

charged,  tried,  and  convicted  as  an  absentee  without  leave  only.     P. 
U,  64,  and  100,  Nov.,  1890;^  C.  15592,  Dec.  10,  1903. 

V  F  15.  Where  the  soldier  when  arrested  had  been  absent  but 
three  days,  and  was  still  in  uniform,  and  had  not  been  reported  or 
dropped  as  a  deserter,  and  his  company  commander  did  not  have 
conclusive  evidence  of  his  intention  not  to  return,  Jield  that  there  was 
not  sufficient  evidence  that  he  was  a  deserter  to  justify  the  payment 
of  the  reward  for  his  arrest  and  dehvery.     P.  53,  227,  Apr.,  1890. 

V  F  16.  Two  men  who  were  suspected  of  being  deserters  from  the 
Navy  were  apprehended  and  delivered  to  the  naval  authorities. 
One  of  them  was  discovered  by  such  authorities  to  be  a  deserter 
from  the  Army  and  was  turned  over  to  a  military  guard  sent  for  him. 
Held  that  the  civil  officers  who  made  the  arrest  and  turned  this 
deserter  over  to  the  naval  authorities  were  not  entitled  to  the  reward, 
as  they  were  ignorant  of  the  fact  that  the  soldier  was  a  deserter  from 
the  Army.i     C.  17327,  Mar.  11,  1909. 

V  F  17.  A  merchant  arrested  a  man  and  turned  him  over  to  the 
sheriff  as  a  vagrant.  It  later  developed  that  the  man  was  a  deserter 
and  that  the  merchant  did  not  know  that  fact.  Held  that  as  one  who 
performs  an  act  for  which  a  reward  is  offered,  in  ignorance  of  the  offer 
can  not  recover  the  reward,^  that  the  merchant  was  not  entitled  to 
the  reward  for  the  apprehension  and  delivery  of  deserters.  C.  17327 j 
July  18,  1908,  and  Mar.  10.  1909. 

V  F  18.  A  civil  officer  without  request  from  the  mihtary  authorities 
arrested  a  man  as  a  deserter  from  the  Army  who  was  not  charged 
with  being  a  deserter  and  who  was  not  actually  a  deserter.  Held 
that  the  officer  making  the  arrest  could  not  be  compensated  for  his 
time  and  expenses  and  that  he  could  not  throw  upon  the  Government 
the  burden  growing  out  of.  his  own  mistakes.^  R.  20,  Mar.,  1866; 
G.  9529,  Jan.  2,  1901;  16086,  Mar.  28,  1904;  18586,  Sept.  19,  1905; 
20766,  Dec.  13,  1906;  17327,  July  8,  1907,  Sept.  U,  1908,  and  Sept. 
18,  1911. 

V  F  19.  A  civil  officer  by  mistake  arrested  the  wrong  man,  who 
sued  him  for  wrongful  arrest  and  obtained  judgment  against  him. 
The  oflicer  then  requested  reimbursement  from  the  War  Department 
in  the  amount  of  $400.62  for  damages  and  expenses  incurred  by 
reason  of  arrest.  Held  that  there  is  no  provision  in  the  appropriation 
for  the  apprehension  and  deliverv  of  deserters  for  the  reimbursement 
of  officers  who  incur  liability  by  reason  of  mistakes  in  identity, 
whether  such  mistakes  are  or  are  not  due  to  a  failure  to  exercise  due 
care  in  the  premises,  and  that,  therefore,  the  claim  could  not  be  paid. 
C.  19263,  Feb.  28,  1906. 

V  F  20  a.  A  deserter  stated  to  a  police  officer  that  he  desired  to 
surrender  himself  as  a  deserter  and  inquired  the  location  of  a  recruit- 
ing party.  The  policeman  arrested  the  deserter  and  delivered  him 
as  such.  Held  that  while  there  was  a  technical  arrest  and  possibly 
facts  which  might  be  construed  as  a  delivery  of  the  deserter  that  the 
claim  for  the  reward  was  without  merit.     C.  17327,  Feb.  2,  1909. 

^  Anson  on  Contracts,  p.  25,  note  1;  Wald's  Pollock  on  Contracts  (Williston's  ed.),. 
p.  13,  note  12. 

2  VI  Comp.  Dec,  743;  and  see  par.  121,  A.  R.,  ed.  1910,  which  provides  that  the 
reward  will  be  in  full  satisfaction  of  all  expenses  for  arresting,  keeping,  and  delivering 
the  deserter  or  escaped  military  prisoner. 


DESERTION  V  F  20  b.  413 

V  F  20  b.  A  deserter  who  was  serving  a  sentence  for  vagrancy  wrote 
to  his  first  sergeant  announcing  his  wish  to  surrender  nimself  as  a 
deserter.  The  deputy  sheriff  read  the  letter  and  thus  learned  of  the 
man's  identity.  Ilelcl  that  if  the  offer  of  a  reward  for  the  apprehen- 
sion of  the  man  was  withdrawn  the  deputy  sheriff  would  not  be  en- 
titled to  the  reward,  but  that  if  the  offer  of  the  reward  was  not  with- 
drawn and  the  deputy  sheriff  delivered  the  deserter  he  would  be 
entitled  to  the  reward.     C.  17327,  Apr.  30,  1909. 

VI  A.  A  deserter  was  restored  to  duty  without  trial  and  thereafter 
served  faithfully.  Held  that  he  may  be  reenlisted.  C.  2004,  Joif^-  22, 
1896;  2384,  June  24,  1896;  Jan.  18,  1898;  9736,  Jan.  31,  1901;  9769, 
Feb.  4,  1901;  16119,  Avr.  2,  1904. 

VI  B.  When  a  soldier  deserts  from  one  regiment  and  enlists  in 
another  he  may  be  held  to  serve  out  both  enlistments  or  either  of  them. 
In  the  latter  case  the  Government  abandons  the  first  enlistment  by 
discharging  him  therefrom  without  honor  and  holds  him  to  the  second 
enlistment.     No  transfer  is  necessary.     C.  2115,  Mar.,  1896. 

VI  C.  A  deserter  at  large  from  the  Volunteer  Army  was  drafted 
in  1864,  and  served  as  a  drafted  soldier  until  mustered  out.  Held 
that  his  status  as  such  drafted  soldier  was  unaffected  by  the  fact  that 
he  was  in  desertion  at  the  time  he  was  drafted;  nor  was  his  status  as  a 
soldier  in  desertion  affected  by  his  being  drafted  or  by  his  service  as 
a  drafted  man.     C.  2106,  Mar.  21,  1896;  6708,  Apr.  27,  1899. 

VI  D.  Upon  the  question  of  whether  or  not  there  is  any  way  by 
which  a  man  who  has  once  been  convicted  of  desertion,  and  sentenced 
to  dishonorable  discharge,  the  sentence  having  been  approved  and 
executed,  can  again  enter  the  service  as  a  soldier,  hela  that  it  is 
within  the  power  of  the  Secretary  of  War  to  decide,  on  the  facts  pre- 
sented, that  the  prior  service  of  the  soldier  was  honest  and  faithful, 
even  though  it  included  desertion,  and  that  upon  such  decision  he 
would  be  eligible  for  reenUstment.  C.  20991,  Jan.  2, 1907.  See  also 
Desertion  XVI A  1. 

VII  A  1 .  A  first-class  private  of  the  Engineers  was  dropped  as  a 
deserter  and  later  surrendered  himself,  and  the  question  arose  as  to 
whether  or  not  he  should  be  taken  up  as  a  first-class  private.  Held 
that  the  action  of  the  company  commander  in  dropping  this  soldier 
on  the  morning  report  and  rolls  of  the  company  operated  to  vacate 
his  appointment  as  first-class  private,  and  that  the  erroneous  action 
of  the  company  commander  in  taking  him  up  as  a  first-class  private 
upon  his  return  to  military  control,  and  while  in  arrest  ana  under 
serious  charges,  and  his  subsequent  trial  under  that  designation,  did 
not  operate  to  restore  him  to  the  position  of  first-class  private.  C. 
24867,  Mar.  18,  1911. 

VII  A  2.  A  deserter  upon  physical  examination  as  required  by 
the  regulations  was  discovered  to  be  insane  and  the  insanity  to  have 
been  contracted  not  in  line  of  duty  and  while  in  desertion.  Held 
that  it  was  not  one  of  the  cases  in  which  the  Secretary  of  War  should 
issue  an  order  for  the  commitment  of  the  man  to  the  Government 
Hospital  for  the  insane,  but  that  a  discharge  without  honor  should 
issue  if  it  had  not  already  been  delivered.     C.  24497,  Feb.  17,  1909. 

VIII.  Statute  of  limitations.     (See  103,  A.  W.) 

IX  A.  A  soldier  was  charged  with  desertion.  Held  that  this  did 
not  constitute  evidence  that  he  had  committed  the  offense.  E.  2, 
620,  June,  1863. 


414  DESERTION   IX  B. 

IX  B.  An  entry  on  a  morning-report  book,  descriptive  list,  or 
other  official  statement  or  return  that  a  soldier  deserted  on  a  certain 
day  was  held  as  not  legal  evidence  that  he  had  committed  the  offense 
of  desertion,  but  evidence  only  of  the  fact  that  he  had  been  charged 
with  commission  of  such  offense.     R.  22,  15,  Mar.,  1866. 

IX  C.  A  report  from  The  Adjutant  General's  Office  contained 
extracts  from  the  muster  rolls  of  a  regiment  in  which  was  recorded 
the  statement  that  a  soldier  of  that  regiment  had  deserted  on  a  cer- 
tain date.  Held  that  this  was  insufficient  proof  of  the  fact  of  desertion 
to  justify  the  soldier's  conviction  for  that  offense.  B.  12,  28,  Oct., 
1864. 

IX  D.  A  report  of  prisoners  contained  the  statement  that  a  soldier 
deserted  on  a  certain  day  and  was  subsequently  apprehended  as  a 
deserter.  Held  that  upon  his  trial  for  desertion  this  entry  was  not 
legal  evidence  of  the  fact  of  desertion.     B.  37,  690,  June,  1876. 

IX  E.  A  first  sergeant  swore  on  the  trial  of  a  soldier  charged  with 
desertion  that  the  accused  ''deserted"  at  a  certain  time  and  place. 
Held  that  this  statement  was  insufficient  as  proof  to  establish  the 
offense  charged,  as  it  was  the  province  of  the  witness  simply  to  state 
the  facts  and  circumstances  so  far  as  known  to  him  attending  the  act 
alleged,  and  the  province  of  the  court  to  arrive  at  the  conclusion  of 
whether  or  not  the  offense  committed  was  "desertion."  B.  88,  6^0, 
June,  1877. 

IX  F.  A  soldier  was  dropped  from  the  rolls  as  a  deserter.  Held 
that  that  is  not  legal  evidence  to  prove  the  fact  of  desertion  upon  his 
trial  for  that  offense.  B.  49,  118,  June,  1886;  C.  18764-B,  May  6, 
1910. 

IX  G.  The  amenability  to  trial  of  a  deserter  from  an  enlistment  in 
the  Army  is  not  affected  by  the  fact  that  when  he  enlisted  he  was  a 
deserter  from  the  Marine  Corps.  B.  48,  203,  Dec,  1883;  C.  18694, 
Oct.  10,  1906. 

IX  H.  In  trials  of  desertion  it  is  not  necessary  to  intl'oduce  evi- 
dence as  to  the  date  of  enlistment  unless  the  same  is  alleged  in  the 
specification.     C.  2844,  Jan.,  1897. 

IX  I.  Held  to  be  no  defense  to  a  charge  of  desertion  that  the 
accused,  at  the  time  of  enlistment  which  he  is  charged  with  having 
abandoned,  was  an  unapprehended  deserter  from  the  Army;  an 
enlistment  of  a  deserter  Deing  not  void  but  voidable  only.*  B.  34, 
499,  Oct.,  1873;  48,  203,  Dec,  1883. 

IX  K.  A  soldier  was  tried  for  desertion  and  introduced  evidence 
to  show  that  he  was  induced  to  abandon  the  service  because  of  ill 
treatment,  want  of  proper  food,  etc.  Held  that  such  circumstances 
can  only  palliate,  not  excuse  a  desertion  if  committed,  and  do  not 
constitute  a  defense  to  the  charge  of  desertion.  B.  34,  4^1,  ^'^9-7 
1873. 

IX  L.  A  Swiss  enhsted  in  our  Army  and  after  two  years  deserted 
because  of  intense  nostalgia  (homesickness),  or  matadie  du  pays. 
Held  that  although  this,  under  the  circumstances,  was  a  matter  of 
extenuation  it  was  not  a  defense.     B.  28,  496,  Apr.,  1869. 

IX  M.  A  German  who  had  enlisted  received  notification  from  the 
mihtary  authorities  of  the  North  German  Empire  to  report  at  home 
for  military  duty,  under  the  penalty  of  being  considered  a  deserter 
from  the  German  Army.     Held  that  this  constituted  no  defense  to 

1  See  fiftieth  article  of  war. 


DESERTION  IX   N.  415 

the  desertion  committed  by  him  from  our  service.*     R.  84,  4II, 
Aug.,  1873. 

IX  N.  It  is,  however,  a  complete  answer  to  a  charge  of  desertion 
before  a  court-martial,  that  the  accused  has  previously  been  ''restored 
to  duty  without  trial,"  as  sanctioned  by  Army  Regulations,  provided 
he  has  been  so  restored  by  competent  authority,  i.  e.,  the  commander 
who  would  have  been  authorized  to  convene  a  general  court  for  his 
trial;  otherwise,  however,  when  so  restored  by  a  superior  not  duly 
authorized.  R.  6,  4I8,  Oct.,  1864;  P-  IS,  302,  Aug.,  1887;  21,  223, 
Dec,  1887. 

IX  O.  Held  that  a  deserter  from  a  Volunteer  regiment  was,  after 
the  disbandment  of  the  Volunteer  Army,  no  longer  amenable  to 
military  jurisdiction,  having  become  thereupon  a  civilian.  P.  4^, 
406,  Aug.,  1890;  60,  192,  Nov.,  1891;  O.  494,  Oct.,  1894.  The  lia- 
bility of  such  a  deserter  to  trial  and  punishment  by  court-martial 
continues,  notwithstanding  the  muster  out  of  his  own  regiment, 
until  the  entire  Volunteer  Army  has  been  mustered  out  of  service. 
C.  6410  and  6433,  May,  1899;  6593,  June,  1899;  9005,  Sept.,  1900. 

X  A.  A  soldier  pleaded  guilty  to  the  charge  of  desertion,  was  con- 
victed and  sentenced  to  dishonorable  discharge,  forfeiture  of  pay  and 
allowances  and  confinement  at  hard  labor  for  two  and  one-half  years. 
Upon  application  for  a  pardon  to  restore  his  citizenship  rights  which 
were  forfeited  in  the  operations  of  sections  1996  and  1998,  R.  S.,  it 
was  held  that  these  sections  were  taken  from  legislation  enacted 
about  the  close  of  the  Civil  War  and  are  believed  to  be  unduly  severe 
for  desertions  in  time  of  peace  and  not  in  the  face  of  an  enemy.  Fur- 
ther held  that  it  has  been  usual  in  like  cases  to  grant  relief  by  an 
exercise  of  the  pardoning  power.  C.  5280,  Nov.  10,  1898;  6105, 
Mar.  23,  1899;  11855,  Jan.  15,  1902;  11915,  Jan.  29,  1902;  16215, 
Apr.  27,  1904;  16618,  July  26,  1904. 

X  B.  The  Executive  order  setting  forth  the  maximum  Kmits  of 
punishment  provides  that  the  punishment  for  desertion  may  be 
mcreased  for  each  previous  desertion.  Held  that  this  is  not  limited 
to  desertions  in  the  current  enUstment.  C.  2210,  Apr.  13,  1896; 
I4I6I,  June  27,  1908. 

X  C  1.  Held  that  a  general  prisoner  who  was  convicted  of  deser- 
tion only  could  not  in  view  of  the  prohibition  in  the  ninety-seventh 
article  of  war  be  confined  in  a  penitentiary.     C.  9002,  Sept.  24,  1900. 

X  C  2.  A  soldier  was  convicted  of  desertion  and  of  other  offenses 
the  punishment  for  which  ordinarily  includes  confinement  in  a  peni- 
tentiary. Held  that  his  conviction  for  desertion  would  not  prevent 
his  incarceration  in  a  penitentiary.  O.  10131,  Apr.  4,  1901;  19397, 
Mar.  31,  1906.  ,     F     ^,  ^  , 

X  D.  A  soldier  deserted  in  time  of  war.  He  was  brought  to  trial 
after  the  end  of  the  war,  i.  e.,  in  time  of  peace.  Held  that  while  the 
statute  of  limitations  does  not  run,  the  punishment  may  not  exceed 
that  set  forth  ui  the  Executive  order.  C.  17294,  Dec.  24, 1904;  21018, 
Sept.  26,  1905;  17034,  Feb.  11, 1911. 

XI.  Every  desertion  in  which  the  deserter  leaves  his  station  before 
he  surrenders  or  is  apprehended  for  the  desertion  includes  an  absence 
without  leave.     Upon  a  trial  for  such  desertion,  the  accused  is  tried 

^  Our  public  law,  as  to  the  principles  of  the  right  of  expatriation,  is  found  in  section 
1999,  R.  S. 


416  DESEKTION   XII   A. 

also  for  the  absence  without  leave  involved  in  the  offense  charged.* 
If  acquitted,  without  reservation,  of  the  desertion,  he  is  acquitted  also 
of  the  lesser  offense.  If  convicted,  as  he  may  be,  of  the  lesser  offense 
only,  under  a  charge  of  the  greater,  he  is  acquitted  in  law  of  the 
greater.  R.  33,  123,  July,  1872;  C,  9528,  Jan.  13,  1901;  12168, 
Mar.  10,  1902;  12296,  Mar.  25,  190  12597,  June  27,  1902;  12967 
May  7,  1904;  18934,  Bee.  28,  1905. 

XII  A.  A  deserter  surrendered.  There  were  circumstances  which 
commended  him  to  the  consideration  of  superior  authority.  Held 
that  there  was  no  legal  objection  to  restoring  him  to  duty  without 
trial.     C.  13554,  Oct.  25,  1902;  18902,  Dec.  6,  1905. 

XII  A  1.  A  soldier  deserted  and  reenlisted  in  another  regiment. 
His  superior  officers  recommended  pardon  and  restoration  to  duty. 
Held  that  there  was  no  legal  objection  to  his  restoration  to  duty  with- 
out trial  in  the  second  or  fraudulent  enlistment.  C.  5465,  Dec.  8, 
1898. 

XII  B.  In  the  case  of  a  soldier  who,  because  of  particularly  em- 
barrassing conditions  that  surrounded  the  incidents  of  his  service, 
deserted  and  who  as  he  grew  older  saw  the  error  of  his  way  and  wished 
to  return  to  the  service  and  serve  his  country,  and  whose  only  offense 
had  been  that  of  desertion,  held  that  upon  surrender  he  could  be 
restored  to  duty  without  trial  by  the  proper  authority,  but  that  the 
application  for  such  restoration  should  be  made  bv  a  company  com- 
mander. G.  16306,  May  7,  1904,  Oct.  14,  1904,  "^and  Dec.  2,  1904, 
18902,  Apr.  10,  1907,  and  Dec.  15,  1909. 

XIII.  Making  good  time  lost.     (See  forty-eighth  article  of  war.) 

XIV  A  1 .  Hdd  that  as  an  enlisted  man  while  absent  in  desertion  is 
not  rendering  service  under  his  enlistment  contract,  and  as  such 
service  must  be  faithfully  rendered  to  entitle  him  to  the  pay  and 
emoluments  which  accrue  upon  its  rendition,  that  no  right  to  pay  or 
allowances  can  accrue  in  behalf  of  a  soldier  who  by  reason  of  un- 
authorized absence  has  put  it  out  of  his  power  to  render  the  service 
stipulated  for  in  his  contract  of  enlistment. ^  C.  17768,  Nov.  9,  1909; 
27004,  July  11,  1910. 

XIV  A  2.  A  soldier  was  tried  and  convicted  of  desertion.  The 
reviewing  authority  disapproved  the  conviction  on  the  sole  ground 
that  the  evidence  did  not  sustain  the  charge.  Held  that  the  soldier 
can  not  legally  be  subjected  to  the  forfeiture  of  pay  and  allowances 
since  he  can  not  be  treated  as  a  deserter  in  law.  R.  27,  262,  Sept., 
1868;  35,  638,  Oct.,  1874;  36,  82,  Nov.,  1874-     C.  17768,  Nov.  9, 1909. 

XIV  A  3.  The  forfeiture  of  pay  and  allowances  prescribed  for 
deserters  by  Army  Regulations  can  be  imposed  in  any  case  onlj" 
upon  a  satisfactory  ascertainment  of  the  fact  of  desertion.  This 
fact  may,  of  course,  be  established  by  the  finding  of  a  general  court- 
martial.  Held  that  it  may  also  be  established  administratively  in 
the  absence  of  an  investigation  by  a  court-martial  as,  for  instance, 
by  the  restoration  to  duty  without  trial  by  order  of  competent 
authority  of  a  soldier  charged  with  desertion,  ^  but  that  as  m  the 
case  of  statutory  liability  the  forfeiture  of  pay  and  allowances  is 

1  See  13  Op.  Atty.  Gen.  460. 

2  XII  Comp.  Dec,  328-338,  Dec.  2,  1905;  XV  id.,  661,  Apr.  28,  1909. 

3  See  U.  S.  V.  Landers  (92  U.  S.  79,  Oct.,  1875),  in  which  the  Supreme  Court  held 
that  the  pay  and  allowances  of  a  soldier  may  be  withheld  upon  a  showing  on  the 
muster  roll  of  his  company  that  he  is  a  deserter.  This  case  went  up  from  Court  of 
Claims,    See  9  Ct,  Cls.  242,  December  term,  1873.    See  also  33  id.,  June  21,  1897. 


DESERTION    XIV  A  4.  417 

generally  applied  only  upon  the  approved  conviction  by  court- 
martial  of  the  alleged  deserter.  R.  7,  207,  Feh.,  and  325,  Mar.,  1864; 
50,  122,  Mar.,  and  421,  June,  1886;  P.  21,  224,  Dec.  20,  1887;  49, 
150,  Sept.,  1891;  C.  4937,  Sept.,  1898;  7232,  Nov.  1,  1899. 

XIV  A  4.  Held  that  an  order  directing  the  discharge  without 
honor  of  a  soldier  on  account  of  desertion  is  sufficient  evidence  to 
justify  the  Pay  Department  in  withholding  pay  and  allowances 
that  were  due  him  at  the  time  he  was  charged  with  desertion.  O, 
7232,  Nov.,  1899;  8355,  June  13,  1900. 

XIV  A  5.  A  soldier  was  convicted  of  desertion.  The  department 
commander  disapproved  the  finding  without  announcing  the  reason 
for  the  disapprovSjl.  Held  that  in  such  cases,  viz,  in  which  the  pay 
of  an  enlisted  man  depends  upon  his  status  as  absent  with  or  without 
leave  or  in  desertion,  that  the  fact  should  be  ascertained  by  The 
Adjutant  General  from  the  records  of  his  office  who  should  make  a 
report  to  the  Paymaster  General  in  response  to  a  request  from  that 
officer.  1     G.  17768,  Nov.  9,  1909. 

XIV  A  6.  A  soldier  charged  with  desertion  was  acquitted.  Held 
that  he  can  not  be  subjected  to  a  forfeiture  of  pay  and  allowances 
on  account  of  desertion  even  though  the  finding  be  disapproved  by 
the  reviewing  authority.     R.  31,  19,  Nov.,  1870. 

XIV  A  7.  A  soldier  was  erroneously  charged  on  the  rolls  with 
desertion  and  the  charge  was  removed  in  War  Department  orders. 
Held  that  the  removal  operated  to  relieve  him  of  any  and  all  stop- 
pages which  had  been  charged  against  his  pay  account  on  account  of 
desertion.  R.  39,  413,  Feb.,  1878;  4I,  518,  Mar.,  1879;  C.  12227, 
Mar.  28  and  Oct.  7,  1902;  14992,  Aug.  27,  1903;  17311,  Jan.  9, 1905; 
17768,  Apr.  1  and  25,  and  June  17,  1905.^ 

XIV  B.  The  forfeiture  of  the  rights  of  citizenship,  and  the  incapacity 
to  hold  office  under  the  United  States,  imposed  upon  deserters  by  the 
act  of  March  3, 1865  (sees.  1996  and  1998,  R.  S.),  can  be  incurred  only 
upon  and  as  incident  to  a  conviction  of  desertion  by  a  general  court 
martial,  duly  approved  by  competent  authority .^  R.  32,  370,  Mar., 
1872;  33,  221,  Aug.,  1872;  35,  464,  July,  1874;  38,  434,  Feb.,  1877; 
39,  433,  Mar.,  1878;  42,  30,  Nov.,  1878;  P.  3,  221,  Feb,,  1884;  ^, 
4O8,  Aug.,  1890;  C.  248,  Aug.  30,  1894;  2934,  Feb.,  1897;  3095, 
Apr.,  1897;  4513,  July,  1898;  10082,  Mar.  27,  1901;  10918,  July 
25,  1901;  11345,  Oct.  7,  1901;  11508,  Nov.  7,  1901;  14163,  Feb.  13, 
1903,  Feb.  5,  1908,  and  Mar.  25,  1911;  16178,  Apr.  11,  1904, 
and  Feb.  4,  1908;  16215,  Apr.  27,  1904;  19577-B,  Feb.  26,  1909; 
19577-T),  Sept.  7,  1910;  19577-E,  Mar.  4,  1911.  These  disabilities, 
though  attaching  to  every  such  conviction,  may  be  removed  by  an 

*  See  par.  247,  Manual  for  the  Pay  Department,  U.  S.  Army,  revision  to  include 
Aug.  15,  1910,  in  which  the  rule  is  announced  that  if  the  disapproval  of  the  reviewing 
authority  is  based  upon  other  reasons  than  lack  of  evidence  to  sustain  the  charge 
that  the  soldier  should  be  held  in  matters  of  payment  to  be  a  deserter,  but  if  on  lack 
of  evidence  he  is  not  a  deserter.  Also  see  XII  Comp.  Dec.  328,  Dec.  2,  1905,  and 
XV  id.,  661,  Apr.  28,  1909. 

2  Such  is  iDelieved  to  have  been  the  uniform  course  of  ruling  in  the  civil  courts. 
See  State  v.  Symonds,  57  Maine,  148;  Holt  v.  Holt,  59  id.,  464;  Severance  v.  Healey, 
50  N.  Hamp.,  448;  Goetcheus  v.  Matthewson,  61  N.  York,  420  (and  5  Lansing,  214; 
58  Barb.,  152);  Huber  v.  Reily,  53  Pa.  St.,  112;  McCafferty  v.  Guyer,  59  id.,  110; 
Kurtz  V.  Moffit,  115  U.  S.,  487,501. 

As  to  the  liability  to  make  good  to  the  United  States  the  time  lost  by  a  desertion,  see 
Forty-eighth  Article. 

31106°— 12 27 


418  DESERTION   XIV  B  1. 

executive  pardon  of  the  offender.  R.  35,  85,  Jan.,  1874;  P-  4^,  373, 
Aug.,  1890;  56,  56,  Oct.,  1892;  63,  494,  Feb.,  1894.  But  whether 
a  soldier  duly  convicted  of  desertion  and  dishonorably  discharged 
the  service  may  vote  at  a  State  election  would  be  determined  by 
the  law  of  the  particular  State.  C.  4^9,  Oct.,  1894;  15900,  Oct. 
17,  1904;  14725,  May  28,  1903;  19577-A,  May  18,  1908. 

XIV  B  1.  A  Filipino  deserted  from  the  Philippine  Scouts.  Held 
that  as  he  was  not  a  citizen  of  the  United  States  he  did  not  forfeit 
citizenship  in  the  United  States.  Held  further  that  as  no  law  had 
been  passed  by  Congress  or  by  the  Philippine  Commission  forfeiting 
citizenship  in  the  Philippines  on  account  of  desertion  he  had  not 
forfeited  any  citizenship  that  he  may  have  ha4  in  the  Philippine 
Islands.     C.  23574,  July  13,  1908. 

XIV  C.  A  deserter  can  not  legally  be  subjected  to  any  forfeiture 
other  than  those  prescribed  by  statute  or  Army  regulation.  He 
incurs,  for  example,  no  forfeiture  of  his  own  personal  property.  So, 
where  it  was  proposed  to  sell  certain  private  property  belonging  to  and 
left  by  a  deserter  and  devote  the  proceeds  to  the  post  fund,  Tield  that 
there  was  no  legal  authority  for  such  appropriation  by  the  military 
authorities  or  the  Government.  R.  35,  454,  June,  1874-  So  a  soldier, 
by  reason  of  having  deserted,  does  not  forfeit  local  bounty  money 
which  has  been  paid  him  upon  enlistment  or  subsequently,  or  any 
other  money  found  in  his  possession  upon  his  arrest.  And  such 
money  can  not  legally  be  withheld  from  him,  to  be  appropriated  to  a 
regimental  or  post  fund  or  any  other  purpose,  but,  being  his  own 
personal  property,  unaffected  by  his  offense,  must  be  treated  as  such. 
R.  13,  329,  Fel.,  1865;  15,  128,  Aug.,  1865;  16,  168,  595,  May  and 
Sept.,  1865;  25,  4OO,  Mar.,  1868. 

Similarly  held  that  he  does  not  forfeit  private  funds  that  were 
in  the  care  of  the  company  commander.     U.  20812,  Dec.  21,  1906. 

XIV  D.  Where  a  soldier  was  discharged  without  honor  by  reason  of 
desertion,  while  in  the  Government  Hospital  for  the  Insane,  and  the 
circumstances  attending  hia  desertion  indicated  that  he  was  probably 
not  responsible  for  his  acts,  held  that  he  should  not  be  visited  with  the 
forfeitures  prescribed  by  statute  for  the  offense  of  desertion.  G. 
17327,  Mar.  5,  1910. 

XIV  E.  Held,  that  under  section  1305,  R.  S.,  a  soldier  forfeited  on 
desertion  the  money  he  deposited  with  a  paymaster.  C.  9166,  Oct.  24, 
1900;  17295,  Dec.  21,  1904;  19577,  Fel.  15,  1910. 

XIV  F.  A  soldier  deserted  who  owed  money  to  the  company  fund 
of  his  company.  Held  that  after  his  account  was  settled  all  moneys 
standing  to  his  credit  were  forfeited  to  the  United  States  and  could 
not  be  set  aside  to  pay  his  iadebtedness  to  the  company  fund.  C. 
14992,  Aug.  28,  1903. 

XV  A.  A  pardon  does  not  operate  retroactively,  and  can  not  there- 
fore '^ remove  a  charge"  of  desertion.  R.  50,  395,  June,  1886;  P.  42, 
4O6,  Aug.,  1890;^  43,  36,  Sept.,  1890.  It  does  not  wipe  out  the  fact 
that  the  party  did  desert  nor  can  it  make  the  record  say  that  he  did 
not  desert.  It  can  not  change  facts  of  history.^  P.  58,  44^ y  Mar., 
1893;  0.  1883,  Aug.  8,  1896,  and  Feb.  25,  1899;  3125,  Apr.  21,  1897; 
14899,  July  30,  1903;  19522,  Apr.  I4,  1906;  20342,  Sept.  7,  1906; 
24305,  Jan.  8,  1909;  I4I63,  Feb.  4,  1909. 

^  See  22  Op.  Atty.  Gen.,  36. 


DESERTION   XV   B   1.  419 

XV  B  1.  A  soldier,  who  had  successively  enlisted  in  and  deserted 
from  two  companies  of  the  same  volunteer  regiment,  returned  in 
response  to  the  President's  proclamation  and  served  out  his  first 
enlistment.  Held  that  the  proclamation  operated  as  a  pardon  for 
both  of  his  desertions,  and  that  he  should  be  treated  as  discharged 
from  his  second  enhstment  by  his  restoration  to  duty  in  the  first. 
C.  SU7,  Aug.  20,  1897. 

XV  B  2.  A  soldier,  who  enlisted  Aug^ist  16,  1862,  for  three  years, 
deserted  May  16,  1864,  was  arrested  April  20,  1865,  and  again  deserted 
September  29,  1865.  There  were  thus  two  charges  of  desertion  stand- 
ing against  him.  Under  the  President's  proclamation  of  March  11, 
1865,  all  deserters  who  returned  to  service  within  60  days  were  par- 
doned "on  condition  that  they  *  *  *  serve  the  remainder  of 
their  original  terms  of  enlistment  and  in  addition  thereto  a  period 
equal  to  the  time  lost  by  desertion."  And  a  War  Department  cir- 
cular of  May  29,  1865,  provided  that  when  deserters  had  oeen  arrested 
during  the  continuance  of  the  said  ploclamation  they  should  be 
entitled  to  its  benefits.  In  the  particular  case  under  consideration 
the  soldier  was  arrested  during  the  continuance  of  the  proclamation 
and  was  therefore  pardoned  on  the  conditions  named  therein.  He 
thus  became  obliged  to  serve  until  July  20,  1866,  but  as  he  failed  to 
comply  with  this  condition  by  deserting  September  29,  1865,  Tield  that 
both  charges  of  desertion  should  be  allowed  to  stand  against  him. 
C.  1390,  July,  1895. 

XV  B  3.  There  is  no  law  extending  amnesty  to  soldiers  who  are 
now  deserters  from  the  United  States  Army.     C.  778,  Dec.  19,  1894- 

XV  C.  Application  was  made  for  the  pardon  of  a  deserter  at  large. 
Held  that  it  has  not  been  the  practice  of  the  War  Department  to 
consider  applications  for  the  pardon  of  deserters  so  long  as  they 
remain  fugitives  from  justice.  C.  3304,  June  23,  1897;  3656,  Nov. 
13, 1887;  3950,  Nov.  1,  1888;  5479,  Dec.  16,  1898;  5733,  Feb.  9,  1899; 
6410,  May  11,  1899;  7007,  Sept.  I4,  1899;  7601,  Feb.  6,  1900;  7819, 
Mar.  20,  1900;  8032,  Apr.  I4,  1900;  8864,  Sept.  1,  1900;  9005,  Sept. 
25,  1900;  948I,  Dec.  28,  1900;  9842,  Feb.  18,  1901;  10717,  June  27, 
1901;  10839,  July  12,  1901;  11565,  Nov.  8, 1901;  11639,  Dec.  27, 1901; 
II64O,  Dec.  28, 1901;  11901,  Jan.  11, 1902;  13821,  Dec.  16, 1902;  18902, 
June  17,  1908;  24634,  Mar.  18,  1909;  24691,  Mar.  20,  1909;  19577-D, 
Dec.  21,  1910. 

XV  D.  Held  that  restoration  to  duty  is  a  constructive  pardon 
for  desertion.     C.  4076,  Apr.  30,  1898;  I68I4,  Sept.  3,  1904. 

XV  E.  The  practice  of  the  department  has  been  to  secure  a  pardon 
for  the  purpose  of  restoring  citizenship  in  cases  where  a  soldier  has 
been  convicted  of  desertion,  has  served  the  term  of  imprisonment 
imposed  by  the  court,  and  where  his  subsequent  conduct  in  civil 
life  has  been  such  as  to  warrant  the  pardon.  C.  14380,  Apr.  6,  1903; 
14381,  Apr.  6,  1903;  14583,  May  16,  1903;  14899,  July  7,  1903; 
14921,  Sept.  12,  1903;  15323,  Oct.  17,  1903;  I54I8,  Oct.  24,  1903; 
15514,  Nov.  20,  1903;  15682,  Jan.  18,  1904;  15747,  Jan.  18,  1904; 
15968,  Mar.  2,  1904;  16008,  Mar.  8,  1904;  16323,  May  12,  1904; 
16513,  June  28,  1904;  1^601,  July  18,  1904;  17007,  Oct.  15,  1904; 
15900,  Oct.  17,  1904;  17071,  Nov.  7,  1904;  17519,  Feb  15,  1905; 
17582,  Feb.  24,  1905;  17598,  Feb.  28,  1905;  17741,  Mar.  28,  1905; 
17799,  Apr.  8,  1905;  17693,  Apr.  19,  1905;  18027,  May  20,  1905; 
17978,  June  3,  1905;  18383,  Aug.  3,  1905;  18837,  Nov.  17,  1905; 


420  DESERTION    XV  E   1. 

19358,  Mar.  16,  1906;  19462,  Apr.  12,  1906;  19577,  Apr.  26,  1906,  to 
July  30,  1911;  1^163,  Feb.  5,  1908. 

XV  E  1.  It  has  been  the  practice  of  the  department  to  require 
apphcants  for  pardon  which  restores  citizenship  that  has  been  lost 
under  sections  1996  and  1998,  R.  S.,  to  submit  with  their  applications 
certificates  of  at  least  two  reputable  citizens  of  their  community  as 
to  their  reputation  for  being  honest,  industrious,  and  having  good 
moral  character.  Generally  applications  will  be  considered  only 
after  one  year  has  elapsed  since  the  man  has  been  released  from 
miUtary  control.  C.  19577-A,  Aug.  17,  1908,  Aug.  21,  1908,  Sept. 
12,  1908,  Sept.  18,  1908,  Oct.  14,  1908,  Oct.  30,  1908,  Dec.  2,  1908, 
Dec.  17,  1908,  Jan.  24,  1909,  Feb.  26,  1909,  Sept.  3,  1909,  Jan.  17, 
1911,  Jan.  18,  1911,  and  Mar.  3,  1911.  ^ 

XV  F.  A  general  court-martial  convicted  a  soldier  of  desertion, 
but  ^ave  him  a  sentence  which  retained  him  in  the  service.  Held 
that  in  view  of  the  fact  that  by  conviction  of  desertion  his  citizen- 
ship was  forfeited  under  sections  1996  and  1998,  R.  S.,  that  he  should 
be  mformed  that  if  he  desired  a  pardon  which  would  operate  to  restore 
his  citizenship  that  he  should  make  application  in  a  letter  to  The 
Adjutant  General  of  the  Army  for  such  a  pardon  by  the  President. 
0.  19579-A,  Apr.  13,  20,  and  23,  1908. 

XVI  A.  Although  a  legally  executed  discharge  without  honor 
issued  by  competent  authority  on  account  of  desertion  can  not  be 
set  aside,  held  that  on  sufficient  evidence  the  Secretary  of  War  may 
decide  that,  notwithstanding  the  discharge  without  honor  by  reason 
of  desertion,  the  man  was  nevertheless  not  a  deserter.^  C.  8355, 
June  —,  1900;  12227,  Mar.  25  and  Oct.  7,  1902,  and  June  5,  1904; 
14992,  Aug.  27, 1903;  14163,  Feb.  5,  1908. 

XVI  A  1.  Ordinarily  desertion  would  be  sufficient  evidence  that 
service  during  the  term  in  which  it  occurred  was  not  honest  and 
faithful,  but  if  in  an  exceptional  case  the  Secretary  of  War  should 
decide  that  it  was,  notwithstanding  the  desertion,  he  would  be  acting 
within  his  discretion  under  the  act  of  August  1,  1894  (28  Stat.  216). 
The  provision  in  the  act  of  June  16,  1890  (26  Stat.  157),  that  deser- 
tion renders  service  not  honest  and  faithful  is  limited  to  the  purposes 
of  that  act  and  does  not  control  enlistments  under  the  act  of  1894. 
a  2004,  Jan,,  1896;  2121,  Mar.,  1896;  3530,  Sept.,  1897;  3794, 
Jan.,  1898;  12004,  Feb.  1,  1902;  12395,  Apr.  21,  1902;  15114,  June 
22,  1903;  16119,  Apr.  2,  1904;  1^838,  Sept.  1,  1904;  17658,  Mar.  11, 
1905;  26007,  Feb.  29,  1909. 

XVI  B.  Held  that  a  charge  of  desertion  entered  against  a  soldier 
in  a  particular  term  of  enlistment  is  removed  by  an  honorable  dis- 
charge from  such  enlistment.^     C.  204I,  May,  1896. 

XVI  C  1.  A  soldier  was  charged  with  desertion  and  it  was  subse- 
quently established  that  he  was  a  prisoner  in  the  hands  of  the  enemy; 
held  that  the  rolls  could  not  properly  be  mutilated  by  an  erasure  of 
the  entry  of  desertion;  but  in  maldng  subsequent  rolls  the  true 
facts  as  then  found  could  be  entered,  together  with  entry  of  the  fact 
that  the  cliarge  of  desertion  on  prior  roll  was  erroneous;  and  a  note 
might  properly  be  made  on  the  erroneous  roll  referring  to  the  subse- 


^  Where  charge  is  removed  by  competent  authority,  the  conditions  are  the  same  as 
though  no  charge  of  desertion  had  been  made.     34  Ct.  Cls.,  446,  June  5,  1899. 
2  See  Digest  of  Decisions  of  2d  Comp.,  vol.  Ill,  sec.  559,  Aug.  31,  1885. 


i 


DESERTION  XVI  C  2.  421 

quent  roll  for  the  record  of  the  fact  that  the  entry  was  erroneous. 
C.  9534,  Jan.  S,  1901;  159^2,  Feb.  24,  1904. 

XVI  C  2.  Where  a  soldier  was  insane  at  the  time  of  his  desertion, 
held  that  the  charge  of  desertion  should  be  removed.  C.  670,  Nov. 
23,  1894;  2101,  Mar,  20,  1S96;  21117,  Feb,  25,  1907. 

XVI  C  3.  Held  in  the  case  of  a  soldier  who  was  erroneously  charged 
with  desertion,  that  tlie  rolls  can  not  properly  be  mutilated  by  an 
erasure  of  the  entry  of  desertion ;  but  in  making  subsequent  rolls  the 
true  facts,  as  then  found,  can  be  entered  thereon  together  with  an 
entry  of  the  fact  that  the  charge  of  desertion  on  a  prior  roll  was  errone- 
ous ;  and  a  note  may  properly  be  made  on  the  erroneous  roll  referring 
to  the  subsequent  roll  lor  the  record  of  fact  that  the  entry  was 
erroneous.     C.  6278,  Apr.  25,  1899. 

XVI  C  4.  A  soldier  ni  the  PhiUppines  was  given  a  furlough  with 

Eermission  to  return  to  the  United  States.  He  reported  his  address, 
ut  owing  to  a  miscarriage  in  the  mails  he  failed  to  receive  notice  that 
he  should  report  to  headquartei-s  before  a  discharge  could  be  issued 
to  liim,  and  was  accordingly  dropped  as  a  deserter.  Held  that  the 
charge  of  desertion  was  erroneously  made  and  should  be  removed 
by  the  department  commander  under  authority  of  the  Army  Regu- 
lations.    C.  18352,  July  29,  1905;  25066,  July  4,  1909. 

XVI  C  5.  If  a  soldier  absent  on  pass  should  be  the  victim  of  an 
accident,  as  the  result  of  which  he  is  placed  unconscious  in  a  hospital 
and  so  unable  to  communicate  with  the  military  authorities,  and 
thereby  be  dropped  as  a  deserter  at  the  end  of  10  days,  held  that  his 
absence  would  be  susceptible  of  a  perfectly  proper  explanation, 
would  not  entail  penal  consequences  on  account  of  desertion,  and 
that  under  such  circumstances  the  soldier  should  not  be  required, 
under  the  forty-eighth  article  of  war,  to  make  good  the  time  lost,  and 
that  the  charge  should  be  removed.     C.  21117,  Feb.  25,  1907. 

XVI  C  6.  A  soldier  having  been  informed  by  mistake  that  his 
application  for  furlough  had  been  approved,  left  his  station.  The 
apphcation  was  actually  disapproved,  and  the  man  later  was  dropped 
as  a  deserter,  and  apprehended  as  such.  Held,  that  the  charge  should 
be  removed  as  having  been  erroneously  made.  C.  1A398,  Mar.  31, 
1903,  and  Sept.  26,  1907. 

XVI  D  1.  Held  that  a  charge  of  desertion  can  be  removed,  under 
the  act  of  March  2,  1889,  (25  Stat.  869)  only  when  the  desertion  oc- 
curred during  the  Civil  War.     C.  2683,  Oct.  16,  1896. 

XVI-D  1  a.  The  persons  from  whose  military  record  there  may  be  a 
removal  of  the  charge  of  desertion,  under  the  act  of  March  2,  1889, 
(25  Stat.  869),^  are  those  against  whom  such  a  charge  is  ''now  stand- 
ing." Deserters,  therefore,  whose  cases  had,  at  the  date  of  the  act, 
been  judicially  duly  disposed  of — by  trial,  conviction,  and  sentence  by 
court-martial — are  not  within  the  purview  of  the  statute.  R.  53,  143, 
Oct.,  1886;  P.  18,  296,  Aug.,  1887;  C.  359,  Sept.,  1894      Similarly 

^The  following  acts  of  Congress  have  provided  for  the  removal  of  the  charge  of 
desertion  against  Civil  War  veterans  under  certain  circumstances: 

1.  Aug.  7,  1882  (22  Stat.  347). 

2.  Aug.  5,  1884  (23  Stat.  119). 

3.  May  17,  1886  (24  Stat.  51). 

4.  Mar.  2,  1889  (25  Stat.  869). 

5.  Mar.  2,  1891  (26  Stat.  824). 

6.  July  27,  1892  (27  Stat.  278). 

7.  Mar.  2,  1895  (28  Stat.  814). 


422  DESERTION   XVI  D  1  b. 

lield  with  respect  to  deserters  restored  to  duty  without  trial.  In  both 
cases  (conviction  by  court-martial  and  restoration  to  duty  without 
trial)  the  charge  of  desertion  no  longer  remains,  but  the  fact  of  de- 
sertion has  become  a  matter  of  record  and  can  not  be  removed.  C. 
2021,  2025,  Jan.,  1896;  2669,  Oct.,  1896;  2934,^  Feb.,  1897. 

XVI  D  1  b.  The  act  of  March  2,  1889,  applies  to  cases  in  which  a 
charge  of  desertion  is  ''now  standing,"  and  does  not  apply  to  cases 
in  which  the  charge  has  been  judicially  disposed  of  by  a  court-martial, 
or  where  the  soldier  has  been  restored  to  duty  without  trial.  The 
disposition  of  the  charge  in  either  of  the  methods  above  mentioned 
operates  to  remove  the  charge,  but  thej^c^  of  desertion,  having  become 
a  matter  of  record,  can  not  be  removed.  C.  21835,  Apr.  16, 1910;  359, 
Sept.  27,  1894. 

XVI  Die.  Section  3  of  the  act  of  March  2,  1889,  provides  for  the 
removal  of  a  charge  of  desertion  if  the  following  three  conditions  are 
fulfilled,  viz:  1,  That  the  soldier  enlisted  again  within  four  months  of 
the  desertion;  2,  that  he  served  such  term  faithfully;  and  3,  that 
such  reenlistment  was  not  made  for  the  puipose  of  securing  bounty, 
gratuity,  etc.  A  soldier  deserted  on  December  6,  1861,  and  enlisted 
on  the  13th  of  the  same  month  in  another  regiment,  deserted  from 
the  latter  regiment  on  January  8,  1863,  enlisted  on  the  15th  of  that 
month  in  a  third  regiment,  and  was  honorably  discharged  from  this 
enlistment.  Each  of  the  last  two  enlistments  was  made  within  four 
months  of  the  desertion  in  the  preceding  enlistment  and  neither  of 
them  was  made  for  the  purpose  of  securing  bounty,  etc.  Held,  there- 
fore, that  as  he  served  the  third  enlistment  faithfully  the  charge  of 
desertion  pertaining  to  the  second  enlistment  was  properly  removed, 
but  that  such  removal  and  the  consequent  issue  of  an  honorable  dis- 
charge did  not  affect  the  fact  that  he  did  not  serve  that  enlistment 
faithfully.  Further  held,  therefore,  that  the  charge  of  desertion  per- 
taining to  the  first  enlistment  could  not  be  removed.  C.  3928,  Mar., 
1898;  1361,  Aug.l,  1895;  3036,  Apr.  1,  1897;  9^34,  Dec.  31,  1900; 
11167,  Sept,  1901;  12312,  Apr.  21,  1902;  23100,  July  26,  1910. 

XVI  D  1  d.  While  the  first  section  of  the  act  of  March  2,  1889,- 
provides  that  the  charge  of  desertion  standing  against  a  volunteer 
soldier  who  served  until  May  1,  1865,  and  had  previously  served  six 
months  shall  be  removed,  etc.,  there  is  no  good  ground  for  holding 
that  the  act  as  a  whole  contains  any  provision  that  would  warrant 
taking  May  1,  1865,  as  the  close  of  the  war,  so  far  as  a  soldier  of  the 
Regular  Army  is  concerned,  or  as  a  date  before  which  a  desertion  must 
have  occurred  to  make  section  3  of  the  act  applicable.  Thus  where 
a  soldier  who  had  enlisted  in  the  Regular  Army  on  March  17,  1864, 
deserted  August  20,  1865,  and  11  days  thereafter  enlisted  in  an- 
other regular  regiment  not  for  the  purpose  of  bounty,  etc.,  and  was 
honorably  discharged  therefrom,  held  that  the  charge  of  desertion 
should  be  removed.     C.  3891,  Mar.  10, 1898;  16833,  Aug.  31, 1904. 

XVI  D  1  e.  A  volunteer  soldier,  having  enlisted  in  1861  for  three 
years,  deserted  in  1862  and  within  a  month  enlisted  in  the  Navy  for 
one  year,  from  which  enlistment  at  the  expiration  thereof  he  received 
an  honorable  discharge.  He  thus  escaped  in  fact  one  year's  service 
under  his  Army  enlistment.  Held  that  his  thus  avoiding  one  year's 
service  was  not  a  gratuity  within  the  meaning  of  section  3  of  the  act  of 
March  2,  1889,  anddid  not  preclude  the  removal  under  that  section  of 
the  charge  of  desertion.  C.  163,  Aug.  20,  1894;  ^090,  Apr.  19,  1897; 
10722,  Jan.  21,  1901;  I424I,  Mar.  2,  1903. 


DESERTION   XVI   D  1  f .  423 

During  the  Civil  War  a  soldier  deserted.  If  he  had  not  done  so  he 
vvoulcl  have  been  entitled  to  a  bounty  of  $400.  After  desertion  he  en- 
listed in  the  Navy,  and  the  total  of  the  bounties  credited  to  him  on 
that  account  was  $700.  Held  that  under  section  3  of  the  act  of  March 
2,  1889  (25  Stat.,  869),  his  enlistment  in  the  Navy  was  for  the  purpose 
of  securing  the  additional  bounty  and  that  therefore  the  charge  of 
desertion  can  not  be  removed.     C.  1/^31,  Mar.  4,  1903. 

XVI  D  1  f.  Section  7  of  the  act  March  2,  1889  (25  Stat.  869),  pro- 
vides that  the  charge  of  desertion  shall  not  be  removed  if  the  soldier 
left  his  command  while  in  arrest  or  under  charges  for  breach  of  military 
duty.  Where  a  soldier  deserted  in  1865,  while  in  arrest  and  under 
charges  for  breach  of  military  duty,  after  the  expriation  of  his  term  of 
enlistment,  it  was  held  that  he  was  still  a  soldier  at  the  time  he  de- 
serted and  that  therefore  the  section  named  applied  in  his  case  and 
precluded  a  removal  of  the  charge  of  desertion.  C.  3099,  Apr.  12, 
1897. 

XVI  D  1  g.  By  section  13,  of  the  enrollment  act  of  March  3,  1863 
(12  Stat.  731),  a  drafted  man  who  failed  to  report  to  the  board  of  en- 
rollment was  declared  ''  a  deserter''  and  triable  therefor  by  court- 
martial.  Held  that  this  section  imposed  upon  him  the  single  duty  of 
reporting  to  the  enrollment  board,  and  to  that  extent  and  for  that 
purpose  only  gave  him  a  military  status ;  that  prior  to  his  acceptance 
or  rejection  by  the  board  he  was  not  fully  in  the  militarjr  service  of 
the  United  States,  nor  a  soldier  within  the  ordinary  meaning  of  that 
term.  Where  such  a  drafted  man  failed  to  report  and  subsequently 
within  four  months  enlisted  elsewhere,  lield  upon  an  application  by 
him  to  have  the  charge  of  desertion  removed  under  the  act  of  March  2, 
1889,  that  not  being  a  soldier  in  the  mihtary  service  within  the  mean- 
ing of  the  act  at  the  time  he  became  a  '^  deserter,"  the  same  did  not 
apply  to  his  case  and  that  therefore  the  charge  could  not  be  removed. 
C.  2041,  2042,  May,  1896. 

XVI  D  2.  The  act  of  May  17,  1886  (24  Stat.  51),  provided  that, 
where  a  soldier  of  the  Civil  War  deserted  from  one  organization 
and  within  three  months  enlisted  in  another,  the  charge  of  deser- 
tion, if  certain  facts  were  shown,  should  be  removed  and  a  certificate 
of  discharge  issued  from  the  organization  in  which  he  first  served. 
Held  that  the  purpose  of  this  legislation  was  to  change  the  status  of 
beneficiaries  under  it  from  that  of  deserters  to  that  of  soldiers  honor- 
ably discharged  as  of  the  date  of  their  desertion.     C.  2090,  Mar.,  1896. 

XVI  E.  A  deserter  was  restored  to  duty  without  trial.  Held  that 
this  did  not  operate  as  an  acquittal  or  to  remove  the  charge  of  deser- 
tion. C.  4076,  Apr.,  1898;  18678,  Oct.  10, 1905;  18678,  Oct.  11,  1905; 
14398,  Sept.  26, 1907. 

XVI  F.  A  soldier  was  tried  and  acquitted  by  a  regimental  court- 
martial  of  the  charge  of  desertion.  Held  that  the  acquittal  did  not 
operate  to  remove  the  charge  of  desertion,  since  the  court  was  without 
jurisdiction.     C.  995,  Feb.  15,  1895;  27004,  July  11,  1910. 

XVII  A.  A  deserter's  release  is  intended  for  deserters  in  whose  favor 
the  limitation  of  the  present  one  hundred  and  third  article  of  war  has 
fully  run  and  who  therefore  have  a  perfect  defense  to  a  prosecution. 
P.  52,  326,  Mar.  1892;  61,  430,  Sept.,  1893;  62,  1,  Oct.,  1893;  63,  30, 
Dec,  1893,  and  347,  Feb.,  1894;  C.  96,  July,  1894;  4130,  May  17, 
1898;  21367,  Apr.  12,  1907;  14163,  Feb.  4,  1909,  and  Mar.  25,  1911; 
15257,  Mar.,  11,  1908. 


424  '  DESERTION   XVII  A  1. 

XVII  A  1.  The  so-called  ''deserter's  release,"  provided  for  by  Gen- 
eral Orders  55  of  1890,  is  accorded  when,  by  reason  of  the  period 
which  has  elapsed  since  the  end  of  his  term  of  enlistment,  the  deserter 
could  successfully  plead  the  statute  of  limitation  to  a  prosecution  for 
his  desertion.  This  period  is  complete  at  the  expiration  of  two  years 
from  the  end  of  his  term  of  enlistment,  exclusive  of  absences  mean- 
while from  the  United  States.  But  where  a  soldier,  who  would  have 
been  eligible  for  such  release  on  May  9,  1894,  was,  in  February  pre- 
ceding, arrested,  brought  to  trial,  convicted,  and  sentenced  to  be  dis- 
honorably discharged,  and  was  so  discharged  accordingly,  held  that  he 
was  not  within  the  privilege  of  the  general  order,  and  that  the  release 
could  not  be  accorded  him.^  P.  65,  J89,  June,  1894;  G-  4^30,  May, 
1898;  11508,  Nov.  7, 1901;  12563,  May  6, 1902;  15257,  Jan.  28, 1909. 

XVII  B.  A  soldier  who  had  been  dishonorably  discharged  applied 
for  a  deserter's  release.  Held  that  he  does  not  belong  to  the  class  of 
persons  for  whom  it  is  intended.  ^  P.  63,  32,  Bee,  1893. 

XVII  C.  A  deserter's  release  is  designed  for  soldiers  actually  in 
service.  Held  therefore  that  it  can  not  be  given  to  one  who  was  a 
soldier  of  a  volunteer  organization  during  the  War  of  the  Rebellion, 
which  organization  has  been  mustered  out.  P.  62,  1,  Oct.,  1893; 
a  15460,  Nov.  5,  1903. 

XVII  D.  A  deserter's  release  was  requested  in  the  case  of  a  soldier 
who  had  died.  Held  that  it  can  not  be  issued  in  such  a  case.  P.  52, 
326,  Mar.,  1892;  C.  11850,  Jan.  6,  1902;  15154,  Aug.  24,  1903; 
15417,  Oct.  24,  1903;  15607,  Dec.  10,  1903;  17034,  Oct.  20,  1904; 
17294,  Dec.  24,  1904;  17609,  Mar.  21,  1905. 

XVII  E.  As  the  deserter's  release  is  issued  only  to  men  who  can 
successfully  plead  the  limitation  of  the  one  hundred  and  third  article 
of  war,  held,  that  it  should  not  be  given  where  a  desertion  was  com- 
mitted in  time  of  war.  C.  96,  July  27,  1894;  IO4I6,  May  24,  1901, 
and  July  I4,  1909;  11850,  Jan.  4,  1902;  6384,  Apr.  30,  1903;  11802, 
May  10, 1905;  15154,  Aug.  24,  1903;  12563,  July  30,  1909;  15417, 
Oct.  24,  1903;  18023,  May  10,  1905;  21367,  Apr.  12,  1907. 

XVII  F.  The  purpose  of  the  deserter's  release  is  to  release  a  soldier 
''from  liability  to  arrest,  and  from  trial  and  punishment  by  court- 
martial  for  his  desertion."  Held  that  the  deserter's  release  does  not 
serve  as  a  discharge  from  the  Army  and  that  the  language  used  in 
describing  it  in  General  Orders  55,  1890,  viz:  ''Release  from  the 
Army,"  as  faulty,  as  the  release  is  not  a  discharge  certificate  and  is 
not  evidence  of  discharge,  and  is  not  furnished  to  soldiers. ^  P.  52, 
326,  Mar.,  1892;  61,  430,  Sept.,  1893;  62,  1,  Oct.,  1893;  63,  30,  Dec, 
1893,  and  347,  Feb.,  1894;  CI.  13896,  Mar.  28,  1903;  21367,  Apr.  12, 
1907;  14163,  Feb.  4,  1909;  24691,  Mar.  20,  1909. 

XVII  G.  Held  that  as  the  deserter's  release  is  not  a  discharge  cer- 
tificate from  the  Army,  it  should  be  prepared  in  such  a  way  as  to 
preclude  the  claim  that  its  delivery  operates  as  an  actual  discharge 
from  the  service.  P.  63,  247-354,  Feb.,  1894;  O.  15460,  Nov.  4, 
1903;  16064,  Mar.  22,  1904;  17807,  Apr.  11,  1905;  21367,  Apr.  12, 
1907. 

^  See  Circ.  5,  A.  G.  O.,  1894,  as  to  the  purpose  and  effect  of  the  "  release." 
2  Circular  No.  5,  Headquarters  of  the  Army,  A.  G.  O.,  Mar.  28,  1894,  states  that  the 
deserter's  release  also  relieves  the  Government  from  the  expense  of  apprehending  those 
deserters  who  by  reason  of  the  one  hundred  and  third  article  of  war  can  not  be  tried 
for  their  desertions  and  at  the  same  time  serves  to  protect  them  from  the  arrest. 


DESERTION    XVII   H.  425 

XVII  H.  The  proper  course  for  a  deserter  to  pursue  in  order  to 
secure  a  '* Deserter's  Release"  is  to  surrender  himself  to  the  military 
authorities  at  the  place  nearest  to  his  residence  and  make  application 
to  the  Adjutant  General  of  the  Army  for  a  deserter's  release,  accom- 
panied by  an  affidavit  setting  forth  the  fact  that  he  has  remained 
constantly  in  the  United  States  since  his  desertion,  supported  by 
such  other  affidavits  ^  as  he  may  be  able  to  obtain  to  establish  this 
fact.  Thereupon  a  deserter's  release  issues  as  a  matter  of  course 
upon  the  establishment  of  these  facts.     C.  14163,  July  11,  1911. 

XVIII  A.  A  question  arose  as  to  whether  a  soldier's  desertion,  com- 
mitted on  Octooer  25,  1898,  was  or  was  not  in  time  of  war.  Held 
that  as  the  desertion  had  been  committed  prior  to  the  exchange  of 
ratification  it  was  in  time  of  war.^  0.  15417,  Oct.  23,  1903;  16064, 
Apr.  21, 1904;  16254,  Apr.  28  and  July  11, 1904;  17034,  Oct  21, 1904, 
July  30,  1908,  and  Feb.  11,1911;  17349,  Jan.  5,  1905. 

XVIII  B.  When  the  United  States  is  engaged  in  war  under  cir- 
cumstances where  the  theater  of  operations  is  outside  the  territorial 
hmits  of  the  United  States,  held  that  it  is  ''time  of  war"  at  home  as 
well  as  abroad.     C.  4050,  Apr.  23,  1898. 

XIX  A.  A  soldier  was  responsible  for  certain  Government  property. 
He  deserted.  The  property  disappeared  at  the  same  time.  He  was 
apprehended  and  charged  inter  alia  with  stealing  the  property,  and 
acquitted  of  that  offense.  Held,  that  such  acquittal  did  not  relieve 
him  from  responsibility  for  the  loss  of  the  Government  property  as 
the  loss  was  caused  by  his  desertion  as  found  by  a  board  of  survey. 
a  721,  Dec,  1894. 

XX  A.  An  officer  left  his  post  on  a  three  days'  leave  of  absence  and 
did  not  return  to  duty  or  report  himself  at  the  proper  time,  but 
absconded  to  Canada  with  a  large  amount  of  Government  funds. 
He  was  subsequently  arrested  in  the  United  States.  Held  that  he  was 
clearly  chargeable  w^ith  the  offense  of  desertion.     R.  3,  230,  July,  1863. 

XX  B.  An  officer  who  had  become  involved  in  debt  and  was  sus- 
pected of  embezzlement  and  fraud  and  who  was  about  to  be 
placed  in  arrest  and  obtained  by  false  representations  a  brief  leave  of 
absence  from  his  post  for  the  express  purpose  of  visiting  a  certain- 
named  place,  was  subsequently  apprehended  at  another  place  much 
more  distant  than  that  designated  and  while  rapidly  traveling  en  route 
to  a  still  more  remote  locality.  Held,  in  the  absence  of  any  evidence 
to  rebut  the  presumption  thus  raised,  that  he  was  properly  charge- 
able with  having  absented  himself  with  the  animus  of  a  deserter. 
R.  38,  622,  June,  1877. 

XX  C.  Held  that  the  effects  of  a  commissioned  officer  who  lias 
deserted  w411  be  collected  the  same  as  those  of  an  enlisted  man  and 
win  be  regarded  as  abandoned  and  so  treated.  C.  17191,  Dec.  19, 
1904. 

XX  D.  The  President  is  authorized  to  drop  from  the  rolls  of  the 
Army  as  a  deserter  any  officer  who  is  absent  from  duty  three  months 
without  leave.  (1229,  R.  S.,  as  amended  by  act  of  Jan.  19,  1911 
(36  Stat.,  894) .)  Held  that  when  the  President,  acting  under  this  law, 
reaches  the  conclusion  that  an  officer  has  deserted,  no  court  can 
review  his  decision. 3     0.  12489,  May  1,  1902. 

1  See  G.  O.  No.  55,  Headquarters  of  the  Army,  A.  G.  0.,  Washington,  May,  26,  1890. 

2  Exparte  Ortiz,  100  Fed.  Rep.,  955;  Ribas  y  Hijo,  194  U.  S.,  315. 
^  18  Ot.  Cls.,  435,  Apr.  23,  1883. 


426  DESEETION DETAIL. 

XX  E.  Held  that  after  the  President  has  dropped  an  officer's  name 
from  the  rolls  pursuant  to  the  authority  contained  in  section  1229, 
R.  S.,  the  officer  is  fully  separated  from  the  military  service,  and, 
being  a  civilian,  there  is  no  question  as  to  the  statute  of  limitations 
running.     C.  15752,  Jan.  9,  1904,  arid  Mar.  16,  1909. 

XX  F.  An  officer  was  dropped  for  desertion  under  the  first  clause 
of  section  1229,  R.  S.  He  later  applied  for  a  trial  under  section  1230, 
R.  S.  Held  that  the  provision  of  section  1229,  R.  S.,  which  makes 
such  a  deserter  ineligible  for  reapj)ointment  in  the  Army,  was  incom- 
patible with  his  restoration  by  action  of  a  court-martial  under  section 
1230,  R.  S.,  and  that  that  section  applies  only  to  officers  dismissed 
by  order  of  the  President  under  the  general  power  to  remove  public 
officers  appointed  by  him  and  frequently  exercised  in  cases  of  Army 
officers  in  time  of  war,  but  which  power  in  time  of  peace  has  been 
removed  by  the  act  of  July  13,  1866,  which  was  incorporated  in  the 
Revised  Statutes  as  the  second  part  of  section  1229.  R.  ^2,  'page  4^6, 
Dec.  3,  1879. 

XXII  A.  Under  the  system  of  enlistment  in  which  applicants  are 
not  enlisted  until  they  reach  the  recruit  depot,  if  an  applicant,  after 
having  been  furnished  transportation  and  subsistence  for  the  journey 
from  the  recruiting  station  to  the  recruit  depot,  elopes,  and  does  not 
report  at  the  recruit  depot,  held  that  as  he  has  not  yet  been  enlisted 
he  is  not  a  deserter,  but  that  he  has  violated  section  36  of  the  Criminal 
Code  (35  Stat.,  1096,  act  of  Mar.  4,  1909)  m  that  he  has  embezzled 
United  States  property  furnished  him  for  use  in  the  military  service.* 
C.  20694,  ^pr.  30,  1908,  to  Aug.  12,  1911. 

CROSS    REFERENCE. 

Advising  or  persuading  to See  Articles  of  War  LI  A. 

Civilian  employees See  Civilian  Employees  XIV  to  XV. 

Effect  on  deposits Sec  Pay  and  Allowances  I  C  7  a. 

Elements  of See  Absence  II  B  1, 

Evidence  of. See  Articles  of  War  L  A. 

Not  a  discharge See  Discharge  XIII  A  2. 

Previous  convictions  of. See  Discipline  XII  B  1  a  (1). 

Statute  of  limitations See  Articles  of  War  CIII  F  1  to  6. 

Time  of  war See  Pardon  XII. 

Trial  for See  Discipline  III  E  3  a. 

Wit7i€sses  in See  Discipline  X  A  1. 

DETAIL. 

See  Army  I  G  3  a  to  c. 

Away,  of  battalion  staff  officers See  Office  IV  G. 

College  duty See  Military  Instruction  II  B  1  to  2. 

Tostaff. See  Office  III  D  1  to  2. 

^  Several  men  who  have  thus  eloped  have  been  charged  with  embezzlement  in  vio- 
lation of  sec.  6439,  R.  S.,  tried,  convicted,  and  punished. 

See  Circular  No.  91,  War  Department,  Nov.  17,  1908,  for  a  case  which  was  tried 
in  the  United  States  District  Court,  Northern  District  of  Texas,  Mar.  30,  1909.  Other 
cases  are  as  follows:  In  the  United  States  District  Court,  Eastern  Division,  Northern 
District  of  Illinois,  July  term,  1909;  in  the  United  States  District  Court,  Southern 
Division,  Western  District  of  Missouri,  October  term,  1909;  in  the  United  States 
Circuit  Court,  Northern  District  of  Georgia,  May  3,  1910;  in  the  United  States  District 
Court,  Western  District  of  Oklahoma,  September  term,  1910.  Convictions  were 
secured  in  all  these  cases  and  sentences  given  varying  in  severity  from  a  fine  of  $100 
and  five  months'  confinement  to  a  fine  of  $1,000,  with  confinement  until  paid. 


DETAILED   STAFF — DISCHARGE:   SYNOPSIS.  427 

DETAILED   STAFF. 

Command  by See  Command  V  B  4. 

Office  in See  Office  III  D  to  E. 

Army  I  G  3  a  to  c. 

Ordnance  Department See  Army  I  G  3  b  (4)  (6) ;  (c). 

Rank  of  officers See  Rank  I  C  to  D. 

Retirement  of  officers See  Rank  I  C  2. 

DIET. 

For  patients  in  hospital See  Army  I  G  3  d  (8)  (c)  [1]. 

DIPLOMATIC   OR   CONSULAR   SERVICE. 

Retired  officer^  s  ineligibility  for See  Retirement  I  G  2  f;  3  a  (2)  (a). 

DIPLOMATIC   SERVICE. 

Official  of,  to  caitse  deposition  to  be  taken See  Articles  of  War  XCI  D. 

Retired  officer's  ineligibility  for See  Retirement  I  G  2  f. 

DISAPPROVAL. 

Grounds  for,  of  sentence See  Discipline  V  G  1;  XIV  E  9  a  to  b. 

Effect  of See  Discipline  XIV  E  9  b  to  c. 

Of  acquittal See  Discipline  XIV  E  9  b  (2). 

Desertion  V  E  2. 

Of  charge  under  seventeenth  article  of  war See  Pay  and  Allowances  III  C  2  d. 

Of  conviction  of  deserter See  Desertion  V  E  1;  3;  XIV  A  2;  A  5. 

Of  sentence,  same  as  acquittal See  Articles  of  War  XLVIII  C  2 ;  4. 

Retiring  board  finding See  Retirement  I  B  3  b. 

DISBI]JlSIlirG   OFFICER. 

See  Public  money  II  to  III, 

Bonds  of. See  Bonds  II  to  III. 

Can  not  withhold  money  from  contractor  to 

pay  tax See  Tax  IV  A. 

Congressional  relief  for See  Army  I  B  6  b. 

Court  of  Claims,  right  to  enter See  Claims  XII  Q. 

Embezzlement  by See  Articles  of  War  LXII  C  2. 

Forged  vouchers See  Public  Property  I  F  1. 

Gambling  in  stocks See  Articles  of  War  LXII  E. 

Philippine  funds See  Office  IV  A  2  d  (2)  (a). 

Refusing  to  transfer  funds See  Articles  of  War  LX  A  4. 

State See  Militia  VI  B  1  c  to  2;  X  B;  C;  E: 

XIV  C. 

DISCHARGE. 

I.  CLASSIFICATION. 

A.  Honorable,  Without  Honor  and  Dishonorable Page  4S3 

n.  HONORABLE. 

A.  Officers. 

1.  Unless  evidence  to  the  contrary,  discharge  is  honorable. 

2.  No  reason  mentioned,  discharge  is  honorable. 


428  discharge:  synopsis. 

n.  HONORABLE— Continued. 

B.  Enlisted  Men — What  Necessary  to  Secure  Honorable  Discharge? 

1.  Unless  evidence  to  the  contrary,  discharge  is  honorable. 

2.  A  deserter  may  receive  an  honorable  discharge Page  434 

a.  Policy  of  War  Department  as  to  discharge  of  deserters. 

3.  Soldier  in  hands  of  civil  authorities  may  receive  an  honorable  dis- 

charge. 

4.  Soldier  against  whom  no  derogatory  remark  on  muster  roll  at  muster 

out  entitled  to  honorable  discharge. 

5.  Soldier  sent  away  from  Army  without  discharge  certificate. 
m.  WITHOUT  HONOR. 

A.  Origin Page  435 

B.  Discharge  Without  Honor  is  Not  a  Punishment. 

1.  Soldier  charged  with  theft. 

2.  Soldier  charged  with  sodomy. 

3.  Soldier  charged  with  indecent  proposals  to  a  girl Page  436 

4.  Not  to  be  discharged  for  offense  of  which  he  has  been  acquitted. 

5.  Not  to  be  discharged  for  offense  for  which  he  has  been  punished. 

a.  Exception:  Sentence  set  aside  on  account  of  faulty  pro- 
cedure. 

C.  When    Disqualified   for    Service    Physically   or   in    Character 

Through  His  Own  Fault,  Discharge  Without  Honor  Not  to  be 
Given  at  Expiration  of  Term  of  Service. 

D.  Soldier  in  Confinement  by  Sentence  of  Summary  Court  at  Expi- 

ration  OF   Enlistment    Not   Sufficient   Cause    for    Discharge 
Without  Honor. 

E.  When   Service   Not  Honest  and    Faithful,  Enlistment  May  be 

Terminated  by  Discharge  Without  Honor. 

F.  Cases  in  Which  Discharges  Without  Honor  Have  Been  Given. 

1.  Enlisted  men Page  437 

2.  Cadets Page  439 

3.  Officers • Page  440 

G.  Discharge  of  Organizations  Without  Honor. 
IV.  DISHONORABLE. 

A.  Given  Only  by  Sentence  of  General  Court-Martial  as  Punish- 

ment. 

B.  Entails  no  Disqualification  for  Civil  Employment. 

C.  Sentence  to  Imprisonment  in  Penitentiary  Involves  Dishonor- 

able Discharge. 

D.  Entails  Loss  OF  All  Rights  Conditioned  ON  Honest  and  Faithful 

Service. 

E.  Terminates  Any  Existing  Sentence  to  Confinement  as  a  Soldier. 
V.  ON  CERTIFICATE  OF  DISABILITY. 

A.  Honorable  if  Disability  is  in  Line  of  Duty Page  441 

B.  Honorable  if  Disability  Existed  at  Enlistment,  But  no  Fraud 

IN  Enlistment. 

C.  Discharge    by    Favor    Not    Conclusive   That   There    Was    Not 

Disability. 

D.  Of  Insane  Soldiees. 


dischabge:  synopsis.  429 

VI.  BY  WAY  OF  FAVOR. 

A.  Illegal  Except  on  Account  op  Dependent  Parent. 

B.  Veteran's  Discharge. 

C.  Dependent  Parent. 

1,  Given  if  case  comes  within  spirit  but  not  letter  of  law. 

2.  Not  given  to  general  prisoners. 

D.  By  Purchase. 

1 .  Law  authorizes  discretion  to  President Page  442 

2.  Rules  in  Army  Regulations.     Privilege  may  be  withheld. 

3.  Absence  without  leave  not  counted  in  computing  time. 

4.  Honorable  for  naturalization  purposes. 

5.  As  regards  character  and  service  treated  same  as  other  discharges. 

6.  Possible  inclusion  of  Philippine  Scouts,  matter  of  policy. 

7.  Marine  service  not  counted. 
Vn.  BY  CIVIL  COURTS. 

A.  Secretary  op  War  Causes  Certipicate  to  be  Issued. 

B.  State  Court  Without  Jurisdiction  to  Discharge Poge  443 

Vm.  CONSTRUCTIVE  DISCHARGE. 

A.  Recruiting  Officer  Told  a  Recruit  to  go  Home  and  There  Await 
Summons,  Which  Was  Never  Sent. 
IX.  DISCHARGE  AT  END  OF  WAR. 

A.  Act  op  April  22,  1898  (30   Stat.  361),  Did  Not  Give   Individuals 

Right  to  Claim  Discharge. 

B.  General  Order  40,  1898,  Authorized  Discharge  at  End  of  War, 

But  Gave  no  Direction  in  Regard  to  Character  or  Travel 
Pay. 

C.  Soldier  Should  Take  Advantage  of  Privilege  op  General  Order 

40,  1898,  Within  a  Reasonable  Time Page  444 

D.  A  Soldier's  Waiver  Upon  Enlistment  of  Rights  Under  General 

Oder  40,  1898,  op  no  Effect. 

E.  General  Order  40,  1898,  Not  Intended  to  Relieve  Men  of  Con- 

sequences OF  Military  Offenses. 
X.  DISCHARGE  FOR  BENEFIT  OF  THE  GOVERNMENT. 

A.  The  Giving  op  This  Discharge  Rests  Upon  Grounds  of  Expe- 

diency. 

B.  For  Convenience  of  the  Government. 
XI.  CHARACTER. 

A.  Notation  of  on  Certificate. 

1.  Refers  to  character  both  as  man  and  as  soldier Page  445 

2.  Regulations  relative  to  board  of  officers  directory  only. 

B.  Honest  and  Faithful. 

1.  Board  of  officers  called  only  in  case  of  discharge  at  expiration  of 

term  of  enlistment. 
a.  Soldier  in  confinement  at  expiration  of  term  entitled  to  a 
board. 

2.  Consensus  of  opinion  of  company  commander,  board ,  and  convening 

authority  required  to  rate  service  as  "not  honest  and  faithful." 

3.  Secretary  of  War  has  discretion  to  rate  service  as.  "honest  and 

faithful." 

4.  A  nonfraudulent  enlistment  of  dishonorably  discharged  soldier 

does  not  render  service  "not  honest  and  faithful  " Page  446 


430  discharge:  synopsis. 

XI.  CHARACTER— Continued. 

B.  Honest  and  Faithful — Continued. 

5.  If  service  "honest  and  faithful, "  honorable  discharge  must  be 

given. 

6.  Avoiding  tour  of  duty  in  Philippine  Islands  renders  service  "not 

honest  and  faithful." 

7.  Continuing  association  with  a  strumpet  after  orders  to  stop  renders 

service  "not  honest  and  faithful." 

8.  Arrest,  conviction,  and  confinement  by  civil  court,  renders  service 

"not  honest  and  faithful." 

C.  Objection  to  Enlistment. 

1.  Some  of  the  grounds  upon  which  it  may  be  based. 
Xn.  DISCHARGE  OF  MINOR. 

A.  Enlistment  of  Minor  Can  be  Avoided  on  That  Ground,  Only  Upon 

Application  of  Parent  or  Guardian. 

B.  Age,  How  Shown. 

1.  Soldier  born  in  United  States Page  447 

2.  Soldier  born  in  Bermuda. 

C.  Emancipated  Minor. 

1.  When  married. 

2.  Parent  domiciled  outside  of  United  States. 

D.  Policy. 

1.  Procedure  when  parent  requests  discharge  of  minor  son. 

2.  Soldier  punished  for  military  offenses  before  application  for  his 

discharge  will  be  entertained Page  448 

Xm.  DATE  OF  DISCHARGE. 

A.  Soldier  Entitled  to  Discharge  at  Expiration  of  Term  of  Enlist- 

ment. 

1.  Soldier  can  not  discharge  himself. 

2.  Desertion  does  not  operate  as  discharge. 

B.  Soldier  Held  in  Service. 

1.  Date  of  actual  separation  from  the  service. 

C.  Soldier  Can   Not  be   Discharged  Before   Separation  from  the 

Service. 

D.  Soldier  Discharged  When  Notice  is  Given  to  Him  of  His  Discharge. 

1.  Actual  and  constructive  notice. 

2.  Certificate  not  only  means  of  giving  notice Page  449 

3.  Case  of  soldier  sick  in  hospital. 

4.  Insane  soldiers. 

a.  With  and  without  lucid  intervals Page  450 

(1)  At  Government  Hospital. 

b.  Insane  Philippine  Scouts  in  Philippine  Islands. 

5.  Sentence  of  death  commuted   to   imprisonment  for  life — date  of 

notice  is  date  of  dishonorable  discharge. 

6.  Soldier  in  confinement. 

a.  By  civil  authorities. 

b.  Soldier  awaiting  trial. 

7.  Soldier  sentenced  to  dishonorable  discharge Page  451 

8.  Soldier  escapes  during    trial    by  general  court  martial,   which 

sentences  him  to  dishonorable  discharge. 

9.  Commissioned  officers. 

a.  Date  of  discharge  mentioned  in  order. 

b.  Senate  fails  to  confirm  appointment  of  officer. 


discharge:  synopsis.  431 

Xm.  DATE  OF  DISCHARGE— Continued. 

E.  No  Certificate  Furnished. 

1.  Illegal  sentence  of  general  prisoner  who  had  been  volunteer  sol- 

dier declared  null  and  void  after  regiment  had  been  mustered 
out Page  452 

2.  Soldiers  ordered  dropped  from  roll  by  department  commander. 

3.  Soldier  ordered  set  at  liberty  by  department  commander. 

F.  Rule  for  Volunteers,  Including  Deserters. 
HV.  CERTIFICATE  OF  DISCHARGE. 

A.  Original. 

1 .  Certificate  is  legal  evidence  of  discharge. 

2.  Soldier  in  desertion  when  volunteers  were  mustered  out  in  Civil 

War Page453 

3.  WTio  signs  certificate? 

4.  Beneficiaries  under  act  of  February  24, 1897  (29  Stat.,  593)  entitled 

to  discharge  certificate.    ' 

5.  A  certificate  that  lacks  signature  can  later  be  completed. 

B.  Duplicate  Certificate. 

1.  Case  of  soldiers  who  served  under  assumed  names  in  Civil  War. 

2.  Erroneous  entries  made  on  discharge  after  its  issue. 

3.  A  parchment  duplicate  may  be  furnished  when  original  certificate 

is  made  on  paper. 

4.  Section  224,  R.  S.,  is  limited  to  soldiers  of  Civil  War Page  454 

C.  Second  Duplicate  Certificate. 

1.  A  second  duplicate  may  be  issued  if  first  is  lost  or  destroyed. 

D.  Certificate  of  Service. 

1.  Furnished  upon  proof  of  loss  of  discharge  certificate. 

2.  Fiunished  when  discharge  certificate  is  rendered  illegible. 

3.  Soldier  absent  in  Japan  when  regiment  mustered  out. 

4.  Furnished  to  medical  cadet  who  lost  his  discharge  certificate. 

5.  Furnished  man  Avho  was,  through  mistake,  unjustly  given  discharge 

without  honor Page  455 

XV.  EXECUTED  DISCHARGE  NOT  REVOCABLE. 

A.  A  Legal  Honorable  Discharge  Not  Revocable. 

1.  Case  of  soldier  discharged  with  conditions  which  were  not  met 

by  Government. 

2.  An  ofiicer's  honorable  discharge  can  not  be  revoked  and  a  dis- 

honorable one  substituted.  Similarly  a  dishonorable  discharge 
can  not  be  revoked  and  an  honorable  one  substituted.  (See 
Discharge,  XVII  A.) 

B.  A  Legal  Dishonorable  Discharge  Not  Revocable Page  456 

C.  A  Legal  Discharge  Without  Honor  Not  Revocable. 

1.  Even  when  notice  is  constructive  and  man  is  a  prisoner. 

D.  Revoking  Order  Unauthorized  and  Illegal. 

1.  An  order  purporting  to  revoke  is  illegal  if  discharge  be  executed. 

a.  A  discharge  based  on  mistake  of  fact  as  to  status  of  man  is 

legal. 

b.  Officer  discharging  soldier  ignorant  of  fact  that  soldier  was 

under  charges — discharge  legal. 

c.  No  objection  to  noting  on  discharge  certificate  the  fact  that 

it  was  given  through  error  as  to  fact Page  457 


432  discharge:  synopsis. 

XVI.  DISCHARGE  MAY  BE  REVOKED. 

A.  When  Secured  by  Fraud. 

1.  Soldier  secured  by  fraud  a  delivery  of  his  discharge  held  in  escrow, 

2.  Soldier  secured  discharge  by  agreeing  to  reenlist. 

3.  Soldier  changed  term  of  enlistment  in  his  descriptive  list. 

4.  Soldier  secured  discharge  for  purpose  of  accepting  position  in 

civil  life. 

B.  Insane  Soldier. 

1.  When  soldier  is  insane  and  not  in  Government  Hospital  for  Insane, 

but  under  military  control Page  458 

2.  When  not  under  military  control. 

C.  When  Discharge  Given  is  op  Different  Class  Than  Ordered. 

1.  Through  clerical  mistake  in  preparation  of  discharge. 

2.  Through  mistake  in  interpreting  order  for  discharge. 

D.  A  Discharge  Issued  by  Incompetent  Authority  is  not  Binding 

ON  the  Government. 
1.  Discharge  issued  by  United  States  Commissioner. 

E.  An  Order  May  be  Issued  Revoking  a  Discharge  Before  the  Dis- 

charge is  Executed Page  459 

F.  If  a  Discharge  Has  Been  Issued  in  Favor  of  a  Man  Who  is  in 

Hands  of  Civil  Authorities  it  May  be  Revoked  if  he  is  Finally 
Acquitted. 

G.  Dishonorable  Discharge — Illegal,  Sentence  Revoked. 

1.  Soldier  returned  to  duty  without  trial. 

2.  Soldier  brought  to  trial  on  original  charges. 

3.  Soldier  discharged  ^dthout  honor. 

4.  Status  of  man  same  as  before  trial Page  460 

5.  Sentence  of  court  of  enlisted  men  illegal;  discharge  revoked. 
H.  Revoked  by  Act  of  Congress. 

XVn.  OFFICER.     (See  also  Discharge,  XXI.) 

A.  Dismissal  Not  Revocable. 

B.  Medical  Officer  Discharged  After  Failure  to  Pass  Examination. 
XVm.  CADETS. 

A.  Dismissal  Not  Revocable. 
XIX.  SECRETARY    OF    WAR    MAY    RECALL    A    DISHONORABLE    DIS- 
CHARGE AND  ISSUE  AN  HONORABLE  ONE  AND  CORRECT  REC- 
ORDS ACCORDINGLY  UNDER  ACT  OF  CONGRESS Page  461 

XX.  WHO  CAN  DISCHARGE. 

A.  Revocation  by  President   of   Appointment  of   Officer  Amounts 

to  Discharge. 

B.  President  Can  Discharge  Officer  or  Enlisted  Man  of  Philippine 

Scouts  When  Service  is  no  Longer  Required,  but  not  as  a 
Punishment. 

C.  Department  Commander  Can  Discharge  Without  Honor  Soldiers 

Who  are  Serving  Sentences  of  Civil  Courts. 

D.  Certificate  of  Disability. 

1.  Department  commander  can  determine  nature  of  discharge  in  case 

of  disability. 

2.  District  commander  can  not  discharge  on  certificate  of  disability . 

E.  Authority    Not    Granted    Commanding    General    of    Philippines 

Division  to  Discharge  Without  Honor  Men  Who  After  Promise 
Fail  to  Reenlist Page  462 

F.  A  Court-Martial  Can  Not  Discharge  Soldier. 


DISCHARGE   I  A.  433 

m.  DISCHARGE    OF   COMMISSIONED   OFFICER.     (See  also  Discharge, 
XVII.) 

A.  An  Officer  Failed  on  Examination  and  was  Dismissed,  Wmcji 

WAS,  IN  Effect,  an  Honorable  Discharge. 

B.  Disability  May  be  Proven  Although  Officer  Not  Discharged  on 

That  Account. 
Xm.  A  DISCHARGE  TERMINATES  MILITARY  JURISDICTION  OVER  A 
SOLDIER. 

A.  An  Honorable  Discharge  and  a  Discharge  Without  Honor  Relate 

to  Current  Enlistment. 

B.  A  Dishonorable  Discharge  Covers  All  Unexpired  Enlistments. 
XXm.  OF  SEAMEN  IN  THE  TRANSPORT  SERVICE.  (See  Civil  Employees.) 
XXIV.  FROM  CIVIL  SERVICE.     (See  Civil  Employees.) 

XXV.  POST  NONCOMMISSIONED  STAFF  OFFICER. 

A.  Summary  Discharge. 
XXVI.  OF  ALIEN. 

A.  Will  Not  be  Given  to  Enable  Alien  to  Return  to  Native  Land 
to  Perform  Military  Duty Page  463 

I  A.  The  classification  of  discharges  has  never  been  assumed  by 
Congress,  but  has  been  left  by  it  to  the  Executive  branch  of  the  Gov- 
ernment. At  present  there  are  three  kinds  of  discharges  expressly 
recognized,  to  wit :  The  honorable,  the  dishonorable,  and  the  discharge 
without  honor.  C.  2731,  Nov.  9,  1896;  15368,  Oct  9,  1903;  20754, 
Nov.  23, 1906;  23259,  Apr.  9, 1909;  25915,  Dec.  10, 1909. 

II A  1.  An  ofiicer  failed  to  pass  a  satisfactory  examination  as  to  his 
qualifications  as  an  ofiicer  before  an  examining  board  duly  appointed 
by  the  department  commander  and  his  commission  was  revoked  by 
order.  Held  that  his  discharge  was  an  honorable  discharge  in  accord- 
ance with  this  rule,  viz,  in  the  absence  of  express  evidence  that  a  dis- 
charge was  given  on  account  of  unfitness  for  the  service  for  which  he 
was  culpably  responsible,  or  on  account  of  fraud  in  enlistment,  or  when 
the  person  discharged  was  in  a  status  of  dishonor,  i.  e.,  in  confinement 
under  the  sentence  of  a  general  court-martial  or  of  a  civil  court,  it 
should  be  held  to  be  honorable.     C.  270,  Sept.  28,  1894. 

II A  2.  An  ofiicer  tendered  his  resignation  without  stating  any 
reason  therefor  and  it  was  accepted  and  the  officer  discharged  without 
any  reason  being  stated.  Held  that  the  discharge  was  honorable.  C. 
2170,  Apr.  20, 1896;  2336,  June  15, 1896;  3569,  Oct.  4, 1897. 

II B.  Held,  that  to  entitle  an  enlisted  man  to  an  honorable  discharge 
he  must  have  rendered  the  honest  and  faithful  service  stipulated  for 
in  his  enlistment  contract,  and  at  the  instant  of  his  separation  from  the 
military  service  must  have  occupied  a  status  of  honor.  C.  6636, 
July  12, 1910. 

II  B  1 .  On  a  question  whether  a  discharge  by  order  (summary) 
was  of  the  class  designated  as  not  honorable,  i.  e.,  "without  honor," 
held  that  in  the  absence  of  express  evidence  that  such  discharge  was 
given  on  account  of  unfitness  for  the  service  for  which  the  person 
discharged  was  culpably  responsible,  or  by  reason  of  fraud  m  the 
enlistment,  or  when  the  person  at  the  time  of  his  discharge  was  in  a 
status  of  dishonor,  i.  e.,  in  confinement  under  the  sentence  of  a  general 
court-martial  or  of  a  civil  court,  the  discharge  should  be  deemed  hon- 
orable.    C.  270,  Sept.,  1894;  15358,  Oct  9,  1903;  822,  Mar.  8,  1904. 

31106°— 12 28 


434  DISCHARGE   II   B   2. 

II  B  2.  The  fact  that  a  soldier  has  been  a  deserter  does  not  preclude 
his  receiving  an  honorable  discharge,  if  either  he  be  restored  to  duty 
without  trial,  or  having  been  tried  and  sentenced,  he  3ret,  by  reason  of 
his  imprisonment  being  fully  executed  or  being  remitted  before  the 
end  of  his  term,  is  returned  to  duty  and  is  in  the  performance  of  faith- 
ful service  when  his  term  is  completed.  An  honorable  discharge  then 
given  to  him  is  an  authoritative  declaration  by  the  Government  that 
he  leaves  the  military  service  in  a  status  of  honor.  Thus  honorably 
discharged  he  can  not,  by  reason  of  his  having  formerly  deserted,  be 
deprived  of  any  rights  to  pay,  allowances,  or  bounty  usually  incident 
upon  honorable  discharge.^  R.  26,  484,  Mar.,  1868;  P.  43,  48,  Sept., 
1890;  C.  902,  Feb.,  1895;  15639,  Dec.  19,  1903;  I6644,  July  25,  I904. 

II  B  2  a.  A  soldier  deserted  and,  after  apprehension,  was  convicted 
and  ^iven  a  punishment  less  than  dishonorable  discharge.  Upon 
question  being  raised  as  to  the  character  to  be  given  him  upon  his 
discharge,  held  that  if  the  soldier's  service  should  continue  honest  and 
faithful  to  the  close  of  his  term  of  enlistment  he  might  be  discharged 
with  the  remark:  "Service  honest  and  faithful,"  and  the  further 
remark:  "No  objection  known  to  his  reenlistment. "  Held  further 
that  it  is  not  the  policy  of  the  War  Department  to  place  an  insuper- 
able barrier  to  a  man's  reformation  by  holding  that  no  matter  now 
honest  and  faithful  his  later  service  may  be,  a  fault  once  committed 
can  not  be  atoned  for,  and  attention  invited  to  the  fact  that  Congress 
intended  that  even  general  prisoners  should  have  an  opportunity  to 
redeem  themselves  and  be  allowed  to  return  to  an  honorable  career, 
as  evidenced  by  section  1352  R.  S.  (act  of  Mar.  3,  1873,  17  Stat.  583), 
which  permits  the  honorable  restoration  to  duty  of  general  prisoners 
in  case  the  same  is  merited,  which  law  was  enacted  at  a  time  when  dis- 
honorable discharge  was  not  given  until  after  the  confinement  por- 
tion of  a  sentence  had  been  executed.     C.  15639,  Dec.  19,  1903. 

II  B  3.  A  soldier  was  turned  over  to  the  civil  authorities  for  trial, 
it  appearing  that  at  least  six  months  would  elapse  before  his  case 
could  be  determined,  a  statement  having  been  made  that  the  evidence 
would  undoubtedly  lead  to  his  conviction.  Held,  that  there  was  no 
legal  objection  to  giving  him  an  honorable  discharge  at  end  of  enUst- 
ment.     C.  9819,  Feb.  12,  1901. 

II  B  4.  Company  K,  Fifth  Missouri  Volunteer  Cavalry,  was  mustered 
out  during  the  Civil  War  on  account  of  the  mutinous  conduct  of  some  of 
its  members.  The  muster  roll  contains  remarks  opposite  the  names 
of  20  of  them,  showing  complicity  in  the  mutinous  conduct.  Held,  in 
the  case  of  a  soldier  of  that  company  against  whom  no  derogatory 
remarks  are  made  on  the  record,  that  he  is  entitled  to  an  honorable 
discharge.     C.  9230,  Nov.  5,  1900. 

II  B  5.  A  soldier  immediately  after  enlistment  was  imprisoned  on 
suspicion  of  being  a  deserter  and  "bounty  jumper."  He  was  subse- 
quently released  and  sent  aw^ay  from  the  Army  without  a  certificate 
of  discnarge.  Held,  that  the  soldier  was  discharged,  and  upon  satis- 
factory proof  being  furnished  that  the  suspicion  against  him  was 
erroneous,  held,  further,  that  his  imprisonment  during  the  whole 
of  his  service,  being  through  no  fault  of  his  own,  did  not  deprive 
him  of  his  right  to  a  certificate  of  honorable  discharge.  It  was 
recommended  that  one  be  issued  to  him.     C.  1916,  Dec.  28,  1895. 

^  This  opinion  is  quoted  and  adopted  by  the  U.  S.  Supreme  Court  in  United  States 
V.  Kelly,  15  Wallace,  34,  36. 


DISCHARGE   III   A.  435 

III  A.  The  discharge  without  honor  is  given  in  the  cases  first 
specified  in  Circular  15,  Headc^uarters  of  the  Army,  1893,^  but  this 
circular  did  not  create  such  discharge;  it  merely  gave  it  a  name. 
Before  the  issue  of  the  circular  and  as  far  back  as  the  Civil  War  this 
kind  of  discharge  was  out  of  necessity  resorted  to.  Its  name  is  only 
important  as  a  recognition  of  a  discharge,  not  technically  dishonor- 
able, and  not  honorable  in  fact.  R.  10,  286,  Sept.,  1864;  (^-  ^^98,  May 
14,  1896;  10141,  Apr.  2,  1901.  It  might  not  be  going  too  far  to  say 
that  when  soldiers  were  summarily  ''dishonorably  discharged 
during  the  Civil  War  the  order  was  so  worded  simply  because  the 
soldier  had  done  something  to  disgrace  the  service  and  couk/  not  be 
in  fact  honorably  discharged.  P.  60,  241,  June,  1893.  Thus  where 
a  volunteer  solaier  under  arrest  for  desertion  was  ''dishonorably 
discharged"  by  order  on  account  primarily  of  the  desertion,  held, 
that  while  his  discharge  was  not  teciinically  dishonorable  it  was  what 
is  now  called  a  discharge  without  honor,  and  therefore  not  honora- 
ble. C.  2128,  Mar.  17,  1896.  The  term  also  covers  the  summary 
dismissal  of  an  officer.     P.  52,  403,  Mar.,  1892;  C.  1503,  Aug.  3,  1895. 

Ill  B.  The  estabhshed  rule  and  policy  of  the  War  Department  is 
not  to  discharge  -svithout  honor  men  charged  with  offenses  susceptible 
of  being  proved  before  a  court-martial.  C.  24OO4,  Apr.  5,  1909;  June 
11,  1910.  Held,  that  discharge  without  honor  is  not  a  punishment  ^ 
(P.  43,  176,  Oct.,  1890;  C.  17964,  May  18,  1905;  9362,  Nov.^  24,  1906; 
25915,  Dec.  10,  1909)  and  can  not  be  used  for  summarily  ridding  the 
service  of  undesirable  soldiers  who,  by  their  misconduct,  have  ren- 
dered themselves  hable  to  trial  by  court-martial.  Further  lield, 
that  the  fact  that  the  evidence  to  convict  is  difficult  to  secure  is  not 
sufiicient  to  set  aside  the  estabhshed  pohcy  of  the  War  Department 
as  regards  this  form  of  discharge  and  to  aeny  the  men  involved  an 
opportunity  to  make  a  defense  to  the  charges  brought  against  them. 
C.  24004,  Aug,  8,  1910,  Dec.  9,  1910;  19547,  Apr.  19,  1906;  24198, 
Dec.  7,  1908;  25833,  Feb.  28,  1911;  28556,  June  19,  1911. 

Ill  B  1.  The  commanding  general,  Army  of  Cuban  Pacification, 
requested  authority  to  discnarge  without  honor  a  sergeant  of  the 
Signal  Corps  on  account  of  misconduct,  viz,  cohabitation  with  a 
woman  of  ill  repute,  and  probably  being  an  accomplice  in  the  theft 
of  a  large  sum  of  money.  The  soldier  denied  the  alleged  wrongdoing. 
Held,  that  to  discharge  him  summarily  without  honor,  without  giving 
him  an  opportunity  to  present  a  defense,  would  appear  to  work  an 
injustice  and  to  establish  a  dangerous  precedent.  G.  22272,  Oct.  25, 
1907,  and  June  7,  1910.^ 

Ill  B  2.  Certain  soldiers  were  charged  with  the  crime  of  sodomy. 
Hdd  that  in  justice  to  them  they  should  not  be  discharged  without 
honor  but  should  be  tried  by  a  competent  court  by  whom  the  facts 
should  be  investigated.  C.  19547,  Apr.  19,  1906;  19539,  Apr.  18, 
1906. 

^  (a)  When  a  soldier  is  discharged  without  trial  on  account  of  fraudulent  enlistment. 
(6)  When  he  is  discharged  without  trial  on  account  of  having  been  disqualified  for 
service,  physically  or  in  character,  through  his  own  fault,  (c)  When  the  discharge 
is  on  account  of  imprisonment  under  sentence  of  a  civil  court,  (d)  When  at  the  time 
of  the  soldier's  discharge,  at  or  after  the  expiration  of  his  term  of  enlistment,  he  is  in 
confinement  under  the  sentence  of  a  general  court-martial  which  does  not  provide  for 
dishonorable  discharge. 

2  See  U.  S.  V.  Kingsley,  138  U.  S.,  87,  and  Reid  v.  U.  S.,  161  Fed.  Rep.,  469. 


436  DISCHARGE   III    B   3. 

Ill  B  3.  Recommendation  was  made  by  a  post  commander  that  a 
soldier  be  discharged  without  honor  on  account  of  having  made 
indecent  proposals  to  a  young  girl.  Held  that  it  would  not  be  proper 
to  so  discharge  him  unless  there  were  no  doubt  of  his  guilt.  C.  20615, 
Feb.  2,  1909  and  Aug.  27,  1909;  24OO4,  Sept.  2,  1911. 

Ill  B  4.  A  soldier  was  tried  hj  court-martial  for  offenses  which, 
upon  conviction,  would  have  justified  his  discharge,  but  having  been 
acquitted  by  the  court,  Tield,  that  his  discharge  without  honor,  pri- 
marily on  account  of  said  alleged  offenses  would  not  be  proper.  C. 
1068,  Feb.  1895;  2IfiOJ^,  Jan.  21,  1909. 

•Ill  B  5.  A  soldier  was  tried  b;^  court-martial  for  offenses  which, 
upon  conviction,  would  have  justified  his  discharge.  He  was  given 
a  punishment  less  than  discharge.  Held,  that  his  discharge  without 
honor  primarily  on  account  of  said  alleged  offenses  would  not  be 
proper.  C.  1512,  July  2,  1895;  15533,  Nov.  24,  1903;  2^103,  Dec.  10, 
1908;  25915,  Dec.  10  and  22,  1909. 

Ill  B  5  a.  Although  it  is  improper  to  discharge  a  soldier  without 
honor  on  account  of  charges  for  which  he  has  been  tried  and  con- 
victed, lield  that  the  discharge  without  honor  may  be  used  in  the  case 
of  a  soldier  who  has  been  convicted  of  desertion,  and  the  reviewing 
authority,  acting  not  on  the  merits  of  the  issue  but  because  of  defects 
in  procedure,  etc.,  sets  aside  or  mitigates  the  sentence.  C.  25915, 
Dec.  10,  1909. 

Ill  C.  A  soldier  who  had  been  tried  and  convicted  numerous  times 
by  court-martial  during  his  term  of  service  was  at  the  expiration 
thereof  given  a  certificate  of  cHscharge  "without  honor, "  for,  as  stated 
by  his  company  commander,  "being  disqualified  for  service  on  account 
of  cTiaracter  through  his  own  fault. "  Held,  that  the  condition  referred 
to  under  which  a  soldier  may  be  discharged  without  honor,  to  wit, 
"when  he  is  discharged  without  trial  on  account  of  having  become 
disqualified  for  service,  physically  or  in  character,  through  his  own 
fault,"  does  not  apply  to  the  case  of  a  soldier  discharged  by  reason  of 
expiration  of  term  of  service;  but  that  the  previous  convictions  could 
properly  have  been  considered  by  the  board  of  officers  provided  for 
by  the  "regulations  in  determining  whether  the  soldier's  service  had 
been  honest  and  faithful  and  upon  an  approved  finding  that  it  had  not 
been,  the  discharge  without  honor  could  have  been  given.  P.  65,  Ifi, 
May,  1894. 

Ill  D.  A  soldier  was  in  confinement  in  the  guardhouse  at  the  end 
of  his  term  of  enlistment  under  sentence  of  a  summary  court.  Held 
that  he  should  not  be  discharged  without  honor  for  this  reason,  as 
the  regulation  appfies  only  to  sentences  of  general  courts-martial.  C. 
12439,  Apr.  17,  1902,  Jan.  31,  1903,  July  25  and  Aug.  3,  1904. 

Ill  E.  If  a  soldier  commits  an  offense  of  so  serious  a  character  as  to 
warrant  his  discharge,  by  way  of  punishment,  charges  are  preferred, 
and  the  case  is  tried  by  general  court-martial.  Although  not  having 
committed  an  offense  of  sufficient  gravity  to  warrant  his  trial  by  court- 
martial,  the  conduct  of  a  soldier  may  be  such  as  to  warrant  the  termina- 
tion of  his  enlistment  contract  because  he  has  not  served  honestly 
and  faithfully.  Held,  that  in  such  a  case,  when  reasonable  efforts 
have  been  put  forth  with  a  view  to  the  correction  of  his  faults,  his 
enhstment  contract  may  be  annulled  in  the  manner  prescribed  in  the 


DISCHARGE   III   F  1.  437 

fourth  article  of  war,  by  a  discharge  without  honor.     C.  2075Jf,  Nov. 
23,  1906;  25915,  Dec.  10,  1909. 

Ill  F  1 .  It  will  be  instructive  to  note  some  of  the  reasons  for  which, 
based  on  the  opinions  of  tliis  office,  discharges  without  honor  have 
btHni  given. 

In  cases  of  soldiers: 

An  established  case  of  desertion,  where  the  soldier  was  not  fit  for 
service  and  it  was  not  advisable  to  bring  the  case  to  trial.  C.  4^40, 
Aug.  23,  189S;  6327,  Nov.  15,  1898;  6676,  Jan.  24,  1899;  6210,  Apr. 
11,  1899;  6593,  June  15,  1899;  7624,  Jan.  31,  1900;  18360,  Aug.  1, 
1905;  15533,  Apr.  1,  1907;  23491,  June  24,  1908;  23643,  July  15, 
1908. 

For  being  in  a  penitentiary  under  the  sentence  of  a  civil  court  at  the 
expiration  of  his  term  of  enlistment.  C.  6312,  Nov.  12,  1898;  21785, 
July  12,  1907;  23066,  Apr.  11,  1908. 

For  worthlessness.  C.  6837,  Feb.  8,  1899;  6981,  Mar.  I4,  1899; 
15065,  Aug.  6,  1903. 

Sentenced  to  confinement  in  a  worTcliouse.     C.  8555,  July  5,  1900. 

For  expressing  sympathy,  in  time  of  war,  with  our  enemies.  C. 
9744,  Feb.  1,1901. 

For  disease  contracted  through  misconduct  before  entering  into  the 
service.     C.  10922,  Aug.  3, 1901. 

For  refusing  to  permit  himself  to  be  vaccinated.  C.  11753,  Dec.  12, 
1901. 

Conviction  by  civil  courts  of  burglary  with  intent  to  commit  theft, 
a  12079,  Feb.  20,  1902. 

Convicted  of  homicide  by  civil  courts  in  Cuba,  and  later  pardoned. 
a  12631,  May  27,1902. 

For  inefficiency.     C.  15035,  Sept.  16,  1903. 

For  not  beiag  a  fit  associate  for  other  soldiers.  C.  15834,  Jcl'^-  28, 
1904. 

Convicted  of  theft  by  civil  courts  and  given  a  probationary  sen- 
tence. C.  20158,  July  31, 1906;  20153,  July  18, 1907;  23259,  Sept.  16, 
1908,  Mar.  16,  1909. 

Convicted  of  theft  by  civil  courts.  C.  17213,  Dec.  5,  1904,  Mar.  5, 
1908;  23259,  June  23,  1910;  23259-A,  July  12, 1911. 

Sentenced  to  imprisonment  by  civil  courts.  C.  17373,  July  21, 
1908;  23269,  May  20,  1908,  Jan.  I4,  July  2  and  30,  1909. 

For  alcoholic  dementia.     C.  19547,  Dec.  I4,  1909. 

For  unfaithful  service.     C.  20497,  Oct.  13,  1906. 

For  writing  an  obscene  and  insulting  letter  to  a  woman.  C.  20615, 
July  1,1910. 

For  being  in  the  hands  of  the  civil  authorities  at  the  expiration  of 
his  enlistment.     C.  22526,  Dec.  24,  1907. 

Held  by  civil  authorities  for  seduction,  admits  guilt.  C.  22612, 
Mar.  12,  1908;  23259,  June  8,  1910. 

For  indecent  exposure  of  person  on  a  street  car,  for  which  he  was 
sentenced  to  imprisonment.     C.  23259,  June  25,  1908. 

Incorrigibility  and  drinking  to  excess.     C.  24OO4,  Oct.  21,  1908. 

For  introducing  cocaine  into  prison  and  prison  wards  of  Pacific 
branch  of  United  States  military  prison.     C.  24OO4,  Apr.  5,  1909. 

Morally  incapacitated  from  rendering  honest  and  faithful  service. 
C.  24004,  Dec.  22,  1910. 


438  DISCHARGE   III   F  1. 

Totally  unfit  to  he  a  soldier,  and  should  never  have  been  enlisted. 
Service  aid  not  justify  an  honorable  discharge.  C.  24004,  June  30, 
1911. 

For  attempt  by  a  sane  man  to  commit  suicide.  C.  25962,  Dec.  18, 
1909. 

For  being  insane  at  time  of  enlistment  while  on  parole  from  an 
insane  asylum  as  improved.  C.  26566,  Apr.  19, 1910;  24OO4,  Aug.  24, 
1911. 

Sentence  which  contained  dishonorable  discharge  set  aside  on 
account  of  fatal  defect  in  the  record.  C.  11998,  Feb.  6,  1902;  13209, 
Aug.  30,  1902;  13210,  Aug.  29,  1902;  25915,  Dec.  10,  1909. 

A  sentence  contained  dishonorable  discharge,  but  the  court  was  not 
sworn.     C.  6160,  Apr.  24, 1899. 

A  sentence  of  confinement  extending  heyond  the  soldier's  term  of 
enlistment  did  not  contain  dishonorable  discharge.  C.  6776,  July  22, 
1899. 

Sentenced  to  disTionordble  discJiarge  when  the  code  of  penalties  did 
not  justify  such  sentence.     C.  8705,  Aug.  2,  1900. 

Sentenced  to  confinement  and  dishonorable  discharge,  and,  through 
error,  the  mitigation  intended  for  a  portion  of  the  confinement  was 
held  to  set  aside  the  dislionorahle  discJiarge.  G.  9369,  Nov.  28, 1900, 
Aug.  28,  1901. 

Sentenced  to  confinement  in  a  penitentiary  and  paroled,  C.  23259, 
Sept.  16,  1908. 

For  MgJiway  rohhery  and  aiding  a  desertion  to  tlie  enemy,  when 
protected  from  trial  by  the  statute  of  limitations.  C.  12025,  Feb.  6, 
1902. 

After  expiration  of  term  of  enlistment,  while  serving  a  sentence  of 
confinement  not  involving  dishonorable  discharge,  it  was  discovered 
that  the  sentence  was  null  and  void.     C.  13210,  Aug.  29,  1902. 

Convicted  of  murder,  in  the  Philippine  Islands,  under  the  fiity- 
eighth  article  of  war,  but  sentence  not  approved  until  after  the  Presi- 
dent had  proclaimed  peace  by  his  proclamation  of  July  4,  1902.  C. 
13653,  Feb.  18, 1903. 

Discharged  by  order  of  the  civil  courts  while  in  confinement  under 
charge  of  desertion.     C.  13818,  Dec.  18,  1902. 

From  preceding  enlistment,  in  case  of  fraudulent  enlistment  with- 
out a  discJiarge  from  said  preceding  enlistment.  C.  20314,  Aug.  31, 
1906,  Feb.  17,  1909. 

Disqualification  for  service,  as  to  cliaracter,  by  reason  of  his  had 
habits.     C.  22487,  Dec.  14,  1907;  20615,  Dec.  23,  1910. 

Convicted  of  larceny  of  clothing,  but  on  account  of  failure  of  judge 
advocate  to  prove  the  value  of  the  articles  stolen,  findings  disap- 
:proved.     C.  22902,  Mar.  18,  1908. 

Convicted  before  a  United  States  commissioner  of  JciUing  game  in 
Yellowstone  Parle,  and  sentenced  to  pay  a  fine,  and  confined,  on 
refusal  to  pay  the  fine  or  to  take  the  pauper's  oath.  C.  23259,  A, 
Jan.  27,1911. 

For  being  ignorant,  lazy,  and  dirty  to  the  point  oifilthiness,  with- 
out a  single  soldierly  characteristic.  Discharge  requested  by  father 
on  ground  of  mental  unsoundness,  etc.,  but  surgeon  reported  no  evi- 
dence of  mental  unsoundness.     C.  23653,  Aug.  3,  1908. 

For  participating,  during  a  previous  enlistment,  in  a  loot  of  Gov- 
ernment property  at  a  military  station.    C.  24OO4,  Apr.  4  and  26, 1911. 


DISCHARGE   III   F  2.  439 

A  soldier  during  the  Civil  War  was  tried  and  convicted,  the  offenses 
being  eluding  the  guards,  passuig  through  the  lines  and  robbing  the 
house  of  a  woman  6  miles  rrom  camp  of  jewelry  to  the  value  of  about 
S800.  He  was  sentenced  *'to  be  confined  in  some  military  prison  for 
a  period  of  ten  years,  to  forfeit  all  pay  or  allowances  that  may  be  due 
him  and  to  wear  a  ball  and  cham  attached  to  his  leg  two  months  of 
each  year."  He  did  not  receive  a  dishonorable  discharge.  Held  that 
his  status  was  that  of  an  enlisted  man  undergoing  sentence  of  impris- 
onment lawfully  imposed  by  general  court-martial,  and  as  such  a 
person  does  not  occupy  a  status  of  honor  at  the  instant  of  his  separa- 
tion from  the  military  service  he  is  regarded  as  havuig  been  dis- 
charged without  honor.     C.  17398,  Jan.  18,  1905. 

A  department  commander  disapproved  a  sentence  of  dishonorable 
discharge  and  instructions  were  issued  returnmg  the  man  to  duty. 
Before  the  disapproval  was  published  in  orders  the  department  com- 
mander reconMered  the  matter,  and  as  the  record  was  still  in  his 
possession  he  approved  the  sentence  and  ordered  it  executed,  and 
this  approval  was  published  in  orders.  Held  that  the  effect  of  the 
later  approval  by  the  department  commander  was  to  separate  the 
soldier  from  the  service  under  circumstances  which  are  not  honorable 
but  at  the  same  time  his  discharge  is  not  a  dishonorable  one,  and  it 
should  be  treated  as  a  discharge  without  honor.  C.  11509,  Nov.  8, 
1901. 

It  developed  that  a  deserter  was  absent  in  a  sanitarium  undergoing 
an  operation  of  trepanning  the  skull,  to  remove  the  results  of  an 
injury  he  had  received  p^or  to  enlistment,  and  that  during  his  enlist- 
ment he  had  been  subject  to  epileptic  attaclcs.  Held  that  he  should 
be  summarilj^  discharged  without  honor.     C.  16017,  Apr.  7,  1904. 

Held  that  a  soldier  who  believes  in  the  overthrow  of  organized 
society  as  now  constituted  should  be  discharged  without  honor. 
C.  24004,  Dec.  26,  1911. 

Ill  F  2.  Held  that  the  discMrge  of  a  cadet  from  the  United  States 
Military  Academy,  in  1862,  for  demerits  in  excess  of  the  limit  fixed, 
was  what  is  now  known  as  a  discharge  without  honor.  0.  2533,  Aug. 
17, 1896.  Similarly  held  in  the  case  of  a  sumnmry  dismissal  of  a  cadet. 
C.  2533,  Aug.  17,  1896. 

Ill  F  3.  /?^  cases  of  officers:  A  volunteer  officer  was  summarily  dis- 
missed on  account  of  unfitness  caused  by  his  own  fault.  Held,  that 
his  discharge  was  without  honor.  P.  52,  403,  Mar.  1892.  Similarly 
held  where  the  officer  was  summarily  " dropped' '  for  absence  without 
leave.  P.  46,  389,  Apr.,  1891.  Similarl}^  held  in  the  case  of  a 
volunteer  officer  who  was  summarily  dismissed  by  the  governor  of 
his  State,  under  authority  conferred  by  the  President,  for  ''having 
failed  to  pass  a  satisfactory  examination  before  the  examining 
board,"  which  action  was  recommended  by  the  board,  as  the' officer's 
conduct  during  his  examination  ''was  contemptuous  and  insulting 
in  the  extreme,  evincing  not  only  his  incompetency  as  an  officer,  but 
an  utter  lack  of  even  the  smallest  qualification  of  a  gentleman." 
C.  1789,  Oct.  18,  1895.  Similarly  held  in  the  case  of  an  officer  who 
was  summarily  discharged  while  awaiting  confirmation  of  a  sen- 
tence of  dismissal  for  ''quitting  Ms  guard.''  C.  9335,  Nov.  26,  1900. 
Similarly  held  in  the  case  of  an  officer  who  hj  fraud  accomplished  his 
muster-inj  and  who  was  dismissed  by  order  of  the  President  under 


440  DISCHARGE  III   G. 

section  17  of  the  act  of  July  17,  1862  (12  Stat.  594).     C.  16822,  Sept. 
2,  1904- 

III  G.  A  company  1  of  volunteers  having  in  1862  refused  to  proceed 
to  a  certain  point  when  ordered  to  go  there,  was  subsequently  duly 
mustered  out  because  of  its  refusal  to  obey  the  order.  Held  that  the 
members  of  the  company  were  discharged  without  honor.  C.  1915, 
Bee.  1895.  Similarly  lield  in  the  case  of  a  company  during  the  Civil 
War  which  was  ''mustered  out  and  discharged  because  it  refused 
to  serve  as  the  authorities  of  the  Government  then  in  charge  of  mat- 
ters relating  to  it  held  that  it  ought  to  serve."     C.  1915,  Dec.  28, 1895. 

IV  A.  A  dishonorable  discharge  is  a  discharge  given  pursuant  to 
the  sentence  of  a  general  court-martial  when  specifically  awarded  by 
or  necessarily  involved  in  such  sentence.  P.  4.2,  267,  Aug.,  1890; 
p.  5870,  Feb.  21,  1899,  and  7102,  Oct.  5, 1899.  Bemg  a  punishment, 
it  can  onlj^  be  authorized  by  sentence  of  a  court-martial  after  trial 
and  conviction,  and  no  executive  or  military  official  (except  in 
executing  such  a  sentence)  can  legally  give  or  order  such  discharge. 
P.  36,  334,  Nov.^,  1889;  56,  220,  Oct.,  1892;  60,  95,  June,  1893. 
And  when  a  soldier  is  sentenced  by  court-martial  to  imprisonment, 
in  a  penitentiary  and  the  sentence  does  not  also  direct  dishonorable 
discharge,  it  nevertheless  involves  such  discharge.^  0.  1226,  Apr , 
1895. 

IV  B.  A  dishonorable  discharge  entails  jper  se  no  disqualification 
for  civil  employment  under  the  United  States.^  R.  8,  91,  Mar.,  1864; 
28,  250,  Nov.,  1868;  31,  296,  Apr.  1871;  34,  623,  Nov.,  1873. 

IV  C.  A  soldier  was  sentenced  to  imprisonment  in  a  penitentiary 
and  the  sentence  did  not  direct  that  he  should  be  dishonorably  dis- 
charged. Held  that  it  involves  a  dishonorable  discharge  nevertheless 
for  the  reason  that  the  dishonorable  status  of  coiSinement  in  a 
penitentiary  is  incompatible  with  the  honorable  status  of  a  soldier. 
0.  1226,  Apr.  25,  1895;  12623,  May  15,  1902. 

IV  D.  Where  a  soldier  is  dishonorably  discharged  from  the  military 
service  in  the  operation  of  a  sentence  of  court-martial,  the  opera- 
tion of  such  discharge  is  to  rescind  the  soldier's  contract  of  enlistment, 
and  in  the  operation  of  such  rescission  all  contingent  rights  and  bene- 
fits, present  and  future,  which  are  conditioned  upon  honest  and 
faithful  service  on  the  part  of  the  soldier  faU  with  it.  C.  27073, 
July  22,  1910. 

IV  E.  So  where  a  soldier,  while  under  a  sentence  of  confinement 
for  a  term  less  than  the  remaining  term  of  his  enlistment  (imposed 
without  dishonorable  discharge),  was  for  a  further  offense  tried,  con- 
victed, and  sentenced  to  dishonorable  discharge  and  imprisonment, 
and  was  thereupon  duly  discharged  accordingly,  held  that  the  period 
of  the  pending  confinement  under  the  first  sentence  was  thereupon 
terminated,  leavmg  to  be  executed,  after  the  discharge,  only  the  con- 
finement adjudged  by  the  second  sentence.     R.  4h  ^^^?  June,  1879; 

^  In  1906  three  companies  of  the  Twenty-fifth  Infantry  were  discharged  without 
honor  as  a  result  of  the  shooting  affray  at  Brownsville,  Tex.,  Aug.  13,  1906.  On  a 
test  case,  held  that  the  discharge  was  legal.    (Reidi;.  U.S.,  161  Fed., 469,  May  14, 1908.) 

2  This  was  the  practice  during  the  Civil  War,  But  it  is  now  the  practice  in  such 
cases  to  specifically  adjudge  dishonorable  discharge  to  precede  the  imprisonment. 

3  Sec.  2  of  the  act  of  August  1,  1894  (28  Stat.,  216),  provides  that  "no  soldier  shall 
be  again  enlisted  in  the  Army  whose  service  during  his  last  preceding  term  of  enlist- 
ment has  not  been  honest  and  faithful." 


DISCHARGE  V  A.  441 

P.  61,  424,  Sept.,  1893;  C.  2376,  2762,  Oct.  and  Nov.,  1896;  11393, 
Mar.  6,  1902;  12402,  Apr.  14,  1903;  19972,  June  27,  1906;  21722, 
July  9,  1907. 

V  A.  If  during  his  term  of  enlistment  a  soldier  becomes  incapable 
of  rendering  service,  on  account  of  disability  contracted  in  the  line 
of  duty,  he  is  granted  a  discharge  on  a  surgeon's  certificate  of  dis- 
ability. Held  tliat  the  discharge  so  granted  is  honorable.  C.  20754, 
Nov,  23,  1906,  and  Mar.  30,  1908. 

V  B.  A  soldier  was  discharged  on  surgeon's  certificate  of  disability 
by  reason  of  tertiary  syphilis  existmg  at  the  time  of  enlistment. 
Held,  on  a  question  as  to  the  character  that  should  be  entered  on  liis 
discharge  certificate,  that  as  the  disability  was  not  due  to  any  fault 
or  misconduct  of  the  soldier  and  it  does  not  appear  that  there  was 
any  fraud  in  the  enlistment,  he  should  be  given  an  honorable  dis- 
charge.    C.  3540,  Sept.  22,  1897. 

VC.  The  question  arose  as  to  whether  or  not  a  soldier  was  dis- 
charged by  way  of  favor  or  because  of  disability.  Held  that  he  was 
discharged  by  way  of  favor,  but  that  disability  may  have  existed  and 
may  be  proved.^     G.  10396,  May  I4,  1901. 

V  D.  A  certain  certificate  of  disabihty  was  made  out  in  favor  of 
a  soldier  who  was  insane  in  a  hospital  and  the  certificate  of  discharge 
delivered  to  the  superintendent  of  the  hospital.  Held  that  as  the 
soldier  was  insane  he  was  incapable  of  receiving  or  of  being  charged 
with  notice  of  the  fact  of  discharge,  and  that  his  connection  with  the 
mihtary  service  had  not  been  severed  and  the  certificate  of  discharge 
issued  m  his  case  was  inoperative.  Further  held  that  he  should  be 
continued  in  service  until  his  discharge  had  been  ordered  by  the  Secre- 
tary of  War  in  pursuance  of  his  authority  to  discharge  soldiers  who 
were  patients  at  the  Government  Hospital  for  the  Insane.  C.  15403, 
Oct.  24,  1903;  20066,  Jan.  18,  1906. 

VI  A.  Held,  that  discharges  by  way  of  favor  as  distinguished  from 
purchase  are  illegal  and  will  not  be  granted  except  in  case  of  dependent 
parent  after  one  year's  service  of  the  soldier.  Held  further  that  a 
soldier  shall  not  be  discharged  by  way  of  favor  until  he  shall  have 
served  one  year.^     C.  15717,  Dec.  28,  1911. 

VI  B.  A  soldier  served  nearly  10  years  as  an  enhsted  man  and 
about  3  years  as  a  commissioned  officer,  making  a  total  service  of 
about  12  years  and  8  months.  Held,  that  although  he  could  not  be 
discharged  by  way  of  favor  on  account  of  having  served  12  years  as  an 
enhsted  man,  that  the  character  of  his  service  justified  his  being 
discharged  by  way  of  favor.     C.  12607,  May  I4,  1902. 

VI  C  1.  A  soldier's  father  was  declared  insane,  leaving  his  mother 
and  small  sister  without  any  support.  Held,  that  although  the  facts 
do  not  bring  the  case  within  the  letter  of  section  30,  act  of  February  2, 
1901  (31  Stat.,  756),  they  bring  it  within  the  spirit  of  that  act,  and 
that  it  would  be  proper  for  the  Secretary  of  War  to  decide  that  the  sol- 
dier's discharge  by  way  of  favor  would  subserve  the  public  interest, 
which  action  was  recommended.  C.  16773,  Aug.  19,  1904;  18329, 
July  21,  1905. 

VI  C  2.  Section  30  of  the  act  of  February  2,  1901  (31  Stat.,  756), 
provided  that  an  enlisted  man  could  after  one  year's  service,  should 

1  See  Circular,  War  Department,  May  22,  1901. 

2  See  G.  O.  90,  War  Department,  Washington,  June  30,  1911,  pars.  8  and  9. 


442  DISCHARGE  VI   D  1. 

either  of  his  parents  die  leaving  the  other  solely  dependent  upon  him 
for  support,  upon  his  own  application  to  the  Secretary  of  War 
accompanied  with  proof  of  such  condition,  be  honorably  discharged. 
Held,  that  this  law  is  not  applicable  to  general  prisoners.  C.  16428, 
June  28,  1904. 

VI  D  1.  Section  4  of  the  act  of  June  16,  1890  (26  Stat.,  158), 
authorizes  the  President,  in  time  of  peace,  in  his  discretion  and  under 
such  rules  and  upon  such  conditions  as  he  shall  prescribe,  ''to  permit 
any  enlisted  man  to  purchase  his  discharge  from  the  Army."  Held, 
that  under  this  section  the  President  could  permit  a  soldier  to  pur- 
chase his  discharge,  even  if  his  service  had  not  been  honest  and  faithful. 
P.  63,  373,  Feb.,  1894;  C.  1340,  May  10,  1895. 

VI  D  2.  The  rules  and  conditions  prescribed  under  the  act  of 
June  16, 1890  (26  Stat.,  158),  are  published  in  the  Army  Ptcgulations, 
under  which  the  granting  of  discharges  is  discretionary.  Held,  that 
although  in  1900  active  operations  against  an  enemy  were  being 
conducted  only  in  the  Philippine  Islands,  if  it  was  deemed  for  the 
best  interests  of  the  service  not  to  do  so  the  then  existing  conditions 
warranted  withholding  of  the  privilege  and  purchase  of  discharges 
within  the  territorial  limits  of  the  LTnited  States  as  well  as  in  the 
Philippines.!     C.  7617,  Jan.  27,  1900. 

VI  D  3.  As  the  enactment  which  authorizes  an  enlisted  man  to 
secure  his  discharge  by  purchase  is  intended  to  apply  only  to  a  meri- 
torious case,  Jield,  that  the  period  during  which  a  soldier  was  absent 
without  leave  would  not  be  included  m  computing  the  necessary 
length  of  service  to  render  him  eligible  to  purchase  his  discharge. 
C.  22731,  Feb.  10,  1908. 

VI  D  4.  Held,  that  a  discharge  by  purchase  is  an  honorable  dis- 
charge within  the  meaning  of  section  2166,  R.  S.,  which  section  waives 
the  declaration  of  the  intention  to  become  a  citizen  in  the  case  of  an 
honorably  discharged  soldier.     C.  22923,  Mar.  19,  1908. 

VI  D  5.  Held,  that  a  discharge  by  purchase  stands  on  the  same 
footing  as  any  other  form  of  discharge  in  all  matters  having  to  do 
with  its  execution,  including  the  preparation  of  a  statement  of  char- 
acter and  the  determination  of  tlie  service  rendered  as  honest  and 
faithful  or  otherwise.^     C.  27037,  July  15,  1910. 

VI  D  6.  The  Philippine  Scouts  are  a  part  of  the  Army,  section 
36  of  the  act  of  February  2,  1901  (31  Stat.,  757).  Held,  that  they 
are  brought  within  the  scope  of  section  4,  act  of  June  16,  1890  (26 
Stat.,  157),  which  authorizes  discharge  by  purchase.  Discharges  by 
purchase  were  forbidden  outside  the  continental  limits  of  the  United. 
States  in  War  Department  orders,  and  the  question  of  whether  they 
shaU  be  included  is  a  matter  of  expediency  and  not  of  law.  C.  18157, 
June  14,  1905,  and  Sept.  1,  1911. 

VI  D  7.  A  soldier  who  had  had  previous  service  in  the  Marine 
Corps  applied  for  discharge  by  way  of  purchase  before  he  had  served 
one  year  in  the  Army.  Held  that  he  was  not  entitled  to  purchase  his 
discharge  as  his  Marine  Corps  service  could  not  be  held  to  be  service 
in  the  Army.     C.  18391,  Aug.  7,  1905. 

VII  A.  A  soldier  was  ordered  released  from  the  military  service  by 
the  civil  courts  on  a  writ  of  haheas  corpus.     Held,  that  in  that  case 

1  The  price  fixed  at  date  of  discharge  governs  (XIV  Comp.  Dec,  192,  Oct.  4, 1907). 

2  See  G.  O.  No.  90,  War  Department,  Washington,  June  30,  1911. 


I 


DISCHARGE  VII   B.  443 

and  in  similar  cases  the  Secretary  of  War  should  cause  a  discharge 
certificate  to  be  issued.     C.  2739,  Nov.  I4,  1896. 

VII  B.  ^Tiere  a  State  court  on  habeas  corjms  proceedings  ordered 
that  a  soldier  in  the  military  service  of  the  United  States  be  dis- 
charged therefrom,  held  that  as  the  court  was  without  jurisdiction  in 
the  matter  its  order  was  absolutely  void  and  without  elTect  as  a  dis- 
charge of  the  soldier  from  the  service.  P.  82,  813-319,  May,  1889; 
C.  394,  Sept.,  1894. 

VIII  A.  A  man  enlisted  July  23,  1898,  for  the  Eighth  Infantry 
(white).  Three  days  later  the  recruiting  officer  discovered  that  he 
was  colored,  reported  the  fact  to  The  Adjutant  General's  Office, 
making  application  for  his  discharge,  and  told  the  soldier  to  go  to 
his  home  and  remain  there  until  sent  for.  A  few  (lays  later  the 
recruiting  officer  was  relieved  from  duty  at  that  station,  so  that  his 
coimection  with  the  case  ceased.  Owing  to  volume  of  business  in 
The  Adjutant  General's  Office,  the  case  was  not  reached  for  a  con- 
siderable period  of  time.  An  inquiry  was  made  of  the  commanding 
officer  if  this  soldier  was  with  the  regiment  and  if  so  directing  his 
immediate  discharge  with  travel  pay.  The  commanding  otlicer. 
Eighth  Infantry,  replied  that  no  one  with  the  name  given  belonged 
to  the  regiment.  Telegram  was  then  sent  to  the  officer  who  enlisted 
the  man,  asking  what  disposition  was  made  of  the  record,  and  the 
papers  filed  to  await  reply.  No  reply  was  ever  received,  and  the 
case  so  remained  until  discovered  by  clerical  examination  for  perfec- 
tion of  the  records.  The  man  had  never  been  with  the  regiment, 
nor  had  he  been  formaUy  discharged.  Held  that  as  the  soldier  had 
remained  at  his  home  for  over  three  years  since  being  sent  there  by  the 
recruiting  officer,  without  making  any  claim  for  pay  or  aUowances, 
or  communicating  with  the  War  Department  in  regard  to  the  status 
of  his  case,  it  was  inferred  that  he  understood  that  he  was  to  be  dis- 
charged, and  that  his  discharge  took  effect  on  the  date  when  he  was 
sent  to  his  home.     C.  11166,  Sept.  6,  1901. 

IX  A.  The  act  of  April  22,  1898  (30  Stat.  361),  provided  that  ''at 
the  end  of  any  war  in  which  the  United  States  may  become  involved 
the  Army  shall  be  reduced  to  a  peace  basis  by  the  *  *  *  honor- 
able discharge  or  transfer  of  supernumerary  enlisted  men."  Held  that 
particular  enlisted  men  could  not  claim  a  right  under  this  law  to  be 
discharged.  The  provision  is  directed  to  the  President  and  makes  it 
his  duty  to  reduce  the  Army  by  the  means  indicated,  and  of  course 
he,  through  the  officers  of  the  Army,  will  select  the  men  to  be  dis- 
charged. C.  5085,  Oct,  1898.  This  act  further  provided  that  aU 
enlistments  for  the  Volunteer  Army  should  be  for  the  term  of  two 
years  unless  sooner  terminated  and  that  aU  officers  and  men  com- 
posing said  army  should  be  discharged  when  the  purposes  for  which 
they  were  caUed  into  service  shaU  have  been  accomplished  or  on  the 
conclusion  of  hostilities.  Held  that  this  latter  provision  made  it 
the  duty  of  the  President  to  disband  the  Volunteer  Army  when  the 
occurrences  named  took  place,  but  did  not  give  individuals  the  right 
to  claim  discharges  before  the  end  of  the  two  years  for  which  they 
enlisted.     C.  4822,  Aug.,  1898;  4891  and  4897,  Sept.  1,  1898. 

IX  B.  General  Orders,  40,  Adjutant  General's  Office,  of  1898,  pro- 
vided "that  men  enlisted  or  reenlisted  during  the  war  may  be 
informed  that  they  will  be  granted  their  discharges  if  desired  at 
the  close  of  the  war  upon  their  individual  applications."     Held  that 


444  DISCHARGE   IX   C. 

this  order  simply  authorized  the  discharge  on  their  own  application 
of  men  who  had  enlisted  during  the  war,  leaving  the  character  of 
each  discharge  and  the  question  of  travel  pay  to  be  determined  by 
the  law  and  regulations  on  the  subject.     C.  6569,  June,  1899. 

IX  C.  General  Orders  No.  40,  Adjutant  General's  Office,  1898,  pro- 
vided that:  ''Men  enlisted  or  reenlisted  in  the  Regular  Army  during 
the  war  may  be  informed  that  they  may  be  granted  their  discharges 
at  the  close  of  the  war  upon  their  individual  applications."  Held 
in  a  particular  case  that  the  soldier  was  not  entitled  to  the  benefits 
of  said  order  for  the  reason  that  he  did  not  take  advantage  of  the 
same  at  the  close  of  the  war  or  within  a  reasonable  time  thereafter, 
and  his  inability  to  do  so  was  caused  by  his  own  misconduct.  C. 
7098,  Oct  7, 1899. 

IX  D.  A  soldier  who  enlisted  during  the  Spanish  War  executed  an 
instrument  January  10,  1899,  as  follows:  " I  voluntarily  waive  the 
privilege  of  discharge  granted  under  General  Orders  No.  40,  Adjutant 
General's  Office,  series  1898,  and  agree  to  serve  the  full  time  (three 
years),  for  which  I  was  enhsted,  provided  I  am  sent  to  the  Philip- 
pines." The  war  closed  April  11,  1899.  June  13,  1899,  he  made 
application  at  San  Francisco  to  be  discharged;  lield  that  the  proposal 
of  this  soldier  to  waive  his  right  to  elect  at  the  close  of  the  war  to  be 
discharged  was  of  no  effect  and  that  the  position  of  the  Government 
was  that  he  should  be  discharged  at  the  close  of  the  war  in  case  he 
desired  it,  and  that  of  course  meant  within  a  reasonable  time.  Held 
also  that  as  the  war  closed  April  11,  1899,  his  application  of  June  13, 
1899,  was  not  within  a  reasonable  time,  unless  the  soldier  was  so 
situated  that  he  could  not  have  acted  sooner  by  using  reasonable 
dihgence.  Further  held  that  the  question  of  whether  or  not  he  was 
so  situated  is  to  be  determined  by  those  in  charge  of  the  matter  of 
discharging  soldiers.     O.  67 SI,  July  22,  1899. 

IX  E.  In  the  case  of  men  enlisted  or  reenlisted  in  the  Regular 
Army  during  the  Spanish  War,  held  that  their  discharges  will  be 
granted  if  discharged  at  the  close  of  the  war  upon  their  individual 
applications,  but  that  they  will  not  be  discharged  if  under  charges, 
awaiting  result  of  trials,  or  serving  sentences;  that  General  Orders  40, 
Adjutant  General's  Office,  1898,  was  not  intended  and  should  not  be 
construed  to  operate  to  relieve  them  from  consequences  of  military 
offenses.     C.  6787,  Feb.  3,  1899. 

X  A.  The  services  of  a  soldier  were  desired  in  another  department 
of  the  Government  and  his  discharge  from  the  Army  was  requested. 
Held  that  the  discharge  in  such  a  case  rests  upon  grounds  of  expe- 
diency and  the  question  presented  is,  will  the  public  interest  be  bene- 
fited by  the  discharge.  Further  held  that  it  should  affirmatively 
appear  in  the  request  just  what  the  benefit  to  the  Government  will 
be.  Further  held  that  if  the  soldier  simply  seeks  his  discharge  in  the 
hope  of  securing  employment  in  another  branch  of  the  Government 
and  makes  no  showing  of  a  desire  bv  that  other  branch  of  the  Govern- 
ment for  his  employment  it  would  not  appear  to  be  a  case  for  dis- 
charge.    C.  15717,  Jan.  6,  1911. 

X  B.  The  act  of  May  11,  1908  (35  Stat.  109),  is  a  beneficial  one 
enacted,  in  a  spirit  oi  liberality,  to  encourage  reenlistments,  and 
the  construction  should  be  equally  liberal,  in  order  to  accomplish 
that  purpose.  To  carry  out  tne  purpose  of  Congress  a  liberal  con- 
struction must  be  given  to  the  words  "for  the  convenience  of  the 


DISCHARGE   XI   A  1.  445 

Government."  Held  that  all  soldiers  honorably  discharged  by  the 
Government  on  its  own  motion  or  for  its  own  advantage  after  having 
served  over  half  their  enhstment  and  before  the  expiration  of  their 
term  of  enlistment,  are  equally  deserving.  There  would  be  no  reason 
for  distinguishing  between  those  honorably  discharged  because  their 
services  were  no  longer  needed,  those  discharged  to  be  immediately 
reenhsted,  and  those  discharged  for  disabiUty.  A  discharge  for  any 
of  these  causes  is  ''for  the  convenience  of  the  Government."  U, 
23547,  Mar.  28,  1910;  28327,  May  10,  1911. 

XI  A  1.  On  request  for  information  as  to  whether  or  not  the  nota- 
tion as  to  character  entered  upon  a  soldier's  discharge  refers  to  his 
character  as  a  soldier  or  liis  character  as  a  man,  held  that  it  refers  to 
his  character  regarded  from  both  points  of  view.  C.  15359,  Oct 
10,  1903. 

XI  A  2.  Held  that  the  provisions  of  (paragraph  147,)  Army  Regu- 
lations, (1910),  relating  to  the  appointment  of  a  board  of  officers 
to  determine  the  facts  relative  to  a  soldier's  character  is  directorv 
only  and  does  not  affect  the  vahdity  of  an  executed  discharge,  with 
reference  to  which  the  directions  of  the  regulations  have  not  been 
observed.     C.  5943,  March,  1899;  12942,  July  11,  1902. 

XI  B  1.  The  regidations  provide  that  when  a  company  commander 
deems  the  service  of  an  enlisted  man  not  honest  and  faithful,  he 
shall,  if  practicable,  so  notify  the  soldier  at  least  30  days  prior  to 
discharge  and  shall  at  the  same  time  notify  the  commanding  officer, 
who  will  in  every  such  case  convene  a  board  of  officers,  three,  if 
practicable,  to  dletermine  whether  the  soldier's  service  has  been 
honest  and  faithful.  Held  that  this  applies  only  to  discharges  at 
expiration  of  term  of  enlistment  and  has  never  been  regarded  as 
restricting  the  authority  vested  in  the  Secretary  of  War  by  the  fourth 
article  of  w^ar  to  annul  an  enlistment  contract  whenever  that  course 
is  dictated  by  the  pubhc  interest.  C.  20754,  Nov.  23,  1906;  23259, 
Apr.  9, 1909. 

XI  B  1  a.  Held  that  a  discharge  without  honor  should  not  be  given 
to  a  soldier  who  is  con&ied  in  the  guardhouse  at  date  of  expiration 
of  term  of  enlistment  awaiting  trial  or  result  of  trial  or  serving  a  sen- 
tence which  does  not  involve  dishonorable  discharge,  without  the 
previous  action  of  a  board  of  officers.^     C  28556,  June  19,  1911. 

XI  B  2.  A  company  commander  beUeved  that  a  soldier's  service 
had  been  ''not  honest  and  faithful."  A  board  was  called  and  ex- 
pressed the  opinion  that  the  man's  service  had  been  '  'honest  and  faith- 
ful." This  finding  was  disapproved  by  the  convening  authority.  A 
second  board  was  convened  and  made  a  report.  Held  that  there  was 
no  authority  for  convening  the  second  board,  and  that  the  soldier  was 
entitled  to  an  honorable  discharge,  service  "honest  and  faithful" 
with  character  at  least  "good,"  as  he  could  not  be  discharged  without 
honor  on  account  of  service  "not  honest  and  faithful,"  without  the 
consensus  of  opinion  of  the  company  commander  and  the  board,  and 
the  convening  authority.     0.  19364,  Mar.  19,  1906. 

XI  B  3.  A  company  commander  entered  on  the  discharge  certifi- 
cate of  a  soldier  that  his  service  was  "not  honest  and  faithful." 
Held  that  the  War  Department  would  not  be  legally  justified  in 
directing  this  company  commander  to  issue  another  certificate,  stat- 
ing that  the  service  was  honest  and  faithful,  but  that  the  Secretary  of 

^  See  par.  156,  A.  R.,  1910,  for  date  of  discharge  in  such  a  case. 


446  DISCHARGE   XI   B  4. 

War  could,  if  in  his  opinion  the  facts  justified  it,  enter  upon  the 
man's  discharge  his  opinion  of  the  soldier's  service,  and  he  may  enter 
thereon  or  cause  to  be  entered  thereon  the  fact  that  the  soldier's 
service  was  ''honest  and  faithful."     G.  129^2,  July  11,  1902. 

XI  B  4.  A  soldier  applied  for  enlistment  and  stated  that  he  had 
been  dishonorably  discharged  the  service.  He  was  enlisted.  Held 
that  he  is  not  guilty  of  fraudulent  enlistment  and  appears  to  be 
entitled  to  a  discharge  with  service  ''honest  and  faithful."  C.  6599, 
June  17, 1899. 

XI  B  5.  Where  a  soldier's  service  has  been  honest  and  faithful, 
held,  that  discharge  without  honor  was  improper.  C.  2230,  Apr., 
1896. 

XI  B  6.  Held  that  the  service  of  a  soldier  who  absented  himself 
from  his  command  just  before  its  departure  for  the  Philippines,  to 
avoid  service  in  those  islands,  was  "not  honest  and  faithful."  G. 
12307,  Mar.  26,  1902. 

XI  B  7.  Held  that  for  a  soldier  to  continue  his  association  with  a 
negro  strumpet  after  he  had  been  directed  by  his  commanding  officer 
to  discontinue  such  association  rendered  liis  service  "not  honest  and 
faithful."  G.  17583,  Feb.  27,  1905.  Similarly  held  that  the  marriage 
of  a  soldier  to  a  well-known  prostitute  and  continued  association  with 
her  renders  his  service  "not  honest  and  faithful."  G.  29114,  Oct.  16, 
1911. 

XI  B  8.  Held  that  a  soldier  who  had  been  arrested,  convicted,  and 
confined  by  the  civil  authorities  had  not  served  "honestly  and  faith- 
fully."    G.  23259,  Apr.  6,  1909. 

XI  C  1.  Among  other  acts  of  a  discretionary  character,  the  officer 
preparing  a  discharge  is  required  to  determine  whether  the  following 
remark  on  the  face  of  the  discharge  shall  be  erased  or  allowed  to 
stand,  viz,  "No  objection  to  his  reenlistment  is  known  to  exist." 
Held  that  if  the  remark  is  erased  the  erasure  constitutes  an  official 
statement  on  the  part  of  the  officer  that  some  objection  to  the  sol- 
dier's reenlistment  exists.  Such  objection  may  be  quite  independent 
of  the  character  given  on  the  discharge  (G.  2^222,  Dec.  18,  1908),  and 
the  erasure  may  be  based  upon  several  grounds.  The  soldier  may  be 
incorrigibly  careless,  or  he  may  be  unable  to  attain  even  moderate 
proficiency  in  small-arms  firing,  or  in  drill,  or  he  ma}^  be  afraid  of 
horses.  lie  may  have  some  physical  affection  not  impairing  his 
efficiency  as  an  able-bodied  soldier,  or  he  may  be  possessed  of  incur- 
able defects  of  temper,  rendering  him  an  undesirable  associate  for 
other  enlisted  men,  etc.  Upon  careful  inquiry  the  company  com- 
mander may  reach  the  conclusion  that  the  soliier  is  not  a  desirable 
candidate  for  reenlistment,  and  that  his  reentry  into  the  military 
service  would  be  contrary  to  the  public  interest.  Held  that  when 
the  company  commander  erases  the  remark  quoted  above  he  should 
note,  under  the  head  of  "Remarks"  on  the  back  of  the  discharge 
certificate,  the  reasons  upon  which  his  conclusion  to  make  the  erasure 
were  based — this  to  enable  the  grounds  of  such  conclusion  to  be 
made  the  subject  of  official  inquiry.     G.  24004,  Mar.  10,  1909. 

XII  A.  It  is  well  established  that  a  soldier  can  not  himself  avoid  his 
contract  of  enlistment  on  the  ground  of  minoritjr  and  abandon  at 
pleasure  the  military  service.  His  release  on  this  ground  can  be 
obtained  only  on  apphcation  of  a  parent  or  guardian  entitled  to  his 


DISCHARGE   XII   B  1.  447 

services,  and  without  whose  consent  he  enlisted.^  P.  68 j  14^,  Feb., 
1893.  The  application  of  the  parent,  whether  made  to  the  Secretary 
of  War  or  on  naheas  corpus  to  a  United  States  court,  must  be  made 
before  the  soldier  attains  his  majority  and  ratifies  his  contract. ^  R. 
65,  UO,  Mar.,  1888;  P.  63,  106,  Apr.,  1892;  64,  233,  July,  1892; 
a  2870,  Jan.  14,  1897;  4167,  May  23,  1898;  12296,  Mar.  26,  1902; 
16192,  Apr.  21,  1904. 

XII  B  1.  By  the  practice  of  the  War  Department,  the  a^^e  of  an 
alleged  minor  is  generally  required  to  be  shown  by  the  affidavits  of 
both  parents,  if  living,  or  by  the  affidavit  of  the  surviving  parent  or 
guardian,  supported  by  the  affidavits  of  at  least  two  other  respectable 
persons  cognizant  of  tne  fact  or  by  an  officially  authenticated  record 
of  a  church  or  court.  If  practicable,  the  affidavits  should  be  accom- 
panied by  the  certfficate  of  a  judge  of  a  United  States  or  State  court 
acquainted  with  the  parties  and  vouching  for  the  truth  of  the  repre- 
sentations made.     R.  63,  63,  Oct.,  1886. 

XII  B  2.  Where  an  apphcation  was  made  for  the  discharge,  on 
account  of  minority,  of  a  soldier  born  in  Bermuda,  advised  that,  in 
addition  to  the  affidavit  of  the  parent,  there  be  required,  as  evidence 
of  age,  a  transcript  of  the  official  parish,  or  other  public,  register  of 
births,  signed  by  the  proper  custodian  (and  sealed  if  he  has  a  seal) ; 
his  signature  to  be  certified  to  as  genuine  bv  the  United  States  con- 
sul. A  transcript  from  the  parish  record  of  baptism  (as  sent  in  this 
case),  Jield  insufficient  if  a  register  of  births  exists.  P.  4^,  77,  Sept., 
1890. 

XII  C  1 .  Advised  that  an  application  of  a  parent  for  the  discharge 
of  a  minor  soldier  be  denied  where  it  appeared  that  the  soldier  had 
married,  presumably^  with  the  parent's  consent.  By  the  laws  of 
France,  and  of  Louisiana  and  some  other  States,  marriage  is  an 
emancipation.  And  if  it  does  not  wholly  emancipate  the  minor,  it 
removes  him  in  a  measure  from  the  parent's  control  and  gives  him 
a  right  to  his  earnings.^     P.  53,  105,  Apr.,  1892. 

XII  C  2.  A  parent  or  guardian  not  domiciled  in  the  United  States 
but  in  France,  held  not  entitled  to  the  discharge  from  the  military 
service  of  a  minor  enlisted  without  consent.  By  such  foreign  resi- 
dence the  parent  or  guardian  is  viewed  as  having  emancipated  the 
child  or  ward.*    P.  62,  132,  Oct.,  1893. 

XII  D  1.  The  practice  oi  the  department  is  understood  to  be  as 
follows,  viz:  When  an  application  is  made  by  parents  for  the  dis- 
charge of  a  son  on  the  ground  that  he  is  a  minor,  they  are  informed 
that  the  soldier  is  punishable  for  the  offense  of  enlisting  without 
their  consent,  and  if  allowed  to  remain  in  the  service  without  raising 
the  question  of  minority  the  soldier  may  serve  his  term,  and  if  he 
does  so  faithfully  he  will  receive  an  honorable  discharge  at  its  expira- 
tion. If,  however,  they  desire  to  press  the  matter,  they  are  requested 
to  submit  evidence  of  minority,  and  are  informed  that  on  receipt  of 
such  evidence  charges  will  be  prepared  and  the  soldier  will  be  charged 
with  the  offense,  and  if  convicted  given  a  sentence  not  to  exceed 

^  In  re  Davison,  21  Fed.  Rep.,  618;  In  re  Zimmerman,  30  id.,  176;  In  re  Cosenow, 
37  id.,  668;  In  re  Kaufman,  41  id.,  876;  In  re  Morrissey,  137  U.  S.,  157. 

2  In  re  Dohrendorf,  40  Fed.  Rep.,  148;  In  re  Spencer,  id.,  149.  See  Circular,  War 
Department,  Mar.  28,  1904. 

3  See  Taunton  v.  Plymouth,  15  Mass.,  204.  • 
*  So  held  by  Attorney  General  Gushing,  6  Op.,  607. 


448  DISCHAKGE  XII  D  2. 

dishonorable  discharge,  forfeiture  of  pay  and  allowances,  and  con- 
finement at  hard  labor  for  six  months,  and  that  upon  the  expiration 
of  the  confinement  adjudged,  the  soldier  will  be  released,  and  if  the 
sentence  does  not  include  dishonorable  discharge  he  will  be  given  a 
discharge  without  honor  in  order  that  his  parents  may  have  his  serv- 
ices, and  that  if  the  soldier  completes  one  year  of  his  enlistment,  he 
may  procure  his  discharge  by  purchase,  and  if  his  service  be  faithful, 
receive  an  honorable  discharge  C.  16379,  May  26,  1904;  17964,  May 
18,  1905. 

XII  D  2.  Fraudulent  enlistment  of  a  minor  is  punishable  under  the 
sixty-second  article  of  war.  Held  that  if  steps  should  be  taken  to 
punish  a  soldier  for  that  or  other  offenses  the  interests  of  the  public 
in  the  administration  of  justice  would  be  paramount  to  the  right  of 
the  parent  and  would  require  that  the  soldier  should  abide  the  con- 
sequences of  his  offense  before  the  right  to  his  discharge  be  passed 
upon  even  by  the  civil  courts  in  habeas  corpus  proceedings.  R. 
60,  680,  Aug.,  1886;  P.  54,  233,  July,  1892;  57,  135,  Dec,  1892;  61, 
158,  Aug.,  1893;  62, 191,  Nov.,  1893;  C.  2870,  Jan.,  1897;  4244,  June, 
1898;  5329,  Nov.  16, 1898;  8982,  Sept.  19, 1900;  16060,  Mar.  22,1 904."- 

XIII A  1.  A  soldier  is  entitled  to  his  discharge  as  of  the  date  of 
the  expiration  of  the  stipulated  period  of  service  for  which  he  has 
enlisted.  He  can  not  discharge  liimself,  but  a  proper  military 
superior  becomes  charged  with  the  dutv  of  discharging  him  on  the 
date  when  his  contract  expires.  Held  that  such  superior  neglects  or 
refuses  to  perform  this  duty  at  his  peril.  C.  12854,  June  23,  1902; 
15133,  Aug.  21,  1903;  17700,  Mar.  25,  1905;  26240,  Feb.  19,  1910. 

XIII A  2.  The  act  of  desertion  does  not  operate  as  a  discharge.  The 
name  of  a  deserter  is  dropped  from  the  proper  rolls  and  is  not  again 
taken  up  until  his  apprehension  or  surrender;  but  he  is  in  no  sense 
discharged  from  the  Army.     P.  63,  30,  Dec,  1890. 

XIII  B  1.  Where  a  soldier  is  held  in  the  service,  after  the  expira- 
tion of  his  term,  to  make  up  lost  time,  in  the  operation  of  the  forty- 
eighth  article  of  war  or  of  a  duly  approved  court-martial  sentence, 
held,  that  the  discharge  should  be  dated  as  of  the  date  of  actual  sepa- 
ration from  the  service,  and  that  fact  should  be  noted  on  the  dis- 
charge. A  similar  rule  applies  in  the  case  of  a  soldier  held  beyond 
the  expiration  of  his  term  for  the  convenience  of  the  Government. 
C.  18438,  June  26,  1908. 

XIII  C.  An  officer  or  soldier  actually  serving  to  a  given  date  can 
not  legally  be  mustered  out  or  discharged  as  of  a  prior  date.^  R.  29, 
698,  Jan.,  1870;  P.  44,  450,  Jan.,  1891;  46,  101,  223,  243,  Mar.  and 
Apr.,  1891;  51, 126,  Dec,  1891;  C.  6330,  Apr.  28,  1899. 

XIII  D  1.  A  discharge  takes  effect  from  the  date  upon  which 
notice  of  such  discharge  is  served  upon  the  person  to  be  discharged. 
R.  29,  598,  Jan.,  1870;  C.  6342,  May  22,  1899.  This  service  may  be 
either  actual  or  constructive.  C.  15403,  Oct.  24,  1903.  Actual  notice 
involves  a  direct  statement  to  the  man  that  he  is  discharged  the 
service;  constructive  notice  has  by  the  custom  of  our  service — a 
custom  accepted  and  indorsed  by  the  comptroller — been  construed 

1  In  re  Kaufman,  41  Fed.  Rep.,  876;  In  re  Dohrendorf,  et  al.,  40  id.,  148,  In  re 
Cosenow,  37  id.,  668;  In  re  Dowd,  90  id.,  718;  In  re  Miller,  114  id.,  838;  U.  S.  v. 
Reaves,  126  id.,  127;  In  re  Lessard,  134  id.,  305;  Ex  parte  Anderson,  16  Iowa,  595; 
McConologue's  case,  107  Mass.,  170;    In  re  Carver,  142  Fed.  Rep.,  623. 

2  13  Op.  Atty.  Gen.,  278. 


DISCHARGE   XIII  D  2.  449 

to  be  the  lodging  of  notice,  in  the  absence  of  the  person  to  be  dis- 
charged, at  the  place  where  properly  and  legally  he  should  be;  his 
absence  for  his  own  convenience  or  through  his  own  fault,  not  serving 
to  allow  liim  to  claim  lack  of  notice.  G.  1289,  Apr.  24,  1895;  16010, 
July  27,  1905.  A  tliird  class  of  cases,  however,  would  appear  to 
exist  where  the  soldier  to  be  discharged  is  in  confinement.  The 
discharge  in  this  case  is  dated  at  some  time  prior  to  the  release  of  the 
man  from  confinement,  and  the  certificate  of  discharge  is  not  delivered 
to  him  until  he  is  released  from  confinement.  Between  the  time  of 
the  release  and  time  at  which  the  certificate  is  delivered,  it  is  held  in 
escrow  by  some  person  in  military  authority.  C.  13016,  July  24, 
1902.  While  notice  lodged  at  the  place  where  the  person  to  be  dis- 
charged is,  should  legally  be  deemed  a  constructive  notice,  it  is 
believed  that  the  mere  lodging  of  a  notice  of  discharge  with  the  prison 
officer  or  the  commanding  officer  of  the  post  where  the  person  to  be 
discharged  is  in  confinement  might  be  held  at  some  future  time  to  be 
insufficient  notice  to  the  prisoner  of  his  discharge.  Held  that  it 
would  be  safer  if  the  person  to  be  discharged  is  present,  to  give  him 
actual  notice  of  his  discharge,  although  there  is  no  requirement 
whatever  that  the  certificate  should  be  placed  in  his  possession  until 
his  release.  Further  held  that  it  is  necessary  to  distinguish  between 
the  actual  discharge  and  the  certificate  thereof,  which  is  merely  evi- 
dence of  such  discharge.!  C.  5632,  Jan.  7, 1899;  11712,  Dec.  18,  1901; 
27724,  Feh.  13, 1911. 

XIII  D  2.  The  discharge  certificate — often  called  the  discharge — is 
not  really  the  discharge ;  nor  is  the  actual  or  constructive  delivery  of 
it  to  the  soldier  the  only  means  of  giving  him  notice  that  he  has  been 
discharged.  Such  delivery  would  be  a  proper  and  effective  notice, 
but  to  inform  him  verbally  or  otherwise  of  his  discharge  would  consti- 
tute equally  effective  notice.  C.  1570,  July  25,  1895;  1916,  Dec.  28, 
1895;  5632,  Jan.  7,  1899;  9556,  Jan.  4,  1901;  16938,  Sept  23,  1904; 
17700,  Mar.  25,  1905. 

XIII  D  3.  A  soldier  sick  in  the  First  Reserve  Hospital  at  Manila, 
P.  I.,  was  notified  by  the  surgeon  in  charge  of  his  ward  May  10,  1901, 
that  he  was  discharged  from  the  service.  He  was  then  transferred 
sick  to  the  general  hospital,  San  Francisco,  Cal.  He  was  discharged 
from  that  hospital  September  15,  1901,  and  furnished  a  certificate  of 
discharge  dated  May  10,  1901.  He  claimed  that  the  date  of  discharge 
was  September  15,  1901.  Held  that  in  view  of  the  fact  that  notice 
was  served  on  May  10,  1901,  he  was  discharged  May  10,  1901.^  O. 
11712,  Dec.  18,  1901,  and  Aug.  19,  1902.  But  Tield,  where  a  soldier 
at  the  expiration  of  his  enhstment  was  too  sick  to  receive  notice  of 
discharge,  that  he  was  not  discharged  at  expiration  of  the  time,  but 
was  held  in  the  service  until  notice  could  be  served  on  him  of  his 
discharge.     C.  26240,  Feh.  10,  1910. 

»  See  par.  156,  A.  R.,  ed.  1910,  as  amended  by  G.  O.  No.  60.    W.  D.  S.     1911. 

"The  discharge  of  a  soldier  can  only  take  effect  on  the  date  and  at  the  place  where 
he  receives  notice,  or  is  legally  chargeable  with  notice,  of  his  discharge"  (II  Comp. 
Dec,  95,  Aug.  31,  1895),  and  M.  M.  S.  decision  of  the  Comptroller,  dated  Apr.  18, 1900 
(Circ.  233,  P.  M.  G.  O.,  1900).    Soldier  on  furlough  (VI  Comp.  Dec,  9,  July  7, 1899). 

"^  An  enlisted  man  belonging  to  an  organization  which  was  discharged  Nov.  17,  1898, 
who  was  present  with  his  organization  Nov.  16,  1898,  and  knew  that  it  would  be  dis- 
charged the  following  day,  but  who  was  absent  on  that  day  and  in  a  hospital  not  under 
military  control  until  Dec.  12,  1898,  and  did  not  receive  his  discharge  until  Dec.  27, 
1898,  must  be  regarded  as  legally  chargeable  with  notice  of  his  discharge  Nov.  17, 1898. 
(V  Comp.  Dec,  606,  Mar.  23,  1899.) 

31106°— 12 29 


450  DISCHARGE   XIII   D   4   a. 

XIII  D  4  a.  As  notice  can  not  be  served  on  an  insane  soldier,  Tield, 
that  such  a  soldier  can  not  be  discharged  except  by  order  of  the  Sec- 
retary of  War  under  authority  which  permits  him  to  discharge  patients 
in  the  Government  Hospital  for  the  Insane.  Held,  further,  that  if  the 
patient  has  lucid  intervals  a  notice  given  during  such  an  interval  is 
sufficient  to  render  the  discharge  legal.  P.  61,  79,  Aug.,  1893;  C. 
11712,  Dec.  18,  1901;  15403,  Oct  24,  1903;  20066,.  Jan.  18,  1906, 
Held,  further,  that  if  the  insanit}^  has  existed  since  before  enlistment 
the  man  should  be  discharged  without  honor  and  turned  over  to  the 
proper  civiUan  authorities.^  C.  19208,  Oct.  7, 1909.  Held,  further,  in  a 
case  where  a  soldier  was  discharged  on  certificate  of  disability  on 
account  of  insanity  existing  since  before  enhstment  that  there  is  no 
obligation  on  the  Government  to  send  the  patient  to  the  Government 
Hospital  for  the  Insane.  C.  19208,  July  30,  1907,  and  Oct.  31,  1910. 
Held,  further,  that  in  cases  of  insanity  not  incurred  in  line  of  duty  the 
Government  should  return  the  insane  soldier  to  the  place  of  enlist- 
ment and  there  discharge  him  without  transfer  to  the  Government 
Hospital  for  the  Insane.^     C.  19208,  July  25,  1910. 

XIII  D  4  a  (1).  Where  the  enlistment  of  a  soldier,  who  was  under- 
going treatment  at  the  Government  Hospital  for  the  Insane,  expired, 
and  a  discharge  on  surgeon's  certificate  of  disability  was  issued,  held, 
that  such  discnar^e  was  complete,  irrespective  of  the  degree  of  insan- 
ity, or  of  the  notice  of  discharge  being  given  to,  or  through,  a  com- 
mittee or  guardian;  advised,  therefore,  that  service  of  notice  of  dis- 
charge be  made  through  the  superintendent  of  the  hospital.  G. 
20066,  Jan.  18,  1906. 

XIII  D  4  b.  Soldiers  of  the  PhiHppine  Scouts  are  entitled,  when 
insane,  to  be  admitted  into  the  Government  Hospital  for  the  Insane. 
Held,  in  view  of  the  great  cost  involved  in  the  transportation  of  insane 
persons  from  the  Philippine  Islands  to  the  Government  asylum  in 
Washington  and  of  the  undesirabihty  of  removing  from  the  Philip- 
pines natives  who  are  members  of  the  Army,  that  it  would  be  advisable 
to  contract  for  their  care,  maintenance,  and  treatment  at  any  asylum 
m  the  PhiHppine  Islands.     C.  15^96,  Jan.  16,  1907. 

XIII  D  5.  A  soldier  was  sentenced  to  death  and  the  sentence  was 
commuted  to  imprisonment  for  life.  Held,  that  his  discharge  took 
effect  on  the  date  upon  which  actual  or  constructive  notice  of  the 
sentence  as  commuted  was  served  on  him.  Also,  held,  that  the  dis- 
charge involved  was  a  dishonorable  discharge.    C.  12623,  May  26, 1902. 

XIII  D  6  a.  Where  a  soldier  is  in  confinement  awaiting  trial  by 
the  civil  authorities  at  date  of  expiration  of  service  he  is  entitled  to 
be  discharged  by  reason  of  expiration  of  term  of  service  the  same  as  if 
not  under  arrest  by  the  civil  authorities.  Held  that  unless  his  service 
has  been  of  a  nature  otherwise  to  warrant  a  discharge  without  honor 
he  is  entitled  to  an  honorable  discharge  without  regard  to  whether  or 
not  he  shall  be  subsequently  convicted  or  acquitted  by  the  civil 
authorities.     C.  17373,  Jan.  U,  1905. 

XIII  D  6  b.  During  the  confinement  of  a  soldier  awaiting  trial  his 
term  of  enlistment  expired  and  a  discharge  without  honor  was  depos- 
ited with  his  prison  officer  in  escrow  to  be  delivered  to  the  soldier 
upon  the  termination  of  the  military  proceedings  against  him.     Held 

1  See,  however,  ''In  reGrimley,  137,  U.  S.,  153,"  in  which  it  was  held  by  the  Supreme 
Court  that  the  enlistment  of  an  insane  person  is  void. 

2  This  opinion  was  published  in  Cir.  74,  War  Department,  Nov.  10,  1910. 


DISCHARGE  XIII  D  7.  451 

that  lie  was  not  discharged  on  the  date  when  the  discharge  was  fur- 
nished the  prison  officer,  but  that  he  remained  in  the  service  subject 
to  the  jurisdiction  of  a  court-martial,  and  that  a  plea  in  bar  to  the 
effect  that  he  was  a  civilian  should  be  overruled.  G.  13016,  July  24^ 
1902;  15133,  Aug.  21,  1903;  17380,  Jan.  16,  1905, 

XIII  D  7.  A  dishonorable  discharge  can  not  be  executed  until  the 
order  promulgating  such  sentence  has  been  received  at  the  place 
where  the  same  is  to  be  executed.  The  discharge,  if  to  take  effect 
forthwitli,  should  be  dated  as  of  the  day  on  which  the  order  is  re- 
ceived; and  the  soldier  is  entitled  to  be  paid  to  include  the  date  of 
his  discharge,  if  an^  pay  be  due  him.  If  confinement  has  also  been 
awarded,  the  certificate  of  discharge  is  in  practice  committed  to  the 
custody  of  the  post  commander  or  other  proper  official  to  be  held  by 
him  until  the  confinement  has  been  executed  and  then  delivered  to 
the  party  entitled  to  it.  P.  41,  86,  May,  1890;  G.  1767,  Oct,  1895. 
Nor  can  an  official  publication  in  orders  of  a  sentence  of  dishonorable 
discharge  have  the  effect  of  discharging  a  soldier;  there  must  stiU  be 
notice,  actual  or  constructive,  of  the  fact  of  discharge.  G.  404,  Oct.j 
1894;  3063,  Apr.,  1897;  16010,  July  7,  1904. 

XIII  D  8.  An  enlisted  man  who  had  deserted  during  the  progress 
of  his  trial  was  sentenced  to  be  dishonorably  discharged.  The  sen- 
tence was  approved  and  a  discharge  was  executed  March  12,  1901, 
by  the  commanding  officer  of  the  post  where  his  company  was  serv- 
ing. Held  that  the  soldier  was  separated  from  the  service  by  dishon- 
orable discharge  March  12,  1901,  and  thereafter  was  a  general  pris- 
oner subject  to  arrest  and  confinement  under  his  sentence.  Held 
further  that  as  there  is  no  provision  of  regulations  which  provides  as 
to  where  a  dishonorable  discharge  certificate  not  actually  delivered 
due  to  the  escape  of  the  party  discharged,  shall  be  deposited,  the  cer- 
tificate should  oe  placed  on  file  in  the  War  Department.  G.  10427, 
May  11,  1901. 

XIII  D  9  a.  The  President  or  the  Secretary  of  War  acting  for  the 
President  has  the  right  to  fix  a  day  infuturo  when  the  discharge  of  an 
officer  shaU  become  operative,  and  the  date  should  be  chosen  with 
due  regard  to  the  time  when  notice  of  the  discharge  can  be  served. 
When  an  officer  serving  at  an  isolated  station  is  ordered  to  be  dis- 
charged on  the  date  upon  which  the  order  is  issued  from  the  War 
Department  in  the  city  of  Washington  the  order  wiU  become  effective 
when  the  officer  receives  notice  of  his  discharge.^  G.  16823,  Sept. 
13,  1904. 

XIII  D  9  b.  The  Senate  declined  to  confirm  the  nomination  of  an 
officer  whose  name  had  been  proposed  for  appointment  to  an  office  in 
the  Army.  The  President  withdrew  the  name  and  appointed  another 
man  to  the  position.  Held  that  the  first  officer  was  discharged  on  the 
date  when  the  President  signed  the  commission  of  the  second  officer. 
C.  17480,  Feb.  2,  1905. 

^  See  Gould  v.  U.  S.,  19  Ct.  Cls.,593.  "Officers  discharged  to  take  effect  from  a 
particular  anterior  date,  who  do  not  receive  notice  of  their  discharge  until  some  time 
afterwards,  and  who  in  the  meantime  continue  on  duty,  are  entitled  to  pay  to  the 
date  when  notice  of  discharge  was  received. "  Dig.  Dec,  Second  Comptroller,  vol.  1 
(1869),  sec.  1144. 

"An  officer  on  detached  service  at  the  time  his  regiment  was  discharged,  and  actu- 
ally performing  duty  as  an  officer  of  said  regiment  until  he  received  notice  of  his  dis- 
charge, is  entitled  to  pay  up  to  the  date  of  such  notice. "    Id.,  sec.  1146. 


452  DISCHARGE   XIII  E  1. 

XIII  E  1 .  A  Volunteer  soldier  was  tried  during  the  Spanish  War 
by  a  court  composed  of  Volunteer  and  Kegular  officers  and  sentenced 
to  dishonorable  discharge  and  imprisonment  for  a  period  of  ten  years. 
After  his  regunent  had  been  mustered  out  and  while  serving  said 
sentence  it  was  decided  that  liis  sentence  was  null  and  void,  inasmuch 
as  Regular  officers  sat  on  his  court.  Held  that  he  was  discharged 
from  the  service  on  the  date  when  his  regiment  was  mustered  out  and 
that  his  discharge  was  without  honor.  C.  12103,  Aug.  7,  1902;  1571, 
Feb.  25,  1895;  llfiJ^S,  Jan.  6,  190^. 

XIII  E  2.  The  commanding  general,  Department  of  the  Pacific  and 
Eighth  Army  Corps,  directed  that  certain  men  be  dropped  from  the 
roUs  of  the  Tliirty-sixth  United  States  Infantry.  Held  that  this  was 
an  order  of  "the  commanding  officer  of  a  department"  discharging 
them  from  the  service  within  the  meaning  of  the  fourth  article  of  war. 
Further  held,  that  their  contracts  of  enlistment  were  terminated  the 
day  they  received  notice  of  such  order,  although  they  may  never  have 
been  furnished  with  the  usual  discharge  certificate.  C.  8266,  June 
2, 1900. 

XIII  E  3.  In  1 902  an  American  who  had  been  presumably  a  prisoner 
in  the  hands  of  Philippine  insurgents  was  turned  over  to  the  American 
authorities  at  Bantangas,  Luzon,  P.  I.  The  provost  marshal  recom- 
mended that  the  man's  identity  be  established  and  the  man  released 
or  returned  to  duty,  as  he  claimed  to  belong  to  Company  M,  Twentieth 
Infantry.  The  commanding  general,  Division  of  the  Philippines, 
directea  the  commanding  general.  Department  of  North  Philippines, 
to  release  the  man,  i.  e.,  to  set  him  at  liberty,  and  added  that  'Hhe 
man  has  been  dropped  from  his  company  rolls.  If  he  believes  he  has 
any  just  claim  against  the  Government  he  can  present  it  with 
evidence."  The  man  was  set  at  liberty.  Upon  later  evidence  the 
commanding  general,  Philippines  Division,  caused  this  man  to  be 
apprehended  and  tried  by  court-martial  for  desertion  in  time  of  war. 
Tiie  man  pleaded  in  bar  of  trial  that  he  had  been  discharged  and  set 
forth  the  above  facts.  The  court  overruled  his  plea,  found  him  guilty, 
and  sentenced  him  to  be  hanged.  Held  that  the  plea  in  bar  offered  by 
the  accused  was  a  good  and  valid  plea  and  should  have  been  accepted 
by  the  court,  and  that  the  man  was  discharged  when  he  was  set  at 
liberty.  C.  16938,  Sept.  23,  1904,  and  Mar.  18,  1910;  17294,  Dec. 
24,  J  904;  17034,  May  12, 1905. 

XIII  F.  During  the  Civil  and  Spanish  Wars  there  was  a  rule, 
published  in  general  orders,  to  the  effect  that  when  Volunteer  troops 
are  mustered  out  of  service  the  entire  regiment  or  other  organization 
will  be  considered  as  having  been  mustered  out  at  the  same  time  and 
place,  except  prisoners  of  war.  Held  that  this  did  not  include 
deserters  at  large  who  had  been  dropped  from  the  rolls.  C.  101 4I, 
Apr.  3,1901. 

XIV  A  1 .  The  formal  certificate  of  discharge,  signed  as  required  by  the 
fourth  article  of  war  and  furnished  the  soldier  is  legal  evidence  of 
the  fact  of  discharge  and  of  the  circumstances,  when  stated,  under 
which  it  was  given.^  It  is  furnished  the  soldier  primarily  for  his  use, 
but  not  being  a  record,  the  statements  therein  are  not  conclusive  upon 
the  Government  when  contradicted  by  record  or  better  evidence. 

J  Hanson  v.  S.  Scituate,  115  Mass.,  336;  Bd.  of  Comrs.  v.  Mertz,  27  Ind.,  103;  U.  S. 
V.  Wright,  5  Philad.,  296. 


I 


DISCHARGE    XIV  A  2,  453 

P.  51,  126,  Dec,  1891.  Thus  an  entry  on  a  certificate  of  discharge  of 
the  date  of  enlistment  is  a  copy  from  the  original  record  of  that  fact. 
If  this  entry  is  erroneous  it  may  be  corrected  by  the  War  Department 
by  substituting  a  new  and  correct  certificate  of  discharge  or,  as  is  done 
in  practice,  by  indorsing  on  the  old  certificate  a  statement  that  the 
records  of  the  department  show,  etc.  P.  49,  87,  Sept.,  1891;  C.  11883, 
Jan.  9,  1902;  11741,  Jan.  11,  1902;  14820,  Aug.  26,  1908.  The  dis- 
charge is  complete  without  the  final  statements.  B.  50,  4^4}  July, 
1886. 

XIV  A  2.  WliUe  a  Volunteer  soldier  was  absent  in  desertion,  the 
Volunteer  Armies  were  disbanded  under  an  act  of  Congress.  Held 
that  the  soldier  upon  the  disbandment  ceased,  by  operation  of  law, 
to  be  a  deserter  and  became  a  civilian;  that  his  military  record,  so  far 
as  the  War  Department  was  concerned,  ended  with  the  proper  entry 
of  the  fact  of  his  desertion;  that  in  the  absence  of  statutory  authority 
the  War  Department  was  without  power  to  legally  discharge  the 
soldier  after  the  Volunteer  Armies  by  disbandment  ceased  to  exist. 
P.  50,  192-203,  Nov.,  1891;  C.  42267,  Aug.,  1890;  60214,  June,  1893; 
494,  Oct.,  1894'  If  the  partv  was  in  fact  discharged,  actually  or 
constructively,  before  or  at  the  time  the  Volunteer  forces  were  dis- 
banded, as  shown  by  the  records,  a  certificate  to  that  effect  could 
at  any  time  be  given  by  the  War  Department.  P.  36,  334,  Nov., 
1889;  C.  12146,  Mar.  1,  1902;  I2464,  July  8,  1902;  13118,  Sept.  10, 
1902;  16976,  Oct.  6, 1904;  17807,  Apr-  H,  1905. 

XIV  A  3.  Held  that  a  commanding  officer  who  is  not  in  the  same 
regiment  as  the  soldier  will  sign  the  discharge  certificate  of  a  soldier 
under  his  command  only  when  no  field  officer  of  the  enlisted  man's 
regiment  is  present.     C.  13594,  Nov.  6,  1902. 

XIV  A  4.  The  act  of  February  24,  1897  (29  Stat.,  593),  was  to  pro- 
vide for  the  rehef  of  certain  officers  and  enlisted  men  of  the  volunteer 
forces  during  the  Civil  War.  Held  that  those  who  were  beneficiaries 
under  that  act  were  entitled  to  have  discharge  certificates  furnished 
them.     C.  3021,  Mar.  19,  1897. 

XIV  A  5.  A  discharge  certificate  in  favor  of  a  volunteer  soldier  who 
had  served  during  the  Civil  War  was  issued  by  The  Adjutant  General's 
Department.  The  certificate  was  subsequently  found  to  be  defective 
in  that  it  had  not  been  signed.  Held  that  the  certificate  could  later 
be  completed  by  signature.     G.  10889,  July  26,  1901. 

XIV  B  1.  Under  the  authority  of  the  act  of  April  14,  1890  (26 
Stat.  55),  entitled  ''An  act  for  the  relief  of  soldiers  and  sailors  who 
enUsted  or  served  under  assumed  names  *  *  *  during  the  Civil 
War"  held  that  a  son  of  a  slave,  originally  enlisted  under  the  name  of 
his  former  master  and  discharged  as  such  in  1864,  might  legally  have 
a  discharge  certificate  issued  to  him  in  the  name  of  his  father,  who 
had  been  given  his  freedom  since  the  enhstment  of  his  son.  P.  60, 
354,  July,  1893. 

XIV  B  2.  Where  a  certificate  of  honorable  discharge  has  had  its 
value  impaired  by  a  later  erroneous  entry  thereon,  held  that  there 
was  no  legal  objection  to  an  issue  by  the  War  Department  of  a  new 
certificate  containing  no  reference  to  the  erroneous  entiy.  P.  34, 
222,  Aug.,  1889;  0.  1793,  Oct.,  1895;  11883,  Jan.  8,  1902. 

XIV  B  3.  A  soldier  was  discharged  in  Alaska  and  given  a  discharge 
certificate,  not  on  parchment  but  on  paper.  He  appUed  for  a  parch- 
ment certificate  of  discharge.     Held  that  he  is  not  now  in  the  service 


454  DISCHARGE  XIV  B  4. 

and  can  not,  tlierefore,  be  given  a  discharge  therefrom,  but  that  no 
legal  objection  is  seen  to  furnishing  him  a  certified  copy  of  the 
manuscript  discharge  made  up  on  the  parchment  form  and  retaining 
the  original  in  The  Adjutant  General's  Office.  C.  6982,  Sept.  8, 1899; 
6983,  Sept.  12,  1899. 

XIV  B  4.  Section  224,  R.  S.,  does  not  authorize  the  Secretary  of 
War  to  issue  a  duplicate  certificate  of  discharge  to  replace  one  lost, 
to  an  officer  or  soldier  who  served  in  the  Mexican  War,  or  to  one  who 
served  in  any  war  other  than  ''the  late  war  against  the  rebellion." 
P.  65,  390,  July,  1894. 

XIV  C  1 .  Where  a  duplicate  certificate,  having  been  furnished,  has 
been  lost  or  destroyed,  held  that  as  the  statute  does  not  prohibit  the 
issuing  of  a  second  certificate,  the  Secretary  of  War  may,  under  the 
power  which,  as  representative  of  the  President  is  vested  in  him,  issue 
such  certificate  if  in  his  judgment  it  is  proper  to  do  so.  0.  3101, 
Apr.,  1897;  12029,  Feb.  15,  1902. 

XIV  D  1.  A  soldier  who  had  served  during  the  Spanish  War 
requested  a  certificate  of  service;  held  that  under  the  Army  Regula- 
tions he  was  entitled  to  such  a  certificate  which  should  show  the  date 
of  enlistment  and  discharge  from  the  Army  and  character  given  on 
discharge,  upon  proof  of  the  loss  of  the  original  certificate  or  of  its 
destruction  without  the  fault  of  the  party  entitled  to  it.  Also  held 
that  under  the  same  regulations  and  independently  of  section  224, 
R.  S.,  a  "certificate  of  service,"  substantially  in  accordance  with  the 
form  referred  to  above,  should  be  issued  to  a  soldier  of  any  war  or 
to  his  heirs,  upon  satisfactory  proof  of  the  loss  or  destruction  of  the 
original  certificate  of  discharge.  This  form  bears  nothing  on  its  face 
to  show  that  it  was  issued  under  any  particular  law  or  that  it  is 
anything  more  than  an  official  statement  of  the  soldier's  service.^ 
C.  7114,  Sept.  30,  1899;  13037,  July  29,  1902. 

XIV  D  2.  A  soldier's  dishonorable  discharge  was  rendered  illegible 
by  his  being  "upset  from  a  boat."  Held  that  the  certificate  was 
destroyed  within  the  meaning  of  the  act  of  July  1,  1902  (32  Stat. 
629),  and  that  he  was  entitled  to  a  certificate  of  service.  C.  14131, 
Feb.  12,  1903. 

XIV  D  3.  A  soldier  of  the  Thirty-second  Infantry,  United  States 
Volunteers,  absented  himself  without  leave  at  Nagasaki,  Japan,  when 
the  transport  carrying  the  regiment  to  the  United  States  for  muster 
out  stopped  at  that  port.  He  had  not  reported  for  duty  when  the 
regiment  was  mustered  out,  and  was  carried  on  the  roll  as  absent 
without  leave.  Held  that  he  was  legally  chargeable  with  notice  of 
his  muster  out  as  of  the  date  on  which  his  regiment  was  mustered  out, 
and  upon  that  date  he  legally  became  a  civilian,  and  not  being  in  the 
military  service  can  not  be  given  a  discharge  therefrom  as  requested. 
Held  further  that  there  is  no  legal  objection  to  giving  him  a  certificate 
of  service,  setting  forth  the  facts  that  he  passed  out  of  the  military 
service  on  date  of  the  muster  out  of  his  company,  being  at  that  date 
absent  without  leave.     C.  I2464,  July  8,  1902. 

XIV  D  4.  Section  5  of  the  act  of  August  3,  1861  (12  Stat.  288), 
authorized  the  enlistment  of  "medical  cadets."  One  of  them  lost 
his  discharge  certificate.     Held,  that  as  he  was  an  enlisted  man  a  cer- 

*  See  act  of  July  1,  1902  (32  Stat.  629). 


DISCHARGE  XIV  D  5.  455 

tificate  of  service  under  the  act  of  July  1,  1902  (32  Stat.  629),  could 
be  furnished  to  him.     C.  21108,  Feb.  23,  1907. 

XIV  D  5.  A  soldier  was  granted  a  discharge  without  honor  under  a 
mistake  as  to  fact.  Held  that  the  corrected  statement  of  facts  could 
be  entered  by  the  War  Department  on  the  discharge  certificate  and 
the  certificate  returned  to  the  man,  or,  preferably,  the  corrected  dis- 
charge-without-honor  certificate  could  be  retained  by  the  War 
Department  and  a  certificate  of  service,  showing  the  correct  state- 
ment of  facts,  furnished  to  the  man.     C.  11741,  Jan.  30,  1902. 

XV  A.  An  executed  honorable  discharge  issued  by  competent 
authority  can  not  be  revoked  ^  unless  obtained  by  fraud  on  the  part 
of  the  soldier.  C.  26092,  Jan.  18, 1910.  Mere  mistake  on  the  part  of 
the  officers  executing  it  will  not  justify  revocation.  C.  2700,  Oct.  2 4, 
1896;  23570,  July  10,  1908.  The  same  is  equally  true  of  a  discharge 
without  honor  when  once  duly  executed.  C.  2099,  Mar.  4,  1896; 
2423,  July  6,  1896;  9028,  Sept.,  1900;  10922,  July  24,  1901; 
11741,  Jan.  30,  1902;  12342,  Apr.  4,  1902;  14425,  Apr.  3,  1903; 
15144,  Oct.  28,  1903;  15581,  Mar.  28,  1908;  15727,  Jan.  6,  1904; 
20908,  June  19,  1909. 

XV  A  1.  A  soldier  who  had  less  than  two  years  and  six  months  to 
serve  and  whose  organization  was  under  orders  for  service  in  the 
Philippines  informed  his  company  commander  that  he  would  reenlist 
for  service  in  the  Philippines  if  they  would  take  him  as  a  married  man 
and  permit  him  to  taKe  his  wife  to  the  PhiHppines  with  him,  as  he 
intended  to  take  the  examination  for  appointment  as  post  quarter- 
master sergeant.  An  honorable  discharge  certificate  and  final  state- 
ments were  made  out  and  handed  to  him.  He  then  proceeded  to  the 
recruiting  officer  and  requested  to  be  reenUsted  with  the  privileges  of 
a  married  man,  and  was  told  that  his  case  would  remain  in  abeyance 
until  the  recruiting  officer  could  communicate  with  authorities  in 
Washington.  Upon  visiting  the  post  shortly  after,  the  sergeant 
major  informed  him  that  the  delivery  to  him  of  his  discharge  and  final 
statements  was  a  mistake  and  directed  him  to  turn  them  in.  The 
man  did  this  and  was  given  a  certificate  by  his  company  commander 
showing  that  he  had  been  honorably  discharged.  Upon  visiting  the 
recruiting  officer  he  was  informed  that  authority  had  been  secured 
for  his  reenUstment,  but  the  privileges  of  a  married  man  had  not 
been  allowed  in  his  case.  This  man  considered  himself  a  free  man 
and  secured  employment  as  a  civihan  without  any  attempt  to  flee 
from  justice  or  escape  military  control.  He  was  arrested  as  a  deserter. 
Held  that  no  fraud  had  been  practiced  in  the  securing  of  his  discharge 
and  that  he  was  actually  discharged  the  service  when  the  discharge 
certificate  was  handed  him  by  the  sergeant  major.  C.  15581,  Mar. 
28,  1908;  7020,  Sept.  13,  1899;  IOO4I,  Mar.  23,  1901. 

XV  A  2.  An  officer  secured  a  commission  in  the  volunteer  service 
by  fraud  and  was  honorably  discharged  when  his  regiment  was  mus- 
tered out.  Later,  a  War  Department  order  was  issued  which  pur- 
ported to  dishonorably  discharge  him  as  of  the  date  of  his  muster  out 
on  account  of  certam  irregularities.  Held  that  the  order  which 
purported  to  change  the  honorable  discharge  to  a  dishonorable  one 
was  inoperative.     G.  9121,  Oct.  13,  1900,  and  Aug.  17,  1906. 

^  Petition  of  A.  0.  Brooks  for  writ  of  habeas  corpus  (I  Phil.  Repts.  55,  Nov.  5, 1901). 


456  DISCHARGE   XV   B. 

XV  B.  Where  a  soldier  has  been  legally  sentenced  to  be  dishon- 
orably discharged  and  such  discharge  issued  by  competent  authority 
has  been  dulj^  executed,  it  is  beyond  the  power  of  the  Executive,  what- 
ever the  merits  of  the  case,  to  substitute  an  honorable  in  lieu  of  the 
dishonorable  discharge.  The  latter  having  gone  into  effect  can  not 
be  undone,^  moreover,  the  soldier  having  been  thereby  wholly 
detached  from  the  military  service  and  made  a  civilian,  can  not  a^ain 
be  discharged  from  the  service  until  he  has  been  again  enlisted  mto 
it.  R.  37,  390,  Mar.,  1876,  and  610,  May,  1876;  38,  236,  Aug., 
1876,  and  605,  May,  1877;  P,  465,  Nov.,  1878;  C.  2174,  Apr.  8, 
1896;  2776,  Nov.  30,  1896;  3800,  Jan.  20,  1898;  5234,  Jcin.  9,  1899; 
7448,  Jan.  18,  1900;  11450,  Oct.  23,  1901;  123^2,  Apr.  4,  1902; 
U899,  July  29,  1903;  15144,  Oct.  16,  1903;  16180,  Apr.  13,  1904; 
16194,  June  2,  1904;  16659,  July  29,  1904;  22060,  Sept.  13,  1907; 
17667,  Mar.  19,  1908;  23574,  July  13,  1908;  20908,  June  19,  1909. 

XV  C.  A  man  was  legaUy  discharged  without  honor  by  competent 
authority  under  a  mistake  as  to  fact.  Held  that  the  discharge  was 
not  revocable.  C.  1876,  Nov.  25,  1895;  2099,  Mar.  4,  1896;  11741, 
Jan.  30,  1902;  14425,  Apr.  4,  1903;  20908,  June  19,  1909;  14163, 
Mar.  12,  1910;  see  also  Dischirge,  XV  A. 

XV  C  1.  A  soldier  was  serving  sentence  at  expiration  of  term  of 
enlistment  and  a  discharge  without  honor  was  delivered  to  his  com- 
manding officer.  Before-the  expiration  of  his  sentence  the  sentence 
was  discovered  to  be  illegal  and  was  declared  void,  and  the  man 
ordered  released.  Held  that  the  discharge  had  been  legally  executed 
and  could  not  be  revoked,  and  that  it  should  be  delivered  to  the  man 
upon  his  release  from  confinement.  C.  13210,  Aug.  29,  1902;  13209, 
Aug.  30,  1902. 

XV  D  1.  An  order  purporting  to  revoke  a  legally  executed  hon- 
orable discharge,  not  obtained  by  fraud,  and  substituting  therefor  a 
dishonorable  one,  held  wholly  unauthorized  and  illegal.  R.  6,  478, 
Nov.,  1864;  11,  197,  Dec,  1864;  ^0,  584,  Apr.,  1866;  25,  541,  May, 
1868;  C.  2700,  Oct.  24, 1896;  1200  and  1399,  Apr.  and  May,  1895;  2543, 
Aug.,  1896.  Similarly  held,  respecting  an  order  which  purports  to 
substitute  an  honorable  discharge  for  a  legally  executed  discharge 
without  honor,  or  a  legally  executed  dishonorable  discharge.  C.  605, 
Nov.,  1894;  1382,  May,  1895;  2099,  Mar.,  1896;  2174,  Apr.,  1896; 
6378,  July,  1899;  11741,  Dec.  11,  1901;  11851,  Jan.  4,  1902;  14882, 
June  27,  1903;  15581,  Dec.  4,  1903;  15727,  Jan.  6,  1904;  25004,  May 
21,  1909. 

XV  D  1  a.  A  soldier  was  duly  discharged  pursuant  to  an  order 
from  the  War  Department.  The  order  was  issued  under  a  misappre- 
hension in  regard  to  his  actual  status  at  the  time — a  mistake  of  fact — 
which  if  discovered  would  have  deferred  or  prevented  the  issuing  of 
the  order.  Held  that  the  mistake  of  fact  did  not  invalidate  the  dis- 
charge; that  having  been  duly  executed,  it  could  not  be  revoked. 
P.  61,  421,  Sept.,  1893;  C.  1876,  Nov.,  1895;  1791,  Jan.  2,  1896; 
11741,  Dec.  11,  1901,  and  Jan.  20,  1902. 

XV  D  1  b.  Where  a  soldier,  before  the  expiration  of  his  term, 
received  under  the  fourth  article  of  war  a  discharge  in  due  form, 
though  charges  were  then  pending  against  him,  the  authority  order- 
ing the  discharge  not  having  been  made  aware  of  such  charges,  held 

1  4  Op.  Atty.  Gen.,  274. 


I 


DISCHABGE   XV  D  1  C.  457 

that  the  discharge  was  executed  and  could  not  be  revoked  with  a  view 
to  brmging  the  soldier  to  trial;  that  he  had,  by  the  discharge,  duly 
become  a  civilian  and  was  no  more  than  any  other  civilian  under  the 
control  of  the  military  authorities.  R.  23,  483,  May,  1867;  P.  50, 
295,  Nov.,  1891;  C.  1791,  Jan.  2,  1896;  12342,  Apr.  4,  1902. 

XV  Die.  Through  an  error  of  fact  a  discharge  without  honor 
was  given  to  a  soldier;  Jield  that  a  notation  showuig  this  may  be  made 
on  the  records  and  also  on  the  certificate  of  discharge  if  the  soldier  so 
desires.^  C.  6358,  May  15,  1899;  11741,  Jan.  11,  1902;  14820,  June 
18,  1903. 

XVI  A  1.  The  muster-out  of  organizations  of  the  volunteer  forces 
raised  during  the  period  of  the  Civil  War  was  prescribed  by  General 
Orders  108,  Adjutant  General's  Office,  April  28,  1863,  which  provided 
that  discharge  certificates  should  be  prepared  for  enlisted  men 
who  were  absent  for  proper  and  sufficient  reasons,  and  that  these 
should  be  held  in  escrow  by  the  company  or  organization  com- 
mander and  delivered  when  the  conditions  of  the  escrow  had  been 
fulfilled.  A  discharge  was  made  out  and  so  held  in  escrow  in  the 
case  of  a  soldier  who  was  absent  in  desertion.  He  later,  through 
fraud,  secured  possession  of  this  discharge  certificate.^  Held  that  as 
this  honorable  discharge  was  obtained  by  fraud  and  could  have  been 
obtained  in  no  other  way,  it  did  not  operate  to  separate  the  claimant 
from  the  military  service  on  the  date  and  for  the  cause  set  forth 
in  the  discharge  certificate.  C.  20529,  Oct.  24,  1906;  1791,  Jan.  2, 
1896. 

XVI  A  2.  The  honorable  discharge  of  a  soldier  was  authorized  in 
advance  of  the  expiration  of  his  term  on  condition  that  he  should 
reenlist  immediately  for  service  in  the  Philippine  Islands.  He  was 
accordingly  honorably  discharged.  He  failed  to  reenlist  and  thus 
repudiated  the  agreement  with  the  United  States,  in  the  operation 
of  which  his  honorable  discharge  had  been  secured.  Held  that 
his  discharge  had  been  obtained  by  fraud  and  that  it  was  not  binding 
upon  the  Government  and  might  be  repudiated  and  set  aside  by 
the  Secretary  of  War.  The  discharge  was  actually  ordered  set 
aside  and  a  new  discharge  without  honor  of  a  different  and  later 
date  was  issued  in  its  place.  C.  15581,  Bee.  8,  1903,  and  Mar.  28, 
1908;  20529,  Oct.  24,  1906. 

XVI  A  3.  Wliere  a  soldier,  by  making  an  alteration  in  his  '' descrip- 
tive list"  so  as  to  cause  it  to  appear  that  his  term  of  enlistment, 
which  was  in  fact  five  years,  was  three  years  only,  induced  the 
regimental  commander  to  give  him  an  honorable  discharge  at  the 
end  of  three  years'  service;  held,  upon  the  fraud  being  presently 
discovered,  that  the  discharge  might  legally  be  revoked  and  the 
soldier  be  brought  to  trial  by  court  martial  under  the  ninety-ninth 
(now  sixty-second)  article  of  war.     R.  21,  390,  May,  1866. 

XVI  A  4.  A  soldier  secured  his  discharge  by  a  fraudulent  repre- 
sentation that  he  had  secured  a  good  position  in  civil  life.  Held, 
that  his  arrest,  trial,  and  punishment,  and  the  cancellation  of  the 

*  13  Op.  Atty.  Gen.,  201. 

^  16  Op.  Atty.  Gen.  349.  A  soldier  who  was  not  honorably  discharged  at  end  of 
Civil  War,  but  who  was  absent,  obtained  an  honorable  discharge  later  from  the  War 
Department  by  a  fraudulent  representation  of  hia  status.  Held  that  the  conditions 
did  not  exist  under  which  he  could  have  been  honorably  discharged  and  that  the 
revocation  of  the  discharge  was  proper  and  the  concellation  of  the  certificate  right. 


458  DISCHAKGE   XVI  B  1. 

discharge  certificate  were  legal.*  C.  28879,  Aug.  23,  1911.  See  also, 
P.  49,  4H,  Oct.  16,  1891. 

XVI  B  1.  A  soldier  who  became  insane  wJiile  in  the  service  was 
in  hospital  on  account  of  the  insanity  at  the  expiration  of  his  term 
of  service.  A  discharge  certificate  was  thereupon  issued  to  him 
(in  contravention  of  the  Army  Regulations  covering  such  cases) 
and  his  discharge  was  noted  on  the  records.  Held,  that,  being 
insane,  his  notice  of  discharge  was  ineffective  to  deprive  him  of 
the  right  to  be  sent  to  the  Government  Hospital  for  the  Insane 
or  to  preclude  the  Government  from  recalling  and  canceling  the 
discharge.  Advised  that  the  same  be  recalled  and  canceled,  and 
the  man  committed  to  the  Government  Hosspital  in  accordance 
with  the  regulations.  P.  61,  79,  Aug.,  1893;  C.  11712,  Dec.  18, 
1901;  15403,  Oct.  24,  1903;  19050,  Jan.  13,  1906;  20066,  July  17, 
1906. 

XVI  B  2.  A  soldier  was  discharged  without  honor  and  it  was 
afterwards  discovered  that  at  the  date  of  his  discharge  he  was 
suffering  from  incipient  dementia.  Held,  that  he  was  thus  irre- 
sponsible for  certain  derelictions  of  duty.  He  was  then  honorably 
discharged  and  the  records  in  the  office  of  The  Adjutant  General 
were  amended  accordingly.     C.  5897,  Mar.  23,  1899. 

XVI  C  1 .  A  soldier  was  ordered  discharged  without  honor,  but  was 
actually  issued  a  dishonorable  discharge;  held,  that  a  new  discharge 
certificate  may  be  issued  or  the  present  one  may  be  changed  to  show 
he  was  discharged  '^  without  honor."     C.  7102,  Oct.  5,  1899. 

XVI  C  2.  The  reviewing  authority  mitigated  a  sentence  which 
included  dishonorable  discharge  and  confinement  as  follows:  ''Sen- 
tence is  reduced  to  18  months."  Through  a  belief  that  only  the 
confinement  portion  of  the  sentence  had  been  thus  mitigated  a  dis- 
honorable discharge  was  issued.  Held,  that  the  command  issued  by 
the  reviewing  authority  could  be  interpreted  only  as  a  mitigation  of 
the  comj)lete  sentence  to  confinement  to  18  months,  even  though  the 
explanation  was  made  that  the  word  '^ sentence"  was  through  a 
clerical  error  written  instead  of  confinement,  and  further,  lield,  that  if 
a  dishonorable  discharge  had  been  issued  it  should  be  recalled  and 
canceled  as  void  and  inoperative  under  the  terms  of  the  mitigated 
sentence.     C.  11211,  Sept.  11,  1901. 

XVI  D.  A  legally  executed  discharge  issued  by  competent  authority 
can  not  be  revoked,  but,  held,  that  an  executed  discharge  issued  by 
incompetent  authority  is  not  binding  upon  the  Government.  U. 
20529,  Oct.  24,  1906;  26092,  Jan.  18,  1910. 

XVI  D  1.  Where  a  United  States  commissioner  in  Indiana  issued 
to  a  United  States  marshal  a  warrant  for  the  arrest  of  a  deserter 
from  the  Army,  and,  upon  such  deserter  being  brought  before  him, 
adjudicated  the  question  of  his  right  to  discharge  from  the  military 
service,  and  ordered  him  discharged  therefrom,  held,  that  the  entire 
proceeding  was  coram  non  judice  and  a  gross  assumption  and  exceed- 
mg  of  authority,  and  advised  that  the  facts  of  the  case  be  communi- 
cated to  the  Attorney  General  for  his  action,  and  that  the  deserter 
be  forthwith  rearrested  and  brought  to  trial  by  court-martial.  P.  58, 
287,.  Mar.,  1893. 

^  See  28  Op.  Atty.  Gen.  170,  in  which  it  was  held  that  the  Secretary  of  the  Navy 
can  revoke  the  discharge  of  an  apprentice  seaman  procured  by  fraud. 


DISCHARGE   XVI  E.  459 

XVI  E.  Held,  that  an  order  wliich  directs  a  discharge  may  be 
revoked  or  suspended  at  any  time  before  the  discharge  has  actually 
taken  efTect.     R.  29,  508,  Jan.,  1870. 

XVI  F.  An  order  was  issued  from  the  Headquarters  of  the  Army, 
directing  a  discharge  without  honor  of  a  soldier  on  account  of  his 
being  in^'the  hands  of  the  civil  authorities,  serving  sentence  of  impris- 
onment. The  discharge  had  not  been  delivered  actually  or  con- 
structively when  it  developed  that  the  soldier,  after  trial  by  jury,  was 
acquitted*  and  released.  Held,  that  the  order  directing  his  discharge 
should  be  revoked  and  the  discharge  certificate  canceled,  as  the  cause 
of  the  issuance  of  the  discharge  did  not  further  exist  and  the  dis- 
charge had  not  been  effected.     C.  10567,  May  31,  1901. 

XVI  G.  Several  soldiers  were  tried  in  the  Department  of  the  Dakota 
by  a  court-martial  convened  by  a  lieutenant  colonel  and  sentenced 
to  be  dishonorably  discharged.  The  sentence  was  approved  by  the 
lieutenant  colonel  commanding  the  department  and  tne  execution  of 
such  sentences  was  entered  upon.  Held,  that  as  a  lieutenant  colonel 
in  command  of  a  department  had  no  authority  to  convene  a  general 
court-martial  that  the  sentences  of  such  court  were  null  and  void 
and  that  the  dishonorable  discharges  which  had  been  executed  pur- 
suant to  such  sentences  should  be  revoked.  Held,  further,  that  the 
men  who  were  serving  such  illegal  sentences  should,  after  the  revoca- 
tion of  the  dishonorable  discharges  which  had  been  issued  to  them, 
be  brouo:ht  to  trial  before  a  legally  constituted  court,  discharged 
without  honor,  or  restored  to  duty  without  trial.^  C.  16710,  Feb.  6, 
27,  and  29,  1908;  P.  Jf2,  438,  Sept.  2,  1890. 

XVI  G  1.  In  the  case  of  a  soldier  who  was  dishonorably  discharged 
pursuant  to  an  illegal  sentence,  lield,  that  as  the  sentence  was  null 
and  void  the  dishonorable  discharge  was  of  no  effect  and  the  soldier 
could  be  returned  to  duty  without  trial.^  P.  4I,  39,  May  20,  1900; 
C.  14643,  Dec.  22,  1903;  16710,  Feb.  29,  1908. 

XVI  G  2.  In  the  case  of  a  soldier  who,  pursuant  to  an  illegal 
sentence,  was  dishonorably  discharged,  held  that  the  dishonorable 
discharge  was  of  no  effect  and  that  its  revocation  would  place  him  in 
exactly  the  same  status  that  he  was  in  preceding  his  being  brought  to 
trial.  Held  further  that  he  could  be  brought  to  trial  before  a  legally 
constituted  tribunal  on  the  original  charges.     C.  16710,  Feb.  29,  1908. 

XVI  G  3.  A  soldier  pursuant  to  an  illegal  sentence  was  dishonorably 
discharged.  Held  that  the  dishonorable  discharge  was  of  no  effect 
and  that  his  status  was  the  same  as  it  was  preceding  his  trial  and  that 
he  could  be  discharged  without  honor,  as  of  the  date  when  the  dis- 
charge without  honor  was  delivered,  even  though  he  had  been  con- 

^  See  "In  re  Bird,"  in  which  it  was  held  that  the  dishonorable  discharge  of  a  soldier 
pursuant  to  an  illegal  sentence  rendered  by  a  court  which  had  no  jurisdiction  did 
not  operate  to  change  in  any  particular  the  status  of  the  soldier,  and  was  stated  that 
it  was  axiomatic  that  "a  void  judgment  or  sentence  works  no  change  in  the  status 
of  the  person  or  thing  against  or  concerning  which  it  is  given  or  pronounced . "  (3  Fed. 
Cases,  427.) 

-  See  General  Court-Martial  Orders  No.  47,  Headquarters  Department  of  the  Colum- 
bia, 1885,  in  which  a  military  convict  who  was  serving  a  two-years  sentence  was 
released  from  confinement  and  attached  to  one  of  the  companies  of  the  Fourteenth 
Infantry,  as  it  was  discovered  that  there  was  a  fatal  defect  in  the  proceedings  of  the 
court  which  sentenced  him.  See  also  General  Court-Martial  Orders  No.  23,  Depart- 
ment of  Dakota,  1888,  which  set  aside  void  sentences  and  restored  to  duty  soldiei-s 
who  pursuant  to  those  void  sentences  had  been  dishonorably  discharged  and  sentenced 
to  confinement. 


460  DISCHAKGE   XVI   G  4. 

fined  in  a  military  prison  as  a  general  prisoner.^  C.  16710,  Feb.  27 
and  29,  and  Aug.  14, 1908;  I4643,  Jan.  6, 1904. 

XVI  G  4.  A  colonel  who  was  temporarily  in  command  of  the  Army 
of  Cuban  Pacification  issued  orders  purporting  to  convene  general 
courts-martial.  The  officers  designated  met  and  tried  cases  and 
sentenced  soldiers  to  dishonorable  discharge.  Held  that  as  a  colonel 
in  command  of  an  army  has  no  authority  to  convene  a  court-martial 
all  the  sentences  were  null  and  void  and  the  dishonorable  discharges 
based  upon  them  were  of  no  effect  and  that  the  status  of  the  men 
concerned  was  that  of  men  awaiting  trial  under  the  original  charges, 
a  16710,  July  23,  24,  26,  and  29, 1908,  and  Aug.  12  and  I4, 1908. 

XVI  G  5.  A  soldier  during  the  Civil  War  was  tried  by  a  court 
composed  of  enlisted  men  and  sentenced  to  be  drummed  out  of  the 
service.  Entry  was  made  on  the  records  that  he  was  discharged. 
Held  that  he  had  not  been  tried  and  that  the  so-called  sentence  was 
illegal,  and  the  discharge,  for  that  reason,  inoperative.  C.  2218, 
May  8,  1896. 

XVI  H.  A  lieutenant  of  the  Forty-third  New  York  Infantry  was 
dropped  in  1861  by  order  on  account  of  absence  without  leave.  Legis- 
lative relief  was  afforded  in  his  case  by  means  of  a  private  act,  which 

Erovided  that  he  should  hereafter  be  held  and  considered  to  have  been 
onorably  discharged  from  the  military  service  of  the  United  States. 
Held  that  this  act  authorized  a  mutilation  of  the  records  and  an  entry 
on  the  old  records,  but  that  it  did  not  authorize  the  issuance  of  an 
honorable  discharge  certificate.     C.  17797,  Apr.  12,  1905. 

XVII  A.  An  officer  was  lawfully  separated  from  the  military 
service  by  the  legally  approved  sentence  of  a  general  court-martial. 
Held  that  it  was  beyond  the  power  of  the  Executive  to  grant  an 
honorable  discharge,  to  revoke  the  dismissal  which  had  been  fully 
executed,  or  to  issue  an  instrument  in  the  nature  of  a  discharge 
certificate  purporting  to  separate  the  applicant  from  the  volunteer 
service  in  any  other  way  than  that  determined  by  the  approved 
sentence  of  the  court-martial  in  his  case.^     C.  23153,  May  4,  1908. 

Xyil  B.  Section  5  of  the  act  of  April  23,  1908  (35  Stat.  67),  provides 
that  if  the  unfavorable  finding  of  an  examining  board  in  the  case  of  a 
medical  officer  is  concurred  m  by  the  board  of  review,  the  officer 
reported  disqualified  for  promotion  shall,  if  a  first  lieutenant  or 
captain,  be  honorably  discharged  from  the  service  with  one  year's 
pay.  Held  that  in  such  a  case  the  discharge  should  be  issued  on  the 
date  when  the  officer's  failure  to  qualify  was  reported  to  the  Secretary 
of  War,  or  so  soon  thereafter  as,  by  an  exercise  of  reasonable  diligence, 
a  discharge  certificate  could  be  procured  and  forwarded  to  the  officer 
whose  connection  with  the  military  service  it  operates  to  sever. 
C.  23135,  Dec.  11,  1909. 

XVIII  A.  Certain  cadets  were  dismissed  by  order  of  the  Secretary 
of  War,  which  order  was  approved  by  the  President.  Held  that  as 
the  dismissal  of  these  cadets  had  been  completely  executed  the 
President  could  not  reconsider  or  revoke  the  order  for  their  discharge 
or  pardon  them  so  as  to  restore  them  to  their  former  status  at  the 
Military  Academy,  and  that  an  act  of  Congress  would  be  necessary. 

^  See  pars.  3,  4,  5,  6,  and  7,  Special  Orders  No.  52,  War  Department,  Mar.  3,  1908. 
2  See  4  Op.  Atty.  Gen.  274,  306;  also  1  Winthrop's  Military  Law  and  Precedents, 
619;  and  Blake  v.  U.  S.,  103  U.  S.,  227. 


DISCHARGE  XIX.  461 

C.  29j!i71j  Aug.  24,  and  Oct.  16,  1909.  Similarly  held  in  the  case  of  a; 
cadet  who  was  discharged  for  disability.     C.  25946,  Dec.  11,  1909. 

XIX.  The  Secretary  of  War  may  by  an  act  of  Congress  *  be  author- 
ized and  required  to  amend  the  rolls  and  records  so  as  to  show  that  a 
soldier  was  honorably  discharged  as  of  the  date  on  which  he  was  in 
fact  dishonorably  discharged,  and  give  him  a  discharge  certificate  to 
that  effect.     C.  2047,  Feb.,  1896;  13645,  Nov.  17,  1903. 

XX  A.  The  President  nominated  a  man  as  an  officer  in  the  Vol- 
unteer force  during  the  Civil  War.  The  Senate  declined  to  confirm 
the  appointment.  The  President  then  revoked  the  appointment. 
Held  that  the  revocation  by  the  President  amounted  to  a  discharge 
from  the  service.     C.  9096,  Dec.  11,  1900. 

XX  B.  Held  that  it  is  within  the  authority  of  the  President  to  ter- 
minate the  engagement  of  any  officer  or  enlisted  man  of  the  Philippine 
Scouts  by  an  honorable  discharge  whenever  his  services  are  no  longer 
needed  or  when  the  public  interest  demands  his  separation  from  the 
military  service.  Further  held  that  it  is  not  within  the  power  of  the 
Executive  to  summarily  dismiss  an  officer  of  the  Philippine  Scouts 
by  way  of  punishment  for  an  offense,  as  such  separation  from  the 
service  is  expressly  forbidden  by  section  1229,  R.  S.,  and  the  ninety- 
ninth  article  of  war.     C.  22129,  Dec.  10,  1907. 

XX  C.  In  the  case  of  six  soldiers  who  had  been  imprisoned  under 
sentence  of  a  civil  court,  who  were  plainly  undesirable  as  soldiers, 
and  concerning  whom  it  was  clear  that  they  should  be  summarily 
discharged  as  being  an  incubus  to  the  service,  held  that  the  depart- 
ment commander  had  authority  to  order  the  discharge  of  these 
men  without  honor,  as  it  was  not  one  of  the  cases  coming  within  that 
part  of  the  regulations  which  requires  the  action  of  the  Secretary  of 
War.     C.  23259,  Jan.  14  and  19,  1909. 

XX  D  1.  The  fourth  article  of  war  vests  in  the  commanding  officer 
of  a  department  specific  authority  to  discharge  enlisted  men.  Held 
that  there  can  be  no  doubt  as  to  the  authority  of  the  command- 
ing general  of  the  department  as  an  incident  of  his  power  to  discharge, 
to  determine  from  the  report  of  the  medical  officer  the  nature  of  the 
discharge  to  be  issued  in  each  case  in  cases  of  disability.  If  the  dis- 
ability was  contracted  in  the  line  of  duty  an  honorable  discharge 
issues^  If,  however,  the  disabilitv  is  shown  to  be  due  to  the  vicious 
habits  of  the  soldier,  an  honorable  discharge  can  not  issue,  and  the 
separation  of  the  soldier  from  the  military  service  will  be  accomplished 
in  the  operation  of  a  discharge  without  honor.  C.  24131,  Nov.  24, 
1908.^ 

XX  D  2.  The  commanding  officer,  district  of  North  Alaska, 
requested  authority  to  discharge  an  enlisted  man  on  surgeon's  cer- 
tificate of  disability;  held  that  under  the  fourth  article  of  war  he  could 
not  be  given  such  authority.     C.  6565,  June  13,  1899. 

^  The  act  of  March  3, 1909  (35  Stat.,  836),  authorized  the  Secretary  of  War  to  appoint 
a  court  of  inquiry  to  pass  on  the  eligibility  of  all  men  discharged  without  honor  from 
three  companies  of  the  Twenty-fifth  Infantry.  The  title  described  the  act  as  one  "To 
correct  the  records  and  authorize  the  reenlistment, "  etc.  The  body  of  the  act  made 
no  provision  for  amending  the  rolls  but  provided  that  if  the  court  should  report  favor- 
ably in  any  case,  such  man  should  be  deemed  to  have  reenlisted  immediately  after 
his  discharge  without  honor.  A  court  of  inquiry  was  appointed  by  par.  7,  S.  O.  No. 
79,  series  War  Dept.  1909. 

2  X  Comp.  Dec.  375,  Oct.  23, 1903.  General  Order  174,  War  Department,  Washing- 
ton, Aug.  12,  1909,  directs  that  hereafter  orders  for  the  discharge  of  enlisted  men  on 
account  of  disability  will  not  be  issued  except  by  the  War  Department. 


462  DISCHARGE   XX  E. 

XX  E.  A  Signal  Corps  soldier  was  under  orders  for  service  in  the 
Philippines  Division,  and  preceding  his  departure  for  those  islands 
signed  a  written  agreement  that  he  would  reenlist  for  further  service 
in  the  islands.  When  the  time  approached  for  his  discharge  he 
declined  to  reenlist.  The  commanding  general,  Philippines  Division, 
recommended  that  this  soldier  be  discharged  without  honor  and  that 
authority  be  given  him,  the  commanding  general,  to  grant  discharges 
.without  honor  in  similar  cases.  Held  that  the  soldier  had  merely 
changed  his  mind,  and  that  as  an  honest  change  of  intention  does  not 
taint  a  soldier's  character,  his  change  of  intention  could  not  be  used 
as  a  basis  for  granting  him  a  discharge  without  honor,  and  recom- 
mended that  power  should  not  be  given  to  the  commanding  general, 
Philippines  Division,  to  grant  discharges  without  honor  in  similar 
cases.     C.  15581,  Aug.  5,  1909. 

XX  F.  Held  that  a  court-martial  can  not  impose  either  an  honor- 
able discharge  or  a  discharge  without  honor,  nor  can  a  dishonorable 
discharge  be  imposed  except  by  sentence  of  court-martial.  C.  11741, 
Jan.  11,  1902. 

XXI  A.  An  officer  of  Volunteers  was  examined  as  to  his  qualifica- 
tions by  a  board  of  officers  under  "an  act  to  provide  for  the  examina- 
tion of  certain  officers  of  the  Army,"  approved  June  25, 1864,  and  was 
reported  mentally  disqualified  for  the  duties  of  his  office  and  was 
thereupon  dismissed  by  Executive  order  in  accordance  with  the  pro- 
visions of  the  act;  held  that  the  dismissal  was. in  effect  an  honorable 
discharge  from  the  service.^  P.  46,  333,  Apr.,  1891;  65,  31,  May, 
1894. 

XXI  B.  Held  that  although  an  officer's  discharge  may  not  have 
been  for  disability,  the  disability  may  have  existed  and  may  be 
proved.     C.  10396,  May  14,  1901. 

XXII  A.  An  honorable  discharge  releases  from  the  particular  con- 
tract and  term  of  enlistment  to  which  it  relates,  and  does  not  there- 
fore reheve  the  soldier  from  the  consequences  of  a  desertion  committed 
during  a  prior  enlistment.  P.  49,  442,  Oct.,  1891;  53, 179,  Apr.,  1892. 
Similarly  held  with  respect  to  a  discharge  without  honor.  0.  2115, 
Mar.,  1896.  These  discharges  release  the  soldier  from  amenability 
for  all  offenses  charged  against  him  within  the  particular  term  to 
which  they  relate,  including  that  of  desertion,  except  as  provided  in 
the  sixtieth  article  of  war.     C.  2041,  May,  1896. 

XXII  B.  A  dishonorable  discharge  does  not  relate  to  any  par- 
ticular contract  or  term  of  enlistment;  it  is  a  discharge  from  the 
military  service  as  a  punishment — a  complete  expulsion  from  the 
Army  and  covers  all  unexpired  enlistments.  A  soldier  thus  dishonor- 
ably discharged  can  not  be  made  amenable  for  a  desertion  or  other 
military  offense  committed  under  a  prior  enlistment  except  as  pro- 
vided in  the  sixtieth  article  of  war.  Nor  would  a  subsequent  enlist- 
ment after  such  dishonorable  discharge  operate  to  revive  the  amen- 
abihty  of  the  soldier  for  such  offenses.  P.  53,  46,  179,  Apr.,  1892; 
55,  165,  Aug.,  1892;  59,  55,  86,  Apr.,  1893;  G.  3585,  Nov.,  1897; 
7614,  Jan.  25,  1900;  13579,  Nov.  3,  1902;  24658,  Mar.  13,  1909.  ^ 

XXV  A.  A  post  commissary  sergeant  was  charged  with  serious 
irregularities  in  connection  with  the  sale  to  unauthorized  persons  of 
of  commissary  stores.  Recommendation  was  made  that  he  be  sum- 
marily discharged.     Held  that  a  noncommissioned  ofTicer  of  a  number 

1  See  Clrc.  4,  A.  G.  O.,  1891. 


DISCHARGE DISCHARGED   SOLDIER.  463 

of  years'  standing  is  entitled  to  consideration  and  that  no  man  should 
be  summarily  discharged  for  an  actual  concrete  offense  without  having 
been  given  ample  opportunity  to  present  a  defense  in  justification  of 
his  act.     C.  20086,  Aug.  3,  1911. 

XXVI  A.  An  Austrian  subject  enlisted  in  the  Army  and  afterwards 
deserted;  subsequently,  while  held  as  a  deserter,  he  asked  to  be  dis- 
charged to  enable  him  to  return  to  Austria,  there  to  meet  his  obliga- 
tion to  render  military  service ;  held  that  as  he  left  his  native  country 
and  enlisted  in  the  United  States  Army,  he  came  under  the  jurisdic- 
tion of  the  United  States,  and  that  the  ridit  of  the  United  States  to 
hold  liim  to  his  enlistment  and  to  punish  Tiim  for  offenses  committed 
thereunder,  was  clearly  paramount  to  the  claim  of  his  home  Govern- 
ment; and  that,  if  the  appUcant  thought  otherwise,  the  proper  course 
would  be  for  him  to  have  the  case  considered  tlirough  diplomatic 
channels.     C.  12968,  July  17, 1902,  Nov.  12, 1908,  and  Oct.  1,  1910. 

CROSS   REFERENCES. 

As  pardon See  Pardon  XVI  D. 

Effect  on  statm See  Discipline  VIII II;  la. 

From  militia See  Militia  XVI  J. 

Muster  out  is See  Volunteer  Army  IV  B  3;  5. 

Of  civilian  employee See  Civilian  Employees  XI  B  to  C. 

Of  drafted  vien See  Enlistment  II  C. 

Of  medical  officer See  Army  I  G  3  d  (2)  (6). 

Of  medical  Reserve  Corps  officers See  Army  I  G  3  d  ^3)  (c)  [3]. 

Of  seaman See  Civilian  Employees  XV  A. 

Payment See  Pay  and  Allowances  I  A  1  a. 

Revocation  of. See  Discipline  XV  E  9. 

While  in  confinement See  Discipline  XII  B  3  g  (2). 

DISCHARGE   BY   CIVIL   COURT. 

See  Discharge  VII  A;  B. 

DISCHARGE   BY   PURCHASE. 

See  Discharge  VI  A;  D  1  to  7. 

See  Articles  op  War,  XXI  C  2  d. 

Deposit  for See  Pay  and  Allowances  I  C  7  a  to  b. 

Deposit  of  mx)ney  paid See  Appropriations  XXXV. 

DISCHARGE   BY   WAY   OF  FAVOR. 

See  Discharge  V  C;  VI  to  VII. 
Waiver  of  travel  allowance See  Pay  and  Allowances  III  C  2  c  (3). 

DISCHARGED   OFFICER   OR   SOLDIER. 

Arrest  of See  Command  V  A  6  b  (1)  (6). 

Not  amenable  under  48  Articles  of  War See  Articles  of  War  XLVIII  B. 

Trial  of See  Articles  of  War  LX  E  1;  4. 

DISCHARGED    SOLDIER. 

Award  of  certificate  of  merit  to See  Insignia  of  Merit  II  G. 

Eligibility  for  gunner's  badge See  Insignia  of  Merit  III  0. 

Liability  to  taxation See  Tax  I  to  II. 


464        DISCHARGE   FOB  CONVENIENCE — DISCIPLINE:   SYNOPSIS. 

DISCHARGE   FOR   CONVENIENCE   OF   GOVERNMENT. 

See  Enlistment  I  B  2  b  (1),  c. 
DISCHARGE   WITHOUT  HONOR. 

See  Discharge  I  A;  III  to  IV;  XI  B  1  a. 

Continuous  service  can  not  antedate See  Pay  and  Allowances  I  C  5  b  (1). 

Department  cormnander See  Discharge  XX  C. 

Effect  on  status See  Discharge  XXII  A. 

See  Discipline  VIII  lie. 

See  Retirement  II  A  1  b. 

Evidential  value  to  Pay  Department See  Desertion  XIV  A  4. 

For  desertion See  Desertion  XVI  A. 

For  fraudulent  enlistment See  Enlistment  I A  9  f  (1) ;  g  (1) ;  (2) ;  (4) ;  h 

See  Pay  and  Allowances  III  C  2  a. 

Illegal  dishonorable  discharge See  Discharge  XVI  G;  G  3. 

Of  cadet See  Office  I V  E  2  g  (1 )  (c)  . 

Of  insane  soldier See  Desertion  VII  A  2;  XIV  B. 

See  Discharge  XIII  D  4  a. 

Of  men  guilty  of  crimes See  Articles  of  War  LXII  C  6. 

Of  officer See  Office  IV  D  6;  E  2  e. 

Of  soldier  in  confinement See  Discharge  XIII  D  6  b. 

Not  to  be  given  in  addition  to  punishment.  .See  Enlistment  I  A  9  i. 

Not  revocable See  Discharge  XV  C;  CI;  Die. 

Reasons  for See  Discharge  II  B  1. 

Reenlistment  after See  Enlistment  I  D  3  c  (17) ;  (18)  (c). 

Retired  soldier See  Retirement  II  F  3. 

Sentence  null See  Discharge  XIII  E  1. 

Soldier  takes  what  clothing f See  Allowances  II  A  3  a  (4)  (b). 

Travel  allowance  forfeited See  Pay  and  Allowances  III  C  2  c  (1) ;  (2). 

DISCIPLINE.! 
I.  ARREST. 

A.  Force  That  Can  be  Used. 

1.  As  much  as  is  necessary Page  480 

2.  Private  house  can  not  be  entered. 

a.  Public  parts  of  public  house. 

B.  Status. 

1.  Does  not  involve  irons. 

2.  Inconsistent  with  duty. 

3.  Officer  in  arrest  can  prefer  charges Page  481 

C.  Bail  Can  Not  be  Accepted. 

D.  Officers. 

1.  Placed  in  arrest  by  commanding  officer  only. 

2.  Arrest  not  a  demandable  right. 

3.  Manner  of  placing  in  arrest. 

4.  Limits  of  arrest. 

E.  Enlisted  Men. 

1.  Arrest  of  by  noncommissioned  officers. 

2.  Can  not  be  punished  summarily  and  tried  for  same  offense. 

3.  Paroled  by  civil  courts  can  be  arrested Page  482 


1  The  Divisions  of  DISCIPLINE  are:  Page. 

I.  Arrest 464 

II.  Charges 465 

III.  Convening  authority 466 

IV.  Judge  advocate 467 

V.  Accused 468 

VI.  Member 468 

VII.  Authority  of  court 469 

VIII.  Jurisdiction  of  court 469 

IX.  Procedure  of  court 470 


Page. 

X.  Witnesses 471 

XI.  Evidence 472 

XII.  Action  by  court 473 

XIII.  Record  of  court. 475 

XIV.  Reviewing  authority 475 

XV.  Revision  by  J.  A.  General 477 

XVI.  Inferior  courts 478 

XVII.  Punishment  479 

XV  III.  Board  of  investigation 480 


discipline:  synopsis.  465 

n.  CHARGES. 

A.  Military  Offenses. 

1.  Defined, 

a.  Same  offense  repeated. 

b.  One  act — two  or  more  offenses. 

c.  Offenses  that  are  not  military  offenses. 

(1)  General  incapacity. 

(2)  Worthlessness. 

d.  Petitioning  Congress  over  head  of  Secretary  of  War. 

B.  May  be  Initiated  by  Anybody. 

C.  May  be  Preferred  by  Officers  Only Page  483 

D.  Preparation  of. 

1.  Consists  of  two  parts. 

a.  Each  charge  may  have  several  specifications. 

b.  Each  specification  must  be  appropriate  to  its  charge. 

c.  Reference  to  a  writing  should  quote  the  writing. 

2.  Essentials. 

3.  Definite  terms  must  be  used Page  484 

4.  Put  under  proper  article  of  war. 

5.  Charge  may  recite  number  of  article  violated. 

6.  Varying  punishment  depending  on  willfulness  or  negligence. 

7.  Joint  charges. 

8.  Description  of  person. 

a.  Pronoun  in  first  person  not  to  be  used Page  485 

b.  Initials  may  be  used. 

9.  Time  and  place  to  be  alleged. 

a.  "On  or  about"  and  "at  or  near." 

b.  "On  route  between and "  and  "between 

and day  of . " Page  486 

10.  Time. 

a.  Reasonably  exact  allegation. 

b.  "From  — to— ." 

c.  "Between  —  and  —  "in  offenses  of  omission. 

d.  "During  a  period  of days' '  indefinite. 

11.  Do  not. 

a.  Plead  evidence. 

b.  Plead  secondary  evidence Page  487 

c.  Plead  minor  included  offense. 

d.  Plead  alternatively. 

12.  Signing  of  charges. 

a.  By  whom? 

(1)  WTien  prepared  by  Judge  Advocate  General. 

13.  Twentieth  article  of  v*ar. 

a.  Particular  acts  or  words  should  be  set  forth. 

14.  Twenty-first  article  of  war. 

a.  May  add  "  thereby  causing  his  death  " Page  488 

15.  Fifty-eighth  article  of  war. 

a.  Not  necessary  to  allege  time  of  war. 

16.  Sixtieth  article  of  war. 

a.  Not  necessary  to  allege  intent  to  defraud. 

b.  Or  in  embezzlement  that  money  or  property  was  furnished 

or  intended  for  military  service  of  United  States. 

17.  Sixty-first  article  of  war. 

a.  Abusive  language  to  commanding  oflScer. 
31106°— 12 30 


466  discipline:  synopsis. 

n.  CHARGES— Continued. 

D.  Preparation  of — Continued. 

18.  Sixty-second  article  of  war. 

a.  Drunkenness  not  on  duty. 

b.  Manner  of  writing  charge. 

c.  Instances  of  incorrect  allegation Page  489 

d.  Violation  of  Army  regulations. 

19.  All  crimes  should  be  charged. 

20.  Disobedience  by  general  prisoner  should  be  charged  under  sixty- 

second  article  of  war. 
lE.  List  op  Witnesses. 

F.  Preferring  Charges. 

1,  At  once  after  commission  of  offense. 

2.  Accumulation  of  charges Page  490 

G.  Forwarding  by  Commanding  Officer. 

1 .  Not  required  to  state  character  of  accused. 
H.  Amendment  of  Charges. 

1.  Before  trial. 

2.  By  plea  in  abatement. 
I.  Withdrawal  of  Charges. 

K.  Disposition  of  Original  Charges. 

1.  After  arraignment Page  491 

m.  CONVENING  AUTHORITY  FOR  COURTS-MARTIAL. 

A.  Regulations  as  to  Constitution  of  Court  are  Mandatory. 

B.  Commander  in  Chief. 

1.  Secretary's  order  is  order  of  President. 

2.  Trial  under  1230,  Revised  Statutes. 

a.  Application  by  dismissed  officer  must  be  made  in  reasonable 
time Page  492 

h.  Application  can  not  be  considered  after  muster  out  of  Volun- 
teer Army. 

C.  Appointment  of  Court. 

1.  Members. 

a.  Officers  excepted  from  control  of  convening  authority. 

b.  Officers  on  existing  courts. 

c.  Volunteers  may  be  detailed  to  try  regulars. 

d.  Officers  biased,  etc.,  should  not  be  detailed. 

e.  Convening  authority  sole  judge  of  availability  with  regard 

to  rank Page  493 

I.  Medical  Reserve  Corps  officers  and  dental  surgeons  available. 

2.  Judge  advocate. 

a.  Commissioned  officers. 

b.  Civilians. 

c.  Officers  who  should  not  be  detailed. 

(1)  The  accuser  or  an  officer  personally  interested. 

(2)  An  officer  with  charges  against  accused. 

(3)  Simply  to  authenticate  record Page  494 

3.  Can  not  be  delegated  as  a  routine  duty  to  staff  officer. 

4.  Convening  order. 

5.  Relief  of  judge  advocate  and  appointment  of  new  one, 

D.  Authority  over  Court. 

E.  Action  on  Charges. 

1.  Two  sets  should  be  consolidated. 


discipline:  synopsis.  467 

in.  CONVENING  AUTHORITY  FOR  COURTS-MARTIAL— Continued. 

E.  Action  on  Charges — Continued. 

2.  Enlisted  men. 

a.  Convening  authority  can  not  impose  punishment  when 

restoring  deserter  to  duty. 

b.  Convening  authority's  action  is  not  affected  by  maximum 

punishment  order. 

3.  Convening  authority  carefully  considers  charges Page  495 

a.  May  try  soldiers  for  fraudulent  enlistment  and  desertion 

therefrom. 

b.  Desertion  should  be  tried  by  general  court-martial,  but  join- 

ing the  enemy  by  military  commission. 

4.  May  decline  to  surrender  accused  to  civil  authorities. 

5.  Referring  cases  to  court. 

a.  Officer  under  conservator  may  be  tried. 

b.  Question  of  moral  obliquity  should  be  referred  to  general 

court-martial  rather  than  to  examining  board. 

6.  May  direct  nolle  prosequi. 

7.  May  afford  accused  opportunity  to  explain  charges. 

F.  Communication  With  Court  and  Judge  Advocate Page  496 

G.  Convening  Order. 

1.  Must  show  that  convening  officer  had  authority. 
IV.  JUDGE  ADVOCATE. 

A.  Separate  for  Each  Court. 

B.  Authority  of  Judge  Advocate. 

1.  To  alter  charges. 

2.  Employ  reporter Page  497 

a.  Or  use  enlisted  man  as  such. 

3.  To  subpoena  witnesses. 

a.  To  testify  in  court. 

(1)  To  testify  by  deposition. 

b.  Can  not  hire  service  of  subpoenas. 

c.  Can  certify  expense  in  locating  witnesses Page  498 

d.  May  employ  expert  witness. 

(1)  If  question  of  insanity  is  raised. 

4.  To  issue  process. 

a.  Detaining  civilian  witnesses  in  guardhouse. 

5.  No  authority  over  accused. 

C.  Duty  of  Judge  Advocate. 

1.  As  adviser  to  court. 

2.  To  the  accused. 

a.  As  adviser. 

(1)  As  to  plea Page  499 

3.  To  prepare  record. 

a.  Judge  advocate  as  witness. 

b.  Authenticates  record. 

(1)  If  two  have  been  detailed,  last  one  authenticates 

record. 

(2)  Should  bind  record. 

(3)  Should  brief  record. 

(4)  May  print  record Page  500 

4.  To  administer  oaths. 

a.  To  reporter. 

b.  Of  office  and  for  purposes  of  military  administration.    (See 

Office.) 


468  discipline:  synopsis. 

IV.  JUDGE  ADVOCATE— Continued. 

D.  Executes  Orders  of  Court. 

E.  Presumption  That  he  Does  his  Duty. 

F.  Absent  from  Session. 

G.  Not  Unavailable  for  Other  Duty. 

H.  No  Officer  Can  Act  as  Trial  Judge  Advocate  Except  by  Detail. 
I.  Counsel  to  Assist  Judge  Advocate. 

1.  Used  only  in  important  and  complicated  cases. 

2.  Can  not  be  employed  by  judge  advocate Page  501 

K.  Advised  by  Accuser  or  Prosecuting  Witness. 

L.  Closing  Address  to  Court. 
M.  Transmission  of  Record. 

N.  Not  Subject  to  Challenge Page  502 

0.  May  Challenge  for  Cause. 
V.  ACCUSED. 

A.  Trial  is  Not  a  Right. 

B.  Can  Not  be  Compelled  to  Criminate  Himself. 

1.  But  figure  cards  may  be  introduced  as  evidence  of  identification. 

C.  Rights  of  Accused  are  Independent  of  his  Rank. 

D.  Defense. 

1.  To  prevent  embarrassment  a  minimum  of  restraint  placed  on 

accused. 

2.  Insuflicient  defense. 

a.  Assault  and  battery  by  officer  on  soldier Page  503 

b.  In  case  of  disrespectful  letter  to  superior. 

c.  Duplication  of  pay  accounts. 

3.  Should  not  be  required  while  on  trial  to  meet  new  charges  before 

same  court. 

4.  Failure  to  note  variance  at  arraignment  is  waiver. 

5.  Drunkenness  caused  by  medicine  prescribed  by  surgeon. 

6.  Refusal  to  obey  illegal  order Page  504 

E.  What  is  Waived  by  Pleading  the  General  Issue? 

F.  Demand  for  "Election"  of  Charges  Not  Allowable. 

G.  Counsel. 

1.  Not  a  right Page  505 

2.  Interview  with  accused  and  witnesses. 

3.  Officers  not  suitable  for  duty  as  counsel. 

4.  To  employ  all  honorable  means  to  acquit. 

5.  Civil  counsel  not  furnished  by  United  States Page  506 

*  6.  Accused  must  bear  expense  of. 

H.  Statement  of  Accused. 

1.  Permitted. 

2.  Admissions  bind  him. 

3.  Freedom  of  expression  allowed. 

4.  If  written,  to  be  signed. 

5.  Not  to  be  published  by  accused. 
I.  Acquittal. 

1.  Leaves  accused  in  same  status  as  before  trial. 
VI.  MEMBER Page  507 

A.  Adding  New  Members. 

B.  Sworn  as  a  Witness. 

C.  Arrest  Preceding  and  Following  Membership  Does  Not  Render 

Member  Ineligible  to  Sit. 

D.  Absence  of  Member  from  Session. 


discipline:  synopsis.  469 

VI.  MEMBER— Continued. 

E.  May  be  Arrested. 

F.  Separation  of  Member  From  the  Service. 

G.  President  of  the  Court. 

1.  By  virtue  of  seniority  of  rank Page  508 

2.  Duties. 

3.  Does  not  exercii<e  command. 
Vn.  AUTHORITY  OF  COURT-MARTIAL. 

A.  Source  Statutory. 

B.  Over  Charges. 

1.  If  not  signed. 

2.  To  change  charges Page  509 

C.  Over  Persons. 

1.  Members. 

a.  Can  not  seat  them  in  different  order  than  expressed  in  con- 
vening order. 

2.  Judge  Advocate. 

3.  Accused. 

D.  Can  Not  Assign  Counsel. 

E.  May  Ask  for  Witnesses Page  510 

1.  Or  witness  with  papers. 

F.  In  Case  of  False  Swearing  Befobb  it. 
Vm.  JURISDICTION  OF  COURT-MARTIAL. 

A.  Criminal,  not  Civil. 

1.  Can  not  rescind  contract  or  adjudge  damages. 

2.  Can  not  order  payment  of  debt. 

B.  Not  Territorial Page  511 

C.  No  Presumption  in  Favor  of  Jurisdiction. 

D.  Attaches  When? 

1.  Placed  in  arrest  or  charges  served. 

2.  Arrested  on  day  of  discharge  before  delivery  of  certificate. 

3.  Deserter  confined  under  charges Page  512 

4.  Jurisdiction  by  civil  courts  over  military  offenders  is  abandoned. 

E.  Double  Jeopardy.    {See  One  hundred  and  second  article  of  war.) 

F.  Under  General  Article. 

1.  Loose  and  indefinite  pleading. 

2.  Indefinite  pleading  under  specific  article. 

G.  Over  Person. 

1.  Accused. 

a.  Need  not  be  in  arrest. 

b.  Offense  committed  while  in  arrest. 

c.  Officer  under  suspension Page  513 

(1)  By  sentence  or  commutation  thereof. 

2.  Civilians. 

a.  Trial  of  by  military  court  is  violation  of  sixth  amendment 

to  Constitution. 

(1)  Statute  granting  jurisdiction  in  time  of  peace  in 

such  cases  is  unconstitutional. 

(2)  Between  enrollment  and  muster-in  of  volunteers 

status  is  that  of  civilians. 
(8)  A  court  has  no  jurisdiction  simply  because  a  civilian 
commits  an  offense  against  the  Commander  in 
Chief  or  any  high  official  of  the  Army. 

b.  Exception — general  prisoners  are  subject  to  trial  by  court- 

martial. 


470  discipline:  synopsis. 

vra.  JURISDICTION  OF  COURT-MARTIAL— Continued. 
H.  Not  Lost. 

1.  By  change  in  status  of  accuser Page  514 

2.  By  escape  of  accused. 

3.  Or  set  aside  by  process  of  State  court. 
I.  Ends. 

1.  With  separation  from  service. 

a.  Offense  not  discovered  until  after  separation Page  515 

b.  Not  revived  by  reentry  into  service. 

c.  Rule  in  case  of  deserters. 

d.  Even  if  kept  under  control  as  a  general  prisoner. 

2.  Jurisdiction  over  cadet  continues  after  promotion   to  commis- 

sioned office . 
IX.  PROCEDURE  OF  COURTS-MARTIAL. 

A.  How  Determined Page  516 

B.  Time  op  Session. 

1.  Sunday. 

C.  Doors  Opened  or  Closed  to  Public. 

D.  Between  Adjournments  Court  May  Try  Other  Cases. 

E.  Arraignment. 

1.  One  act — several  charges. 

2.  Changing  of  plea. 

3.  Evidence  not  to  be  received  by  plea. 

4.  Accused  declines  to  plead — plea  "not  guilty''  entered. 

5.  Plea  is  guilty. 

a.  May  call  for  evidence Page  517 

(1)  Statement  made  with  plea. 

(2)  Statement  inconsistent  with  plea Page  518 

(3)  Even  after  accused  makes  final  statement. 

b.  May  not  receive  evidence  after  reaching  a  finding. 

F.  Special  Pleas. 

1.  Plea  in  bar. 

a.  Pardon. 

(1)  Constructive  pardon Page  519 

(2)  Reduction  of  noncommissioned  officer  to  ranks  and 

confinement  can  not  be  pleaded  in  bar  on  trial  for 
offense. 

2.  Pleas  in  abatement. 

a.  Objection  to  form  of  charges. 

3.  Motions. 

a.  To  strike  out. 

G.  Suspension  of  Trial. 

1.  When  accused  develops  insanity Page  520 

H.  Closed  Sessions. 

1.  Judge-advocate  excluded. 

a.  Not  after  court  has  arrived  at  a  finding  and  sentence. 

2.  May  be  held  before  court  is  sworn. 
I.  Final  Statement  of  Accused. 

1.  In  cases  of  desertion. 

2.  In  cases  of  larceny. 
K.  Vote  op  Court. 

1.  Majority  vote  required Page  521 

2.  Polling  of  court  not  authorized. 

3.  No  minority  report  to  be  made. 


discipline:  synopsis.  471 

n.  PROCEDURE  OF  COURTS-MARTIAL— Continued. 
L.  Adjournment. 

1.  Requires  majority  vote. 

2.  Sine  die. 

M.  Authentication Page  522 

N.  Revision. 

1.  Court  may  be  reconvened  by  convening  authority. 

2.  Action  recommended  in  reconvening  order  directory  only. 

3.  Five  members  must  be  present. 

4.  Accused  need  not  be  present Page  523 

5.  No  testimony  to  be  received. 

6.  Previous  record  not  to  be  altered  or  mutilated — corrections  to  be 

made  in  new  proceedings. 

a.  This  revision  is  different  from  daily  revision. 

b.  Indorsement  by  judge  advocate  does  not  amend  record. 

7.  When  court  can  not  be  reconvened  no  revision  possible. 

0.  Dissolution  of  Court. 
X.  WITNESSES. 

A.  Competent. 

1.  Deserter Page  524 

2.  Members  and  judge  advocate  of  court. 

3.  Reviewing  authority. 

4.  Persons  not  named  in  list. 

5.  Wife  of  prosecuting  witness. 

B.  Incompetent. 

1.  Wife  of  accused. 

a.  Trial  of  husband  for  nonsupport. 

2.  Insane  person. 

3.  Child — as  to  offenses  against  it Page  525 

C.  Competency. 

1.  Rules  determining,  same  as  in  criminal  courts. 

D.  Accused  Entitled  to  Summoning  of  Material  Witnesses. 

1.  Can  not  demand  certain  important  witnesses. 

E.  By  Deposition.    (See  Ninety-first  article  of  war.) 

F.  Service  of  Summons. 

1.  By  military  or  civil  person. 

2.  Service  can  not  be  hired. 

3.  Witnesses  in  foreign  territory Page  526 

G.  Discharge  of. 

1.  Only  by  notification. 
H.  Criminating  Answers. 

1.  Privilege  respecting,  is  personal. 

a.  If  witness  ignorant  of  right,  should  be  instructed. 

2.  Medical  officer  may  testify  to  facts  learned  in  regular  examination 

of  accused. 

3.  Accused.     (See  Discipline  VB  to  C.) 

1.  Fees. 

1.  Qualification  for Page  527 

2.  Claim  for  loss  of  time,  etc. 

3.  Of  experts. 

4.  When  giving  evidence  by  deposition.     (See  Ninety-first  article  of 

war.) 

5.  Rate  fixed  by  Secretary  of  War. 

6.  To  foreign  civil  witnesses. 


472  discipline;  synopsis. 

X.  WITNESSES— Continued. 
I.  Fees — Continued. 

7.  Lost  voucher,  liow  replaced. 

8.  To  policemen Page  528 

9.  To  postmaster. 
K.  Writ  op  Attachment. 

1.  When  summons  not  obeyed. 

2.  Can  not  be  issued  to  cause  witness  to  appear  before  commissioner. 

3.  Execution  of  attachment. 
L.  Exemption. 

1.  From  arrest. 
XI.  EVIDENCE. 
A.  Rules. 

1.  Same  as  in  criminal  courts  of  United  States. 

2.  Presumption  that  officer  performs  duty Page  529 

3.  Not  affected  by  rank. 

4.  Burden  of  proof. 

a.  In  desertion  case. 

5.  Privileged  communication: 

6.  Credibility. 

a.  Of  public  enemy. 

7.  Confession. 

a.  Must  be  free  and  voluntary Page  530 

b.  Can  not  be  used  until  corpus  delicti  is  proven. 

8.  Drunkenness  may  be  observed  and  testified  to. 

a.  In  connection  with  intent. 

9.  Perjury — two  witnesses  required Page  531 

a.  Testimony  as  to  credibility  of  witness  is  material. 

10.  Testimony  not  to  be  received  which  results  from  refreshing  of  mem- 

ory by  witness  who  leaves  court  room  for  that  purpose. 

11.  Prosecution  can  not  attack  character  of  accused  until  accused  intro- 

duces evidence  of  character. 
a.  Evidence  of  insanity  of  accused Page  532 

12.  In  case  of  homicide  character  of  victim  can  not  be  assailed. 

13.  Evidence  recorded  in  previous  similar  hearings  must  be  given 

de  novo;  one  hundred  and  twenty-first  article  of  war  excepted. 

14.  Evidence  by  accused. 

a.  Of  an  extenuating  nature. 

b.  Accused  takes  the  stand. 

(1)  Cross-examination  of Page  533 

15.  Weight  of  evidence  does  not  depend  on  number  of  witnesses. 

16.  Credibility  of  witnesses,  appearance,  etc. 

17.  Documentary. 

a.  Official  records. 

(1)  High  class  of  evidence  of  facts  recorded  pursuant  to  spe- 

cial object  for  which  kept. 

(2)  Under  military  control. 

(a)  In  War  Department. 
[1]  Copies  admitted. 

[a]  Orders  and  other  papers. 

[6]  Recruiting  papers Page  534 

[c]  Court-martial  records. 

[d]  Title  papers. 

[e]  Muster  rolls. 

[A]  Showing  absence   without 
leave Page  535 


1 


DISCIPLINE:   SYNOPSIS.  473 

XI.  EVIDENCE— Continued. 

A.  Rules — Continued. 

17.  Documentary — Continued. 

(a)  In  War  Department— Continued. 

[2]  Compiled  statement  not  admitted. 
(6)  Outside  of  War  Department. 

[1]  War  Department  orders. 

[2]  Morning  report  books. 

[3]  Copies  of  pay  accounts. 

[4]  Descriptive  lists. 

b.  Private  writings. 

(1)  Under  military  control. 

(a)  Proof  of  handwriting  necessary Page  536 

(2)  Not  under  military  control. 

(a)  Telegrams. 

c.  Affidavits — not  admitted. 

18.  Repeated  false  statements  evidence  of  embezzlement. 
m.  ACTION  BY  COURT. 

A    Finding. 

1.  No  evidence — finding  conforms  to  plea. 

2.  Finding  on  charge  must  be  supported  by  finding  on  specification. 

a.  One  charge,  one  specification — not  guilty  of  specification 
necessarily  acquits Page  537 

3.  Separate  finding  on  each  charge  and  specification. 

4.  Plea  is  guilty  to  specification  and  not  guilty  to  charge — finding  on 

charge  is  a  question  of  law. 

5.  Exceptions  and  substitutions  authorized. 

a.  Name,  rank,  time,  date,  etc. 

b.  Word  which  expresses  gravamen  of  offense  can  not  be 

excepted  if  finding  is  guilty. 

6.  Lesser  included  offense. 

a.  Absence  without  leave  instead  of  desertion. 

b.  *'  To  the  prejudice  "  instead  of  "unbecoming  " . .  Page  538 

c.  The  reverse  not  true. 

7.  Court  can  not  substitute  fiiiding  of  an  offense  other  than  the 

one  charged Page  539 

8.  Twenty-first  article  of  war. 

a.  It  must  be  proved  that — 

(1)  Accused  "knowingly"  assaulted  superior. 

(2)  Superior  was  "in  execution  of  office." 

(3)  Order  was  "lawful." 

(a)  Justification  for  disobedience  of  order. 

9.  Thirty-eighth  article  of  war. 

a.  Any  intoxication  is  violation  of  article Page  540 

10.  Thirty-ninth  article  of  war. 

a.  Accused  previously  "overtasked"  not  a  defense. 

11.  Sixty-first  article  of  war. 

a.  Duplicated  pay  voucher  paid Page  541 

12.  Sixty-second  article  of  war. 

a.  Specification  of  homicide  omits  ' '  with  malice  aforethought. ' ' 

b.  Defense  to  charge  of  embezzlement. 

B.  Sentence. 

1.  Evidence  of  previous  convictions. 

a.  May  be  admitted  to  determine  measure  of  punishment. 
(1)  Of  convictions  during  current  enlistment, 
(a)  That  were  approved. 


474  discipline:  synopsis. 

Xn.  ACTION  BY  COURT— Continued. 
B.  Sentence — Continued. 

1.  Evidence  of  previous  convictions — Continued. 

a.  May  be  admitted  to  determine  measure  of  punishment — Con. 

(1)  Of  convictions  during  current  enlistment — Contd. 
(6)  Over  objection  of  accused  that  he  had  not 
raised  question  of  character. 

(c)  Evidence  of,  is  original  record  or  authenti- 

cated copy Page  542 

(d)  Date  of  approval  fixes  date  of  conviction. 

b.  Should  not  be  received  after  acquittal. 

2.  In  discretionary  case  court  may  impose  any  punishment  sanc- 

tioned by  customs  of  service. 

a.  Maximum  punishment  order  is  to  determine  measure  and 

kind  of  punishment. 

b.  Convening  authority  can  not  order  court  to  adopt  particular 

form  of  sentence. 

c.  Punishment  should  be  measured  by  gravity  of  military 

offense. 

d.  Under  thirty-eighth  article  of  war Page  543 

e.  Under  fifty-eighth  article  of  war. 

3.  Adoption  of  sentence. 

a.  Each  member  proposes  a  sentence. 

b.  Each  member  votes  for  a  punishment. 

c.  Necessity  of  correct  statement  of  name. 

d.  Reprimand. 

e.  Forfeiture. 

(1)  Should  clearly  state  the  penalty  to  be  forfeiture — ^it 

can  not  be  implied Page  544 

(2)  Should  clearly  fix  exact  amount  to  be  forfeited. 

(3)  Can  not  sentence  man  to  forfeit  private  money. 

(4)  Court  can  not  impose  fine  to  reimburse  Government 

for  calling  the  accused's  witnesses. 

f.  Loss  of  rank. 

(1)  Reduction  to  the  ranks. 

(a)  Of  noncommissioned  officer  does  not  carry 
transfer Page  545 

(2)  Loss  of  files  may  be  awarded. 

(3)  Suspension  from  rank. 

(a)  Includes  suspension  from  command. 
(6)  Takes  effect  on  notice. 

(f)  May  carry  confinement  to  station  for  same 
period  of  time. 

g.  Confinement. 

(1)  Sentence  should  say  "at  such  place  as  the  reviewing 

authority  may  designate  " Page  546 

(2)  May  adjudge  confinement  extending  beyond  term  of 

service  with  or  without  dishonorable  discharge. 

(3)  May  be  given  until  a  fine  is  paid. 

(4)  Court  may  consider  period  of  time  accused  has  been 

in  confinement. 
h.  Unusual  punishments. 
L  Dismissal Page  547 


discipline:  synopsis.  475 

Xn.  ACTION  BY  COURT— Continued. 

B.  Sentence — Continued. 

4.  Improper  sentences. 

a.  To  perform  duty. 

b.  To  remain  in  service. 

c.  To  deposit  pay  with  paymaster. 

C.  Remarks  by  Court. 

D.  Animadversion  by  Court  Upon  Witness. 

E.  Recommendation  to  Clemency. 

1.  Not  part  of  record Page  548 

a.  There  may  be  more  than  one  recommendation. 

b.  Members  should  state  specific  ground  for  recommendation. 

c.  Can  not  be  withdrawn. 

F.  Explanation  of  Sentence  by  Court — Improper. 
Xin.  RECORD  OF  COURTS-MARTIAL. 

A.  Is  Full  Recital  op  Details  of  Trial Page  549 

1.  Even  irregular  proceedings. 

B.  Convening  Order. 

1.  Authority  for  each  member's  acting  as  such  should  be  cited. 

C.  Organization. 

1.  Assembly Page  550 

2.  Challenge. 

a.  Right  to,  must  be  extended  by  court Page  551 

3.  Court  and  judge  advocate  sworn. 

D.  Arraignment. 

E.  Record  of  All  Meetings Page  552 

F.  Recess. 

G.  Sets  Proceedings  Out  in  Proper  Order. 
H.  Of  Revision. 

I.  Of  Close  of  Session. 
K.  Of  Testimony. 

L.  Separate  Record  for  Each  Case Page  55S 

M.  Death  Sentence — Record  Must  State  Two-Thirds  Vote. 
N.  Separate  Record  of  Finding  on  Each  Charge  and  Specification. 
O.  Record  Need  Not  Show  Judge  Advocate   Called  Attention  of 
Accused  to  Privilege  op  Testifying  in  His  Own  Behalf. 
XIV.  REVIEWING  AUTHORITY. 

A.  Who  is? 

1.  Original  when  convening  authority Page  554 

2.  Division  commander,  after  merging  of  separate  brigade  in  division. 

3.  When  accused  leaves  jurisdiction  of  convening  authority  before 

action  on  case. 

B.  Can  Not  be  Restrained  by  Superior  Authority. 

C.  Can  Not  Delegate  Functions. 

1.  Jurisdiction  same  as  that  of  court Page  555 

D.  Can  Not  Act  on  Sentence  op  General  Prisoner  if  Offense  Com- 

mitted Before  Discharge  Was  Given. 

E.  Sentence  Inchoate  Until  Acted  on  by  Reviewing  Authority. 

1.  Can  not  correct  record. 

2.  Can  not  add  to  punishment. 

a.  By  designating  penitentiary  as  ' '  military  prison ' ' .  Page  556 

3.  Not  necessary  to  approve  finding. 

4.  Reasons  for  returning  record  to  court. 

a.  Record  materially  erroneous. 


4Y6  DISCIPLINE:   SYNOPSIS. 

XIV.  REVIEWING  AUTHORITY— Continued. 

E.  Sentence  Inchoate  Until  Acted  on,  etc. — Continued. 

4.  Reasons  for  returning  record  to  court — Continued. 

b.  Finding  "to  the  prejudice"  on  charge  of  "conduct  unbe- 

coming"   Page  557 

c.  Error  in  time  alleged. 

5.  Presumption  that  proceedings  are  regular. 

6.  Record  lost — sentence  not  effective. 

7.  Irregularities  that  are  not  fatal. 

a.  Misnaming  or   misdescription   of  rank  of  accused — when 

waived Page  558 

(1)  Name  misspelled  but  idem  sonans. 

b.  No  time  pleaded. 

c.  Use  of  old  serial  number  of  charge. 

d.  Hostility  of  judge  advocate  to  accused. 

e.  Accvised  shackled  during  trial. 

f .  Member  acted  as  interpreter. 

g.  Revealing  finding  of  sentence  to  clerk. 

.    h.  Omission  of  record  of  adjournment Page  559 

i.  Preparation  of  record  by  judge  advocate  when  reporter  was 
appointed. 

8.  Considerations  affecting  action. 

a.  When  testimony  is  conflicting. 

(1)  Court's  conclusions  have  weight. 

(2)  A  sentence  to  be  valid  must  rest  upon  an  approved 

guilty  finding. 

9.  Sentence. 

a.  Grounds  for  disapproval. 

(1)  Court  denied  request  of  accused  for  material  witness. 

(2)  Presence  on  revision  of  member  who  did  not  sit  on 

hearing Page  560 

(3)  Material  variance  in  name  between   specification 

and  sentence. 

(4)  Accuser  was  prosecuting  witness  and  interpreter  on 

trial. 

(5)  Member  present  at  finding  was  absent  during  sub- 

stantial part  of  trial. 

(6)  Member  acted  as  judge  advocate Page  561 

(7)  Court  refused  to  allow  witness  to  correct  testimony. 

(8)  Limit  of  solitary  confinement  exceeded  in  sentence. 

(9)  Sentence  of  confinement  did  not  designate  period. 

(10)  Sentence  requires  reviewing  officer  to  fix  date  of 

discharge. 

(11)  Court  excepted  material  allegation  of  false  writing 

on  charge  of  forgery Page  562 

(12)  Finding  violation  of  fortieth  article  of  war  as  lesser 

included  offense  in  forty-eighth  article  of  war. 

(13)  Under  fifty-eighth  article  of  war. 

(a)  Peace  intervenes  before  sentence. 

(6)  Punishment  less  than  required  by  local  law. 

(14)  Of  part  of  sentence  in  addition  to  dismissal  under 

thirty-eighth,  sixty-first,  and  sixty-fifth  articles  of 
war. 

(15)  Court  improperly  overrules  challenge. 


discipline:  synopsis.  477 

XIV.  REVIEWING  AUTHORITY— Continued. 

E.  SiiNTENCE  Inchoate  Until  Acted  on,  etc. — Continued. 

9.  Sentence — Continued. 

a.  Grounds  for  di8a])proval — Continued. 

(16)  Rea8ona))le  continuance  not  granted Page  563 

(17)  Designation  of  penitentiary  for  military  offense. 

b.  Effect  of  disapproval. 
'  (1)  Of  conviction. 

(a)  Has  effect  of  acquittal Page  564 

(2)  Of  accquittal. 

c.  Exceeds  legal  limit,  legal  portion  approved. 

d.  Mitigation.     (See  also  Discipline  XVFtoG.) 

(1)  Reasons  for. 

(a)  Protracted  arrest. 
(6)  Mutiny  under  provocation. 
c.  Action  changed  before  notice — not  after Page  565 

f.  Dismissal. 

(1)  Irrevocable  after  execution. 

g.  Penitentiary  sentence — designation  must  be  approved  by 

Secretary  of  War. 

(1)  Sentence  '  'in  such  place  as  the  reviewing  authority 
may  direct." 
h.  Place  of  confinement  may  be  changed, 
i.  Reprimand — ^reviewing  authority  judge  of  severity. 

k.  Loss  of  files — how  effected Page  566 

1.  Action  must  be  entered  at  end  of  record. 
m.  Authentication  must  be  personal. 
n.  Acquittal. 

(1)  Prisoner  released  before  action. 

F.  Promulgating  Order. 

1.  Should  give  date  of  action. 

2.  Notice  otherwise  than  by  publication  of  order Page  567 

3.  Should  be  sent  to  commanding  officer  if  accused  has  passed  out  of 

the  command. 

G.  Reviewing  Authority  May  Recommit  a  Prisoner  W^ho  Has  Been 

Illegally  Released. 
H.  The  President. 

1.  May  be  original  and  final  reviewing  authority. 

a.  Act  must  be  personal,  but  need  not  be  evidenced  by  sign 
manual Page  568 

2.  May  return  proceedings  to  court  for  revision. 

3.  May  remit  penitentiary  sentence  at  any  time Page  569 

4.  Words  '  'approved' '  and  '  'confirmation' '  equivalent. 

5.  Can  not  correct  sentence  or  add  to  punishment. 
I.  May  Express  Disapprobation  of  Court's  Action. 

K.  New  Trial. 

1.  Accused  applies  after  sentence  disapproved. 
XV.  REVISION  BY  JUDGE  ADVOCATE  GENERAL. 

A.  In  Sentence  of  Reimbursement — Not  Necessary  That  All  the 

Items  Should  Be  Proven Page  570 

B.  Department  Commander  May  Refuse  Request  for  a  Particular 

Officer  as  Counsel. 

C.  Presumption  Is  That  Proceedings  Are  Regular. 

1.  Facts  in  record  can  not  be  contradicted  or  proven  otherwise  than  by 
record Page  571 


478  discipline:  synopsis.  . 

XV.  REVISION  BY  JUDGE  ADVOCATE  GENERAL— Continued. 

D.  Irregularities  That  Do  Not  Invalidate  the  Proceedings. 

1.  Charges  not  referred  by  convening  authority. 

2.  Convening  order  dated  on  Sunday. 

3.  Incorrect,  but  sufficient  description  of  accused. 

4.  Failure  to  comply  with  one  hundredth  article  of  war. . .  Page  572 

E.  Fatal  Defects. 

1.  Record  must  show  affirmatively  whatever  is  made  essential  by 

statutes. 

2.  Officer  sits  as  member  after  relief. 

3.  Court  excused  judge  advocate  and  required  member  to  act  as  such. 

4.  Error   discovered   after   dissolution   of  court — procedure,   order 

declared  inoperative  and  withdrawn. 

5.  Court  declined  a  written  statement  from  accused Page  573 

6.  No  finding  on  the  charge. 

7.  Court  without  jurisdiction  to  sentence. 

8.  Convening  order  null. 

9.  Court  and  judge  advocate  not  sworn. 

10.  Record  did  not  show  right  to  challenge  extended. 

11.  Trial  for  fraudulent  enlistment — charges  failed  to  allege  receipt  of 

pay  and  allowances. 

12.  Less  than  five  proceed  with  business Page  574 

13.  Soldier  already  discharged  when  second  sentence  approved. 

F.  Grounds  for  Remission.     (See  also  Discipline  XIV E  9  d  to  e.) 

1.  Conviction  of  perjury  on  one  contradicted  witness. 

2.  Finding  of  offense  different  from  that  charged. 

3.  Accused  insane  during  trial. 

4.  Accused  had  as  an  accomplice  given  evidence  against  another  in  a 

similar  case. 

5.  Sentence  excessive  and  exceptional Page  575 

6.  Disregard  by  court  of  statement  by  accused  in  extenuation  of  plea 

of  guilty. 

7.  Accused  through  ignorance  did  not  exercise  right  of  challenge. 

8.  Court  recommends  clemency,  and  new  evidence. 

G.  Loss  of  Record. 

1.  After  confirmation  of  sentence Page  576 

H.  Illegal  Courts. 

1.  Civilian  convened  court-martial. 

2.  Unauthorized  officer  convened  court-martial. 

3.  Authorized  convening  officer,  but  court  constituted  illegally. 
I.  Legal  Sentence  Irrevocable  After  Execution. 

1.  Military  courts  not  part  of  judiciary. 

2.  Executed  legal  sentence  can  not  be  changed  or  pardoned  by  Ex- 

ecutive    Page  577 

a.  Or  by  Congress. 

3.  Mere  irregularities  do  not  alter  this  principle Page  578 

4.  Too  late  to  urge  that  sentence  was  not  supported  by  evidence,  etc. 
K.  Illegal  Sentence. 

1.  When  offense  is  not  a  military  one. 
XVI.  INFERIOR  COURTS-MARTIAL. 

A.  Regimental  Court. 

1.  Has  no  authority  to  punish  officers. 

B.  Garrison  Court. 

1.  President  of,  as  commanding  officer,  may  act  on  case. 


discipline:  synopsis.  479 

XVI.  INFERIOR  COURTS-MARTIAL— Continued. 

C.  Commanding  Officer  May  Be  Accuser. 

D.  One  Hundred  and  Third  Article  of  War Page  579 

E.  Summary  Court. 

1.  Can  not  issue  process  of  attachment. 

2.  Has  no  jurisdiction  over  capital  cases. 

3.  Summary  court  officer  certifies  witness  vouchers,  etc. 

4.  Post  commander. 

a.  Action  on  record  must  be  personal. 

b.  May  require  reconsideration  by  court. 
0.  Should  not  appoint  himself. 

5.  Summary  court  officer  the  accuser. 

6.  Commanding  officer  of  general  hospital  may  appoint. 

7.  At  brigade  posts Page  580 

8.  Report  of — deposited  where. 

a.  When  troops  are  in  camp. 

9.  Summary  court  officer    administers  oaths.     (See   Discipline  IV 

C4to5. 
F.  Department  Commander  Supervises  Proceedings. 
XVn.  PUNISHMENT. 

A.  Authorized. 

1.  By  company  commander. 

2.  By  post  commander. 

3.  By  sentence  of  general  court-martial.     (See  Articles  of  war  and 

Discipline  XII B  to  C) Page  581 

4.  Confinement. 

a.  Begins  at  date  of  order  promulgating  sentence. 

b.  Cumulative  sentence. 

c.  Time  absent  in  escape  to  be  made  good. 

d.  Prisoners '  mail  not  to  be  opened Page  582 

e.  Suspended  sentence  without  precedent. 

f.  Good-conduct  time. 

g.  In  military  prison. 

(1)  Prisoners  may  be  required  to  manufacture  articles 

for  sale. 

(2)  Prisoners  may  be  required  to  manufacture  articles 

for  issue. 

(3)  All  prisoners  may  be  required  to  work. 

(4)  Extent  of  separation  from  outside  world. 

(5)  Private  money  of  general  prisoner  not  subject  to  for- 

feiture   Page  583 

(6)  Guard's  authority  over  prisoner. 

(7)  Prisoners  required  to  manufacture  clothing. 
h.  In  penitentiary. 

(1)  United  States  must  transport  men  to  the  penitentiary, 
i.  Whole  guard  is  responsible  that  prisoners  do  not  escape. 

B.  Unauthorized  Punishment. 

1.  Summary. 

a.  Hanging  free  from  ground  or  immersion  in  water. 

b.  Striking  soldier  unnecessarily. 

c.  "Tied  and  gagged" Page  584 

d.  Abuse  of  sentinel. 

^.  Forcing  a  soldier  to  contribute  to  company  fund. 


480  DISCIPLINE  I  A  1. 

XVn.  PUNISHMENT— Continued. 

B.  Unauthorized  Punishment — Continued. 

1.  Summary — Continued. 

f.  Stopping  pay  under  fifty-fourth  article  of  war,  as  punish- 

ment. 

g.  For  offense  of  which  accused  has  been  acquitted. .  Page  585 

2.  By  sentence  of  general  court-martial. 

a.  Officer. 

(I)  Reduction  to  the  ranks. 
XVm.  BOARDS  OF  INVESTIGATION. 

A.  Can  Not  Try  or  Sentence. 

B.  Investigation  of  Case  of  a  Dismissed  Officer Page  586 

C.  Witness  Fees  Not  Allowed. 

D.  Reporter  Must  be  Authorized  by  Secretary  of  War, 

E.  As  TO  Character  of  Enlisted  Men.    (See  Discharge.) 

I  A  1.  A  party  of  soldiers  left  their  camp  at  night  in  time  of  war 
without  leave  contrary  to  positive  orders  and  proceeded  to  a  neigh- 
boring town,  where  they  created  a  disturbance.  Their  commanding 
officer  followed  them,  found  them  in  a  saloon,  and  was  about  to 
arrest  them,  when  they  broke  from  him,  and  knowing  who  he  was 
disregarded  his  order  to  halt  and  ran  away  from  him.  He  repeated 
his  order,  and  not  being  obeyed  and  having  no  other  means  of  detain- 
ing them,  fired  upon  them  while  fleeing  with  a  pistol,  and  shot  and 
kifled  one  of  them.  Held,  that  he  did  not  use  undue  force  in  endeavor- 
ing to  maintain  discipline  and  to  arrest  the  offenders  whom  he  was 
endeavoring  to  return  to  their  stations,  and  that  he  was  not  guilty  of 
an  offense  requiring  punishment,  and  that  his  conduct  under  the  cir- 
cumstances in  which  he  was  placed  was  justified,  and  that  the  cir- 
cumstances, instead  of  meriting  disgraceful  punishment,  indicate 
that  the  officer  should  be  commended  for  the  vigor  and  courage  with 
which  he  suppressed  what  approximated  to  a  mutiny.^  R.  11,  592, 
Mar.,  1865. 

I  A  2.  The  military  authorities  are  not  empowered  to  make  forcible 
entrance  into  a  private  dwelling  to  effect  an  arrest  of  a  soldier.^  G. 
395,  Oct,  1894;^  23930,  Oct.  2  and  8,  1908. 

I  A  2  a.  Held,  that  military  arrests  may  be  made  in  such  parts  of 
public  houses  as  are  devoted  to  public  purposes.     C.  395,  Oct.,  1894- 

1  B  1.  A  soldier  while  confined  in  arrest  should  not  be  fettered  or 
ironed  except  where  such  extreme  means  are  necessary  to  restrain 
him  from  violence,  or  there  is  good  reason  to  believe  that  he  will 
attempt  an  escape  and  he  can  not  otherwise  be  securely  held.  R.  30, 
483,  July,  1870;  G.  18878,  Dec.  9,  1905. 

I B  2.  The  status  of  being  in  arrest  is  inconsistent  with  duty. 
R.  2,  77,  Mar.,  1863.  Placing  an  arrested  officer  or  soldier  on  duty 
terminates  his  arrest.  R.  26,  114,  Oct.,  1867.  A  soldier  in  arrest 
in  quarters  may  be  required  to  do  cleaning  or  police  work  about  his 
quarters  which  otherwise  other  soldiers  would  have  to  do  for  him. 
P.  4^,  3^^,  Oct.,  1891.  Releasing  a  soldier  from  arrest  and  requir- 
ing him  to  perform  military  duty,  after  his  trial  and  while  he  is 

^  This  officer  was  tried  by  court-martial  and  found  guilty  of  manslaughter,  but  the 
sentence  was  disapproved  in  General  Court-Martial  Order  177,  War  Department,  1865. 

2  See  Circ.  12,  A.  G.  O.,  1894. 

^  This  opinion  concurred  in  by  the  Attorney  General.  See  his  letter  of  Oct.  12, 
1894,  marked  Office  of  the  Secretary,  War  Department,  Oct.  12,  1894. 


DISCIPLINE  I  B  3.  481 

awaiting  the  promulgation  of  his  sentence,  can  be  justified  only  by 
an  extraordinary  exigency  of  the  service.     R.  7,  234,  Feb.,  1864- 
IBS.  An  oflicer  under  arrest  is  not  disqualified  to  prefer  charges. 

11.  5,  348,  Nov.,  1863;  16,  68,  May,  1865, 

IC.  No  court-martial,  military  commander,  or  other  military 
authority  is  empowered  to  accept  bail  for  the  appearance  of  an 
arrested  party  or  to  release  a  prisoner  on  bail.  Bail  is  wholly 
unknown  to  the  military  law  ana  practice;  nor  can  a  court  of  the 
United  States  grant  bail  in  a  military  case.*  R.  9,  260,  June,  1864; 
21,258,  Mar.,  1866. 

I  D  1.  Except  in  the  class  of  cases  indicated  in  article  24,  only 
^'commanding  officers"  can  place  commissioned  officers  in  arrest. 
(See  A.  R.  930  of  1908.)  The  commanding  officer  thus  authorized 
is  the  commander  of  the  regiment,  separate  company,  detachment, 
post,  department,  etc.,  in  which  the  officer  is  serving.  R.  26,  642, 
July,  1868.  Where  a  company  is  included  in  a  post  command  the 
commander  of  the  post,  rather  than  the  company  commander,  is 
the  proper  officer  to  make  the  arrest  of  a  subaltern  of  the  company. 
R.  29,  804,  Oct.,  1869.  Otherwise,  however,  as  to  a  regimental  com- 
mander whose  regiment  forms  part  of  the  garrison  of  a  post.  G. 
26140,  June  29,  1910. 

I  D  2.  An  arrest  is  by  no  means  a  privilege  of  an  officer.  He  can 
not  under  any  circumstances  demand  it,  not  can  he  complain  if 
brought  to  trial  that  injustice  or  wrong  has  been  done  him  because 
this  mark  of  disapprobation  was  not  put  upon  him.     R.  17,  419,  Oct. 

12,  1865;  19,  419,  Feb.  15,  1866. 

I  D  3.  An  officer  may  be  put  in  arrest  by  a  verbal  or  written  order 
or  communication  from  an  authorized  superior,  advising  him  that 
he  is  placed  in  arrest  or  will  consider  himself  in  arrest,  or  in  terms 
to  that  effect;  the  reason  for  the  arrest  need  not  be  specified.  At 
the  same  time  he  is  usually  required  to  surrender  his  sword,  though 
this  formality  may  be  dispensed  with.  R.  2,  77,  Mar.  13,  1863;  19, 
419,  Feb.  15,  1866. 

I  D  4.  It  is  clearly  to  be  inferred  from  the  Army  Regulations  that 
unless  other  limits  are  specially  assigned  him  an  officer  in  arrest  must 
confine  himself  to  his  tent  or  quarters.  It  is  generally  understood, 
indeed,  that  he  can  go  to  the  mess  house  or  other  place  of  necessary 
resort.  It  is  not  unusual,  however,  for  the  commander,  in  the  order 
of  arrest,  to  state  certain  limits  within  which  the  officer  is  to  be  re- 
stricted, and,  except  in  aggravated  cases,  these  are  ordmarily  the 
limits  of  the  post  where  he  is  stationed  or  held.     R.  5,  4^4,  Dec,  1863. 

I  E  1 .  Hetd  that  it  is  proper  for  a  company  commander  to  expressly 
delegate  to  noncommissioned  officers  of  his  company  the  power  to 
place  enlisted  men  in  arrest  subject  to  the  condition  that  such  action 
will  be  reported  at  once  to  him.  This  is  with  a  view  of  providing  a 
means  of  restraint  at  the  instant  when  restraint  is  necessary.  Held 
further  that  a  similar  delegation  of  authority  to  confine  a  junior  is 
justified  by  the  custom  of  the  service  for  nearly  a  century.  C. 
18878,  Dec.  9,  1905. 

I  E  2.  Soldiers  held  in  military  arrest,  while  they  may  be  subjected 
to  such  restraint  as  may  be  necessary  to  prevent  their  escapmg  or 

^  The  act  of  July,  1864,  c.  253,  s.  7 — which  authorized  a  judge  or  commissioner  of  a 
United  States  district  court  to  admit  to  bail  a  contractor  or  inspector,  amenable  to 
trial  by  court-martial  under  the  then  existing  law,  and  arrested  with  a  view  to  trial 
thereby — is  no  longer  operative. 

31106°~12 31 


482  DISCIPLINE  I  E  3. 

committing  violence,  can  not  legally  be  subjected  to  any  summary 
punishment.!  R.  31,  597,  Aug.,  1871;  C.  18878,  Dec.  9, 1905;  26070, 
Jan.   15,  1910;  26140,  June  5,  1910. 

I  E  3.  Held  tliat  an  enlisted  man  who  has  been  tried  and  convicted 
by  the  civil  courts  and  released  on  parole  may  be  arrested  and 
brought  to  trial  by  military  authority  for  any  military  offenses 
charged  against  him.     C.  23261,.,  Jan.  6,  1912. 

II  A  1.  Military  offenses  proper  are  simply  violations  of  the  laws, 
orders,  or  rules  of  discipline  governing  the  military  state.  Such 
offenses  are  neither  '^felonies"  nor  ''misdemeanors"  in  the  legal  sense 
of  those  terms,  nor  can  an  officer  or  soldier,  convicted  of  an  offense  of 
this  class,  properly  be  subjected  to  any  of  the  consequences  attaching 
to  a  felony.     R.  53,  I4,  Sept.,  1886;  P.  27,  71 ,  Sept.,  1888. 

II  A  1  a.  Where  a  specification  alleged  that  the  accused  was 
absent  without  leave  at  various  times  between  two  dates,  20  days 
apart,  held  that  the  same  was  defective  and  subject  to  exception  as 
being  double,  each  such  absence  being  a  substantive  and  distinct 
offense.2    R.  10,  471,Oct.,  I864.. 

II  A  1  b.  Where  the  specification  to  a  charge  of  violation  of 
the  sixtieth  article  alleged  the  presentation  by  the  accused  of  a  fraudu- 
lent claim  for  rations  furnished  for  recruits,  and  also  for  lodgings  fur- 
nished for  the  same  recruits  at  the  same  time,  held  that  the  specifica- 
tion related  to  one  transaction  and  was  not  therefore  to  be  necessarily 
regarded  as  double  or  defective,  in  view  of  the  liberal  rules  of  pleading 
appUcable  to  military  charges.     R.  10,  392,  Oct.,  I864. 

II  A  1  c  (1).  A  specification  averring  a  general  incapacity  induced 
by  habitual  intoxication  does  not  set  forth  a  mihtary  offense.  The 
accused  in  such  a  case  should  be  charged  with  the  acts  of  drunkenness 
committed,  as  separate  and  distinct  instances  of  offense.^  R.  33,  4-58, 
Nov.  1872;  50,  469,  June,  1886. 

II A  1  c  (2).  A  charge  of  ' '  worthlessness, "  with  specifications  set- 
ting forth  repeated  instances  of  arrests,  confinements  in  the  guard- 
house, or  trials  and  convictions  of  the  accused  for  slight  offenses,  held 
an  insufficient  pleading;  such  instances  not  constituting  military- 
offenses,  but  merely  the  punishments  or  penal  consequences  of  such 
offenses.  R.  25,  664,  June,  1868;  28,  253,  Dec,  1868;  33,  169,  208, 
281,  285,  345  and  4I6,  July  to  Oct.,  1872. 

II  A  1  d.  Held  that  an  officer  or  enlisted  man  has  no  right  to  peti- 
tion Congress  through  any  other  than  military  channels,  and  if  he  does 
so  it  is  a  military  offense.     C.  24351,  Jan.  18, 1909. 

II  B.  Military  charges,  though  commonly  originating  with  military 
persons,  may  be  initiated  by  civilians;  indeed  it  is  but  performing  a 
public  duty  for  a  civilian,  who  becomes  cognizant  of  a  serious  offense 
committed  by  an  officer  or  soldier,  to  bring  it  to  the  attention  of  the 
proper  commander.  C.  26517,  May  12,  1910;  26591,  Apr.  15,  1910. 
So  a  charge  may  originate  with  an  enlisted  man.  But,  by  the  usage 
of  the  service,  all  military  charges  should  ha  formally  preferred  by, 

1  See  G.  O.  23,  Dept.  of  the  East,  1863;  do.  26,  Dept.  of  California,  1866;  do.  23, 
Dept.  of  the  Lakes,  1870;  do.  106,  Dept.  of  Dakota,  1871.  And  compare  remarks  of 
Justice  Story  in  Steere  v.  Field,  2  Mason,  486,  516, 

2  In  the  military,  as  in  the  civil  practice,  double  j^leading,  i.  e.,  specifications  setting 
forth  two  (or  more)  distinct  offences — especially  if  chargeable  under  different  arti- 
cles of  war — is  properly  condemned,  and  in  sundry  cases  the  conviction  and  sentence 
have  been  disapproved  on  account  of  the  duplicity  in  law  of  the  pleadings.  See  G.  C. 
M.  O.,  80,  War  Dept.,  1875;  G.  O.  3,  83,  Dept.  of  the  Missouri,  1863;  do.  49,  Dept.  of  the 
Ohio,  1864. 

»See  G.  O.  11,  War  Dept.,  1873. 


DISCIPLINE  II  C.  483 

i.  e.,  authenticated  by  the  signature  of  a  commissioned  officer. 
Charges  proceeding  from  a  person  outside  the  Army,  and  based  upon 
testimony  not  in  the  possession  or  knowledge  of  the  military  authorities, 
should  in  general  be  required  to  be  sustained  by  affidavits  or  other 
reliable  evidence,  as  a  condition  to  their  being  adopted.  R.  16,1^23,  July, 
tS65;  41,  672,Aurj.,  1879;  42,  202,  Mar.,  1879;  P.  13,  231,  Nov.,  1886, 

II  C.  Any  officer  may  prefer  charges;  an  officer  is  not  disqualified 
from  preferring  charges  by  the  fact  that  he  is  himself  undercharges  or  in 
rtrrest.  R.  1,  Jfi7 ,  Dec.  1862;  6,  3^8, Nov.,  1863;  16,  68,  May,  1865;  C. 
.12120,  Sept.  21 ,  1907.  Chargesshould  be  preferred  to  the  authority  em- 
powered to  convene  the  court  for  their  trial.     R.  42,  202,  Mar.,  1879. 

II  D  1.  In  our  practice,  unlike  that  of  the  English,  a  military 
cluxrge  properly  consists  of  two  parts — the  technical  ''charge"  and 
the  "specihcation."  The  former  designates  by  its  name,  particular 
or  general,  the  alleged  offense;  the  latter  sets  forth  the  facts  sup- 
posed to  constitute  such  offense.^    R.  7,  600,  Apr.,  I864. 

II  D  1  a.  There  may  be  one  or  more  specifications  to  a  particular 
charge.  It  is  the  office  of  the  specifications  to  specify  the  particu- 
lar acts  done  or  omitted  by  the  accused  with  time  and  place,  which 
constitute  the  offenses  charged;  each  specification  to  set  forth  but 
one  instance  of  offense.  R.  6,  613,  Jan.,  1864;  P-  ^^,  ^73,  July, 
1894;  C'  4813,  1898. 

II  D  1  b.  The  specification  should  be  appropriate  to  the  charge. 
A  charge  of  "conduct  to  the  prejudice  of  good  order  and  military 
discipline,"  with  a  specification  setting  forth  a  violation  of  a  specific 
article,  is  an  irregular  and  defective  pleading,  and  so  of  course  is  a 
charge  of  a  specific  offense  with  a  specification  describing  not  that 
but  a  different  specific  offense,  or  a  simple  disorder  or  neglect  of 
duty.     R.  24,  198,  Jan.,  1867.  ^ 

II  D  1  c.  A  specification,  in  alleging  the  violation  of  an  order 
which  has  been  given  in  writing,  or  of  any  written  obligation — as 
an  oath  of  allegiance,  parole,  etc. — should  preferably  set  forth  the 
writing  verbatim,  or  at  least  state  fully  its  substance,  and  then 
clearly  detail  the  act  or  acts  which  constituted  its  supposed  viola- 
tion.    R.  3,  649,  Sept.,  1863. 

II  D  2.  The  same  particularity  is  not  called  for  in  a  military 
charge  wliich  is  required  in  an  indictment.^  C.  144^^j  Apr.  15,  1903. 
The  essentials  of  a  military  charge  are:  1.  That  it  shall  be  laid  under 

^  An  accusation  against  an  officer  or  soldier,  not  thus  separated  in  form,  would  be 
irregular  and  exceptional  in  our  practice,  and,  till  amended,  should  not  be  accepted 
as  a  proper  basis  for  proceedings  under  the  military  code. 

^  In  regard  to  the  proper  form  for  a  military  charge,  Atty.  Gen.  Gushing  (7  Op., 
601,  603)  says:  "There  is  no  one  [form]  of  exclusive  rigor  and  necessity  in  which  to 
state  military  accusations."  He  adds  further:  "Trials  by  court-martial  are  governed 
by  the  nature  of  the  service,  which  demands  intelligible  precision  of  language,  but 
regards  the  substance  of  things  rather  than  their  forms.  *  *  *  The  most  bald 
statement  of  the  facts  alleged  as  constituting  the  offense,  provided  the  legal  offense 
itself  be  distinctively  and  accurately  described  in  such  terms  of  precisions  as  the  rules 
of  military  jurisprudence  require,  will  be  tenable  in  court-martial  proceedings,  and 
will  be  adequate  ground-work  of  conviction  and  sentence."  So  it  is  observed  by 
Atty.  Gen.  Wirt  (1  Ops.,  276,  286}  that  "all  that  is  necessary"  in  a  military  charge 
is  that  it  be  "sufficiently  clear  to  inform  the  accused  of  the  military  offense  for  which 
he  is  to  be  tried,  and  to  enable  him  to  prepare  his  defense."  And  see  Tytler,  209; 
Kennedy,  69.  It  is  ably  remarked  by  Gould  (Pleading,  p.  4)  that  "all  pleading  is 
essentially  a  logical  process;"  and  thit,  in  analyzing  a  correct  pleading,  "if  we 
take  into  view,  with  what  is  expressed,  what  is  necessarily  supposed  or  implied,  we 
shall  find  in  it  the  elements  of  a  good  syllogism."  But  it  can  hardly  be  expected 
that  military  charges  in  general  will  stand  this  test. 


484  DISCIPLINE  II  D  3. 

the  proper  article  of  war  or  other  statute.  2.  That  it  shall  set  forth 
(in  the  specification)  facts  sufficient  substantially  to  constitute  the 
particular  offense.  These  essentials  being  observed,  the  simpler, 
and  less  encumbered  with  verbiage  and  technical  terms  a  military 
charge  is,  the  better,  provided  it  be  expressed  in  clear  and  intelli- 
gible English.  However  inartificial  the  pleading  may  be,  it  will 
properly  be  held  sufficient  as  a  legal  basis  for  a  trial  and  sentence, 
provided  that  the  charge  and  specification,  taken  together,  amount 
to  a  statement  of  a  military  offense  either  under  a  specific  article  or 
under  the  general  article.  No.  62.  R.  16,  551,  Sept.,  1865;  27,  524, 
Feb.,  1869;  C.  23481,  June  25,1908. 

II  D  3.  The  accused  is  entitled  to  know  for  what  particular  act 
he  is  called  to  account.  The  charge,  therefore,  should  be  expressed 
in  terms  sufficiently  definite  to  ^ve  him  such  notice.  Thus  lield 
that  a  specification  under  the  sixty-second  article  of  war  in  the 
case  of  an  officer  which  alleged  not  a  specific  act  of  offense,  but  that 
an  habitual  course  of  conduct,  incapacitated  the  accused  for  service 
or  for  the  performance  of  his  proper  duty,  was  seriously  defective 
and  subject  to  be  stricken  out  on  motion.^    R.  50,  469,  Jan.,  1886. 

II  D  4.  Where  an  offense  is  clearly  defined  in  a  specific  article,  it 
is  irregular  and  improper  to  charge  it  under  another  specific  article. 
So,  where  the  article  in  which  the  offense  is  defined  makes  it  punish- 
able with  a  specific  punishment  to  the  exclusion  of  any  other,  it  is 
error  to  charge  it  under  an  article,'  such  as  the  sixty-second,  which 
leaves  the  punishment  to  the  discretion  of  the  court.  R.  2,  51  j 
Mar.,  1863;  11,  312,  Dec,  1864;  U,  599,  June,  1865;  20,  533,  Apr., 
1866;  28,  575,  May,  1869.  On  the  other  hand,  it  is  equally  erro- 
neous to  charge  under  a  specific  article,  making  mandatory  a  j)ar- 
ticular  punishment,  an  offense  properly  charged  only  under  article 
62.  R.  1,  463,  Dec,  1862;  27,  413,  Dec,  1868;  28,  575,  supra;  G. 
17405,  Jan.  27,  1905;  19330,  Mar.  10,  1906. 

II  t>  5.  To  charge  a  military  offense  as  a  violation  of  a  certain  article 
of  war,  naming  it  by  its  number,  is  regular  and  proper.  When  a 
statute  or  an  article  of  war  enacts  that  whosoever  shall  do  a  particular 
act  shall  receive  a  specified  punishment,  it  thereby  prohibits,  by  the 
strongest  possible  implication,  the  offense  named.  The  prohibition 
is  part  and  parcel  of  the  statute  or  article — is,  indeed,  its  essence — and 
the  act  committed  is  necessarily  in  violation  of  it,  and  is  properly 
averred  so  to  be.  Announcing  a  penalty  or  punishment  for  an  offense 
is  the  legal  language  or  mode  for  prohibiting  it,  and  this  language  is  so 
well  understood  as  to  have  led  to  great  uniformity  in  the  use  of  the 
form  in  question.     R.,  5,  77,  Oct.,  1863;  7,  457,  Mar.,  1864- 

II  D  6.  The  order  fixing  maximum  punishments  prescribes  different 
limits  of  punishments  for  wilfully  and  for  negligently  aUowing  (by  an 
enlisted  man)  a  prisoner  to  escape,  as  separate  offenses,  under  the 
sixty-second  article  of  war.  A  charge  for  suffering  an  escape  under 
this  article  should  therefore  indicate  in  the  specification  whether  the 
act  is  alleged  to  be  willful  or  negligent  only.     P.  48,  220,  July,  1891. 

II  D  7.  Properly  to  warrant  the  joining  of  several  persons  in  the 
same  charge  and  the  bringing  them  to  trial  together  thereon,  the 
offense  must  be  such  as  requires  for  its  commission  a  combination  of 

*  In  such  cases  the  officer  should  be  ordered  before  a  retiring  board  under  section 
1252  of  the  Revised  Statutes  and  not  brought  to  trial  by  court-martial. 


DISCIPLINE  11  D  8  a.  4B6 

action  and  must  have  been  committed  by  the  accused  in  concert  or  in 
pureuance  of  a  common  intent.  The  mere  fact  of  their  committing  the 
same  offense  together  and  at  the  same  time,  although  material  as 
going  to  show  concert,  does  not  necessarily  establish  it.  Thus  the  fact 
that  several  soldiers  have  absented  themselves  together  without 
leave,  will  not,  in  the  absence  of  evidence  indicating;  a  conspiracy  or 
concert  of  action,  justify  their  being  arraigned  together  on  a  common 
charge,  for  they  may  merely  have  been  availing  themselves  of  the 
same  convenient  opportunity  for  leaving  their  station.  Nor  is 
desertion,  of  which  tne  gist  is  a  certain  personal  intent,  ordinarily 
chargeable  as  a  joint  offense.^  i?.,  5,  479,  Dec,  1863;  12,  439,  June, 
1865;  24,  468,  Apr.,  1867;  32,  254,  S33,  Feb.,  1872;  33,  211,  434,  Oct., 
1872;  C.  12956,  July  11, 1902. 

II  D  8  a.  Where  a  specification  to  a  charge  preferred  by  a  superior 
against  an  inferior  officer,  instead  of  referring  to  the  former  m  the 
third  person,  alleging  that  the  accused  addressed  abusive  language  to 
"me,  and  committed  an  assault  upon  "me,"  without  naming  or  other- 
wise indicating  the  subject  of  the  abuse  or  assault,  lield  that  such  a 
form,  though  supported  by  some  of  the  English  precedents,  was  not 
sanctioned  by  our  practice,  and  that,  on  objection  being  made  to  the 
same  by  the  accused,  the  court  would  properly  either  require  that  the 
specification  be  amended,  or  that,  in  incorporating  the  charge  in  the 
record,  the  name  of  the  preferring  officer  be  added.  R.  3,  429,  Aug., 
1863. 

II  D  8  b.  It  is  not  essential  to  state  in  a  specification  \h.QJyIl  Chris- 
tian name  of  the  accused,  or  other  party  required  to  be  indicated. 
Only  such  name  or  initial  need  be  given  as  will  be  sufficient  unmis- 
takably to  identify  the  party.  R.  24,  299,  Feb.,  1867;  C.  16974, 
Oct.  5, 1904;  22215,  Nov.  4, 1907. 

II  D  9.  The  time  and  place  of  the  commission  of  the  offense  charged 
should  properly  be  averred  in  the  specification  in  order  that  it  may 
appear  that  the  offense  was  committed  within  the  period  of  limitation 
fixed  by  the  one  hundred  and  third  article,  and  to  enable  the  accused 
to  understand  what  particular  act  or  omission  he  is  called  upon  to 
defend.^    R.  1,  463,  Dec.  1862;^  5,  613,  Jan.,  I864. 

II  D  9  a.  Where  the  exact  time  or  place  of  the  commission  of  the 
offense  is  not  known,  it  is  frequently  preferable  to  allege  it  as  having 
occurred  "oti  or  about"  a  certain  date  or  time,  or  ''at  or  near"  a  certain 
locality,  rather  than  to  aver  it  as  committed  on  a  particular  day  or 
between  two  specified  days,  or  at  a  particular  place.     There  is  no 

^  See  G.  O.  78,  War  Dept.,  1872,  issued  by  the  Secretary  of  War  in  accordance  with 
opinions,  previously  given,  of  the  Judge  Aavocate  General. 

But  where  two  or  more  soldiers  have  in  fact  deserted  together  as  the  result  of  a 
concerted  plan  they  may  properly  be  jointly  or  severally  charged  with  desertion,  the 
specification  in  either  case  describing  in  proper  terms  a  "desertion  in  the  execution 
of  a  conspiracy."  See  order  prescribing  maximum  punishments,  Court-Martial 
Manual  (1908),  p.  52. 

Where  two  or  more  soldiers  have,  as  the  result  of  a  concerted  plan,  attempted  to 
desert,  they  may  properly  be  charged  jointly  or  severally  with  conspiracy  to  desert, 
as  well  as  an  attempt  to  desert,  to  the  prejudice  of  good  order  and  military  discipline. 

In  any  case  under  the  charge  of  desertion  the  fact  of  concert  may  be  put  in  evidence 
as  illustrating  the  animus  of  the  act  committed. 

^  As  to  the  latitude  allowable  in  the  allegation  of  time  in  military  pleadings,  com- 
pare 1  Op.  Atty.  Gen.,  295,  296. 

In  the  civil  practice,  "nothing  is  better  settled  than  that  proof  of  guilt  is  not  con- 
fined to  the  day  mentioned  in  tne  indictment.  It  may  extend  back  to  any  period 
previous  to  the  finding  of  the  bill  and  within  the  statutory  limit  for  prosecuting  the 
offense,"    McBryde  v.  State,  34  Ga.,  203. 


480  DISCIPLINE  II  D  9  b. 

defined  construction  to  be  placed  upon  the  words  '^on  or  about ^'  as 
used  in  the  allegation  of  time  in  a  specification.  The  phrase  can  not 
be  said  to  cover  any  precise  number  ot  days  or  latitude  in  time.  It 
is  ordinarily  used  in  military  pleading  for  the  purpose  of  indicating 
some  period,  as  nearly  as  can  be  ascertained  and  set  forth,  at  or 
during  which  the  offenses  charged  are  believed  to  have  been  com- 
mitted— in  cases  where  the  exact  day  can  not  well  be  named.  And 
the  same  is  to  be  said  as  to  the  use  of  the  words  "at  or  near"  in  con- 
nection with  the  averment  of  place.  These  terms  "on  or  about" 
and  ''at  or  near"  are,  however,  not  unfrequently  (though  unneces- 
sarily) employed  in  practice  where  the  exact  time  or  place  is  known 
and  can  readily  be  alleged.     B.  26,  437,  Feb.,  1868. 

II  D  9  b.  An  offense  of  commission  may  not  have  been  com- 
pleted on  any  particular  day.  Thus  lield  that  the  allegations  of  time 
and  place  were  sufficient  in  a  specification  in  which  it  was  set  forth 
that  the  offense  charged  (which  consisted  in  an  improper  disposition 
of  public  proj)erty)  was  committed  by  the  accused  "while  en  route 
between  Austin,  Tex.,  and  Waco,  Tex.,  between  the  5th  and  25th 
days  of  May,  1867."     R.  25,  100,  Sept.,  1867. 

II  D  10  a.  A  reasonably  exact  allegation  of  the  time  is  also  impor- 
tant in  some  cases — especially  those  of  desertion  and  absence  without 
leave — in  order  that  the  accused,  if  subsequently  brought  to  trial  for 
the  same  offense,  or,  what  is  the  same  thing  in  law,  for  an  offense 
included  in  the  original  offense,  may  be  enabled  (by  an  exhibition 
of  the  record)  properly  to  plead  a  former  acquittal  or  conviction  of 
that  offense.     R.  7,  348  and  513,  Apr.,  I864. 

II  D  10  b.  The  allegation  of  time  in  a  specification  should  be  as 
nearly  defined  as  the  facts  will  permit;  but  where  the  act  or  acts 
charged  extended  over  a  considerable  space  of  time  it  may  be  nec- 
essary to  cover  such  period  in  the  allegation.  Thus  allegations  of 
''from  March  to  September,  1887,"  and  "from  May  to  October, 
1888,"  have  been  countenanced  in  a  case  in  which  the  accused  was 
charged  with  the  neglect  of  a  duty  the  performance  of  which  was 
thus  contiimous.i     P.  31,  357,  Apr.,  1889. 

II  D  10  c.  The  same  exactness  in  the  averment  of  time  is  in  general 
scarcely  required,  where  the  offense  charged  is  one  of  omission  as 
where  it  is  one  of  the  commission  of  a  specific  act.  It  is  sulFicient  in 
the  former  case  to  allege  that  the  offense  occurred  between  certain 
named  dates  not  unreasonably  separated.     R.  30,  488,  July,  1870. 

II  D  10  d.  Where  it  was  alleged  in  a  specification  that  the  accused 
was  drunk  on  duty  at  some  time  or  times  during  a  period  of  70  days, 
held  that  the  specification  did  not  give  sufficient  notice  to  the  accused 
of  the  specific  offense  which  he  was  required  to  defend,  and  was 
therefore  uncertain  and  insufficient.^     R.  1,  463,  Bee,  1862. 

II  D  11  a.  AVhile  it  is  in  general  irregular  to  plead  matter  of 
evidence,  there  js  no  objection  to  noting  in  brief  in  the  specification 
the  immediate  result  or  effect  of  the  act  charged,  as  a  circumstance 
of  description  illustrating  the  character  and  extent  of  the  offense 
committed.  Thus  while  a  homicide,  if  amounting  to  murder,  and 
capital  under  section  5339,  R.  S.,  or  by  the  law  of  the  State,  etc., 
can  not  as  such  be  made  the  subject  of  a  military  charge  in  time  of 
peace,  yet  a  capital  homicide,  where  it  lias  been  committed  in  con- 

» See  G.  C.  M.  O.  21,  A.  G.  O.  of  1889. 

2  Compare  cases  in  G.  O.  193,  Army  of  the  Potomac,  1862;  do.  98,  Dept.  of  New 
Mexico,  1862. 


DISCIPLINE  II  D  n  1).  487 

nection  with  or  as  a  consequence  of  a  specific  military  offense  charged 
against  the  accused — as,  for  example,  "Mutiny"  or  '| Offering  vio- 
lence to  a  superior  ofiicer" — may  properly  be  stated  in  tlie  conclu- 
sion of  the  specification  as  matter  of  aggravation  and  as  indicating 
the  animus  of  the  accused  or  the  amount  of  force  employed.  R.  34, 
478,  Sept,  1873. 

II  D  1 1  b.  It  is  illogical  and  faulty  pleading  to  charge  a  secondary 
offense  in  lieu  o/the  actual  or  principal  offense,  of  which  that  charged 
was  merely  a  consequence  or  incident.     R.  27,  44^ ,  Jan.,  1869. 

II  D  1 1  c.  Undue  multiplication  of  charges  or  forms  of  charge  is  to 
be  avoided.  Thus  charges  should  not  in  general  be  added  for  minor 
offenses  which  were  simply  acts  included  in  and  going  to  make  up 
graver  offenses  duly  cliarged.     R.  15,  44^,  July,  1865. 

II  D  11  d.  A  charge  or  specification  should  not  be  expressed  in  the 
alternative — as  that  the  accused  ''did  sell  or  through  neglect  lose,"  etc. 
The  selhng,  through  neglect  losing,  and  through  neglect  spoiHng  are 
distinct  offenses  and  should  be  so  charged.  P.  28,  35,  110,  Nov., 
1888;  29,  162,  Jan.,  1889;  30,  83,  Feb.,  1889;  51,  343,  Jan.,  1892; 
58,  139,  Feb.,  1893;  62,  449,  Dec,  1893;  65,  384,  July,  1894. 

Such  a  charge  is  irregular  and  defective  and  upon  motion  may  be 
stricken  out  or  required  to  be  amended.  R.  51,  248,  Dec,  1886,  and 
297,  Jan.,  1887;  C.  10345,  July  31,  1901. 

II  D  12  a.  The  signing  of  charges,  like  orders,  with  the  name  of  an 
officer,  adding  "by  the  order  of"  his  commander,  is  unusual  and  not 
to  be  recommended.  Charges,  where  not  signed  voluntarily  by  the 
officer  by  whom  they  are  preferred,  are,  in  practice,  usually  sub- 
scribed by  the  judge  advocate  of  the  court.  R.  34,  598,  Nov.,  1873; 
47,  521,  Sept,  1884;  C  20754,  May  27,  1910. 

II  D  12  a  (1).  Charges,  though  prepared  in  the  Office  of  the  Judge 
Advocate  General,  are  not  in  practice  signed  by  him.  If  not  signed 
by  the  officer  actually  preferring  them,  they  will  properly  be  authen- 
ticated by  the  signature  of  the  acting  judge  advocate  or  the  depart- 
ment, or,  preferably,  by  the  judge  advocate  of  the  court.  R.  47,  521, 
Sept,  1884;  P.  60,  257,  June,  1893. 

II  D  13  a.  The  disrespect  indicated  in  the  twentieth  article  of  war 
may  consist  in  acts  or  words;  ^  and  the  particular  acts  or  words 
rehed  upon  as  constituting  the  offense  should  properly  be  set  forth 
in  substance  in  the  specification.^  It  must  be  shown  in  evidence 
under  the  charge  that  the  officer  offended  against  was  the  ''command- 
ing officer"  of  the  accused.^  The  commanding  officer  of  an  officer  or 
soldier,  in  the  sense  of  article  20,  is  properly  the  superior  who  is 
authorized  to  require  obedience  to  his  orders  from  such  officer  or  sol- 
dier, at  least  for  the  time  being.  Thus,  where  a  battalion  was  tem- 
porarily detached  from  a  regiment  and  placed  under  the  orders  of  the 
commander  of  a  portion  of  the  army  distinct  from  that  in  which  the 
main  part  of  the  regiment  was  included,  held,  that  it  was  the  com- 
mander of  this  portion  who  was  the  commanding  officer  of  the  de- 
tachment; and  that  the  use  by  an  officer  of  such  detachment  of  dis- 
respectful language  in  reference  to  the  regimental  commander  (who 
had  remained  with  and  in  command  of  the  main  body  of  the  regi- 

^  G.  O.  44,  Dept.  of  Dakota,  1872.  And  see  G.  C.  M.  O.  28,  War  Dept.,  1875;  G.  O. 
47,  Dept.  of  the  Platte,  1870. 

2  G.  C.  M.  O.  35,  Dept.  of  the  Missouri,  1872. 

3  G;  O.  53,  Dept.  of  Dakota,  1871. 


488  DISCIPLINE  II  D  14  a. 

ment)  was  properly  chargeable,  not  under  this  article,  but  rather 
under  the  sixty-second.     R,  18,  407,  Nov.,  1865;  C.  18764,  Oct.  2, 1906. 

II  D  14  a.  In  charging  a  striking  or  doing  of  violence  to  a  superior 
officer  under  article  21,  it  is  allowable,  in  a  case  where  the  assault 
was  fatal,  to  add  in  the  specification,  ^Hhereby  causing  his  death,"  as 
indicating  the  measure  or  violence  employed.    R.  29,  4-85,  Dec,  1869. 

II  D  15  a.  In  framing  a  charge  under  this  article,  it  will  not  in  gen- 
eral be  essential  to  allege,  in  connection  with  the  date  of  the  offense, 
or  to  show  by  evidence,  that  the  act  was  committed  at  a  time  of  war, 
etc.;  this  being  a  fact  of  which  a  court  will  ordinarily  properly  take 
judicial  notice.^  R.  17,  396,  Oct,  1865;  C.  13309,  July  25,  1903; 
13653,  Feb.  18,  1903;  13770,  Dec.  6,  1902;  15711,  Jan.  4,  1904. 

II  D  16  a.  In  framing  a  charge  under  article  60  of  knowingly  and 
wilfully  misappropriating,  etc.,  pubhc  funds,^  it  is  not  necessary  to 
allege  an  intent  to  defraud  the  United  States.  It  is  the  act  of  the 
misappropriation  described  itself  which  constitutes  the  offense,  irre- 
spective of  the  purpose  or  motive  of  such  act.  R.  5,  4^8,  Dec,  1863; 
23,  77-81,  June,  1866;  C.  23277,  Nov.  30,  1908. 

II  D  16  b.  In  charging  embezzlement  under  the  sixtieth  article  of 
war,  held  that  it  is  not  necessary  to  aver  in  terms  that  the  money  or 
property  was  ''furnished  or  intended  for  the  mihtary  service  of  the 
United  States  if  that  fact  sufficiently  appears  from  other  allegations." 
R.  47,  476,  Sept.  I884. 

II  D  17  a.  The  use  of  abusive  language  toward  a  commanding 
officer  may  constitute  an  offense  under  article  61.  But,  both  as  a 
matter  of  correct  pleading  and  because  the  twentieth  article  author- 
izes a  punishment  less  than  dismissal,  the  language  should  be  so 
particularized  as  to  show  that  it  constituted  an  offense  more  grave 
than  the  mere  disrespect  which  is  the  subject  of  the  latter  article. 
A  specification  not  thus  setting  forth  and  characterizing  the  epithets 
or  words  employed  will  be  subject  to  a  motion  to  make  definite  or 
strike  out.     R.  56,  562,  Sept.,  1888. 

II  D  18  a.  Drunkenness  not  on  duty,  or  when  off  duty,  when 
amounting  to  a  "disorder,"  should  be  charged  under  article  62, 
unless  (in  a  case  of  an  officer)  committed  under  such  circumstances 
as  to  constitute  an  offense  under  article  61.     R.  31,  52,  Nov.,  1870. 

II  D  18  b.  A  crime,  disorder,  or  neglect,  co^zable  under  article 
62,  may  be  charged  either  by  its  name  simply  as  ''larceny," 
"drunkenness,"  "neglect  of  duty,"  etc.;  or  by  its  name  with  the 
addition  of  the  words,  "to  the  prejudice  of  good  order  and  military 
discipline;"  or  simply  as  "conduct  to  the  prejudice  of  good  order 
and  mihtary  discipline;"  or  as  "violation  of  the  sixty-second  article 
of  war."  It  is  immaterial  in  which  form  the  charge  is  expressed, 
provided  the  specification  sets  forth  facts  constituting  an  act  preju- 
dicial to  good  order  and  mihtary  discipline.  R.  7,  485,  Mar.,  1864; 
9,  328,  Mar.,  1864;  i^,  ^^8,  Dec,  1864;  ^S,  486,  Apr.,  1869.  When- 
ever the  charge  and  specification  talcen  together  make  out  a  statement 
of  an  act  clearly  thus  prejudicial,  etc.,  the  pleading  will  be  regarded 
as  substantially  sufficient  under  this  general  article.  R.  16,  316,  551, 
June  and  Sept.,  1865. 

^  See  the  application  of  this  principle  to  the  fact  of  the  existence  of  the  late  Civil 
War  in  Justice  Field's  charge  to  the  grand  jury  in  United  States  t".  Greathouse,  4  Sawyer, 
457. 

2  "All  monkey  lawfully  in  the  hands  of  a  public  officer,  and  for  which  he  is  account- 
able, is  money  of  the  United  States."  United  States  v.  Watkins,  3  Cranch  C.  C,  441, 
Fed.  Cas.  16649. 


DISCIPLINE  II  D  18  e.  489 

II  D  18  c.  A  charge  of  ''conduct  to  the  prejudice/'  etc.,  with  a 
specification  setting  forth  merely  trials  and  convictions  of  the 
accused  for  previous  offenses,  is  not  a  pleading  of  an  offense  under 
article  62  or  of  any  mihtary  offense.  R.  27,  331,^  Nov.,  1868. 
So  of  a  charge  of  "habitual  drunkenness,  to  the  prejudice,"  etc., 
with  a  specification  setting  forth  instances  in  wliich  the  accused  has 
been  sentenced  for  acts  of  drunkenness.  R.  33,  175,  July,  1872. 
Such  charges,  indeed,  are  in  contravention  of  the  principle  that  a 
])arty  shall  not  be  twice  tried  for  the  same  offense.  So,  a  specifica- 
tion under  the  charge  of  "conduct  to  the  prejudice,"  etc.,  which 
sets  forth  not  a  distinct  offense,  but  simply  the  result  of  an  aggrega- 
tion of  similar  offenses,  is  insufficient  in  law.  R.  36,  432,  May,  1875. 
Where  the  specifications  to  such  a  charge,  in  a  case  of  an  officer,  set 
forth  that  the  accused  was  "frequently"  drunk,  "frequently" 
absented  liimself  without  authority  from  his  command,  etc.,  held 
that  these  specifications  were  properly  struck  out  by  the  court  on 
the  motion  of  the  accused.  In  such  a  case  the  only  correct  pleading 
is  a  general  charge  under  this  article,  with  specifications  setting 
forth — each  separately — some  particular  and  specific  instance  of 
offense.     R.  38,  211,  Aug.,  1876. 

II  D  18  d.  A  breach  of  an  Army  regulation,  imposing  a  duty  upon 
an  officer  or  soldier,  is  in  general  chargeable  as  "conduct  to  the 
prejudice  of  good  order  and  mihtary  discipline,"  and  punishable 
under  article  62.     R.  39,  283,  Nov.,  1877;  G.  19330,  Mar.  10,  1906. 

II  D  19.  In  the  case  of  an  officer  tried  by  a  court-martial  in  the 
Phihppine  Islands  and,  upon  conviction,  sentenced  to  a  term  of 
imprisonment  in  a  penitentiary,  held  that  the  cliief,  if  not  the  sole, 
purpose  in  bringing  an  officer  to  trial  under  the  sixty-first  article 
IS  to  obtain  the  judgment  of  the  court  upon  the  character  of  his 
acts  or  conduct  from  the  point  of  view  of  that  article.  If,  upon  a 
fuU  showing  of  the  facts,  his  acts  appear  to  be  unbecoming  an  officer 
and  a  gentleman,  then  the  article  requires  that  he  shall  be  separated 
from  the  service.  If  his  conduct  also  constitutes  a  crime,  then  the 
particular  criminal  offense  which  has  been  committed  should  be, 
and  habitually  is,  charged  under  the  proper  article  of  war  with  a 
view  to  the  imposition  of  such  other  or  additional  punishment  as 
may  be  warranted  by  the  nature  and  extent  of  his  offending.  C. 
17667,  Mar.  18,  1905. 

II D  20.  General  prisoners  who  have  been  dishonorably  dis- 
charged and  are  held  in  execution  of  sentences  of  imprisonment  at 
hard  labor  are  citizens  and,  as  such,  can  not  commit  acts  in  violation 
of  the  twenty-first  article  of  war.  Held  that  acts  of  disobedience 
committed  by  general  prisoner  should  be  charged  under  article  62. 
C.  16220,  Apr.  26, 1904. 

II  E.  A  list  of  the  proposed  witnesses  is  no  part  of  the  military 
charge,  though  such  a  list  may  properly  be  and  is  not  unfrequently 
appended  to  a  charge.  In  serving  upon  the  accused  a  copy  of  the 
cliarges,  it  is  not  essential,  though  the  better  practice,  to  ada  a  copy 
of  the  list  of  witnesses  where  one  is  appended  to  the  original  charges.^ 
R.  25,  350,  Feb.,  1868. 

II  F  1.  It  is  a  reprehensible  practice  to  allow  charges  to  lie  long 
dormant  before  being  preferred.  Charges  should  not  be  delayed  but 
should  be  brought  to  trial  as  soon  as  practicable  and  while  the  evi- 

*  Appending  such  a  list  does  not  preclude  the  prosecution  from  calling  witnesses  not 
named  therein. 


490  DISCIPLINE  II  F  2. 

dence  is  fresh;  a  delay  of  five  months  being  remarked  upon  as  preju- 
dicial to  the  administration  of  justice  and  unfair  to  the  accused. 
P.  24,  283,  May,  1888;  C.  21889,  Aug.  6,  1907. 

II  F  2.  It  may  sometimes  be  expedient  where  the  offenses  are 
slight  in  themselves  and  it  is  deemed  desirable  to  exhibit  a  continued 
course  of  conduct,  to  wait,  before  preferring  charges,  till  a  series  of 
similar  acts  have  been  committed,  provided  the  period  be  not  unrea- 
sonably prolonged;  but,  in  general,  charges  should  be  preferred  and 
brought  to  trial  immediately  or  presently  upon  the  commission  of  the 
offenses.  Anything  Hke  an  accumulation,  or  saving  up,  of  charges, 
through  a  hostile  animus  on  the  part  of  the  accuser,  is  discounte- 
nanced by  the  sentiment  of  the  service.^  B.  12,  348,  Feb.,  1865;  C. 
17667,  Mar.  18,  1905. 

II  G  1 .  The  statement  as  to  enhstments,  discharges,  etc.,  required  by 
the  Army  Regulations  to  be  furnished  with  the  original  charge  to  the 
convening  authority,  is  not  intended  to  be  accompanied  by  a  declara- 
tion, on  the  part  of  the  commanding  officer  of  the  accused,  as  to  his 
present  character.  The  regulation  does  not  call  for  the  officer's  opin- 
ion on  the  subject,  or  contemplate  that  the  character  of  the  accused 
will  be  taken  into  consideration  at  this  time.  P.  39,  459,  Mar.,  1890; 
43,  10,  Sept.,  1890.^ 

II  H  1.  A  material  amendment  of  a  charge  should  properly  be  made 
before  the  actual  trial.  Where  a  court-martial,  after  the  trial  was 
concluded,  directed  a  specification  to  be  amended  so  as  to  render  it 
more  definite  as  to  time  and  place,  and  then  caused  the  accused  to 
be  arraigned  and  to  plead  over  again,  nunc  pro  tunc,  held  that  its 
action  was  without  sanction  of  law  or  precedent.  B.  4S,  315,  Feh., 
1884;  C.  17547,  Feh.  I4,  1905.  _      ^ 

II  H  2.  A  middle  name  or  initial  is  no  part  of  a  person's  name  in 
law,  and,  except  where  it  is  necessary  to  identify  the  individual,  may 
be  omitted  from  the  charge  without  affecting  the  validity  of  the  find- 
ing or  execution  of  the  sentence.  P.  34,  4^0,  Aug.,  1889.  So,  a 
misnomer  in  a  charge,  consisting  of  an  erroneous  middle  name  or  ini- 
tial, may  be  dirsegarded  in  a  charge  unless  the  accused  moves  to 
strike  out  or  interposes  an  objection,  in  the  nature  of  a  plea  in  abate- 
ment, when  he  must  also  state  his  true  name.  The  charge  may  then 
be  amended  accordingly  in  court,  without  delaying  the  proceedings. 
B.  52,  675,  Oct.,  1887. 

II  I.  A  withdrawal  of  charges  constitutes  no  legal  bar  to  their  being 
subsequently  revived  and  re-preferred.  Charges,  however,  once  for- 
mally withdrawn,  will  not  in  general  properly  be  revived  except  upon 
new  material  evidence  being  obtained.  B.  11,  202,  Dec,  1864;  28, 
370,  Feh.,  1869.  Charges  once  accepted  as  a  sufficient  basis  for 
action,  by  the  commander  competent  to  convene  a  court  for  their 
trial,  can  not  properly  be  withdrawn  except  by  his  authority. ^  B.  21, 
56,  Nov.,  1865. 

1  See  G.  C.  M.  O.  71,  Hdqrs.  of  the  Army,  1879. 

2  How  far  charges  may  be  amended  by  the  judge  advocate  before  the  organization 
of  the  court  depends  mainly  upon  his  authority,  general  or  special,  to  make  amend- 
ments. After  the  arraignment,  amendments  of  form  may  always  be  made,  with  the 
assen'.  ^i  the  accused  or  by  the  direction  of  the  court;  and  so  may  slight  amendments 
of  substance  not  so  modifying  the  pleading  as  to  make  it  a  charge  of  a  new  and  distinct 
offense.  An  amendment  so  substantial  as  materially  to  modify  the  "matter"  before 
the  court  will  not  in  general  be  authorized  (see  Eighty-fourth  article),  and  any 
amendment  whatever  of  substance  should  be  allowed  by  the  court  with  caution  and 
subject  to  the   right  of   the  accused  to  apply  for  a  continuance  (see  Ninety-third 


DISCIPLINE   II   K  1.  491 

II  K  1.  The  original  charges  referred  to  a  court-martial  are  a  public 
docuiueiit.  Held  that  after  the  arraignment  and  the  cliarges  have 
been  copied  into  the  record,  the  original  charges  have  served  their 
purpose.  The  place  of  deposit  for  this  public  record  is  the  office 
of  tne  judge  advocate  of  the  convening  authority.  C.  15833,  Jan. 
28,  1904. 

III  A.  Heldf  that  regulations  wliich  relate  to  the  constitution  of 
the  court  and  not  merely  to  the  method  of  procedure  are  always 
mandatory.  C.  5325,  Nov.  15,  1898;  5484,  Dec.  9,  1898;  6121, 
Mar.  24,  1899. 

Ill  B.  The  President  is  empowered  to  convene  general  courts- 
martial,  not  merely  in  the  class  of  cases  specified  in  the  seventy- 
second  article  of  war  (viz,  where  a  military  ofiicer,  thereby  authorized 
to  convene  such  a  court,  is  the  ''accuser  or  prosecutor"  of  an  officer 
in  his  command  whom  it  is  desired  to  bring  to  trial),  but,  generally, 
and  in  any  case,  by  virtue  of  his  authority  as  Commander  in  Chief 
of  the  Army.  As  such,  he  is  authorized  to  give  orders  to  his  subordi- 
nates, and  the  convening  of  a  court-martial  is  simply  the  giving  of  an 
order  to  certain  officers  to  assemble  as  a  court  and  exercise  certain 
powers  conferred  upon  them,  when  so  assembled,  by  the  Articles  of 
War.  This  general  power  has  been  exercised  in  repeated  instances 
by  the  President  since  the  formation  of  the  Government.  Indeed, 
if  the  same  could  not  be  exercised,  it  would  be  impracticable,  in  the 
absence  of  an  assignment  of  a  general  officer  to  command  tlie  Army, 
to  administer  military  justice  in  a  considerable  class  of  cases  of  officers 
and  soldiers  not  und.er  the  command  of  any  department,  etc.,  com- 
mander, as  a  large  proportion  of  the  officers  of  the  General  Staff  for 
example.^     R.  33,  603,  Dec,  1872;  C.  1671,  Apr.  3,  1906. 

Ill  B  1 .  A  court-martial  convened  by  the  Secretary  of  War,  lield, 
legally  constituted;  such  act  of  the  Secretary  being  administrative 
and  in  law  the  act  of  the  President  whom  he  represents.     The  order 

article).  As  to  the  authority  of  the  court  or  judge  advocate  to  strike  out  or  withdraw 
a  charge  or  specification.  See  G.  O.  64,  Dept.  of  the  Cumberland,  1867;  do.  98,  id., 
1868;  do.  85,  Dept.  of  the  South,  1874;  G.  C.  M.  O.  36,  42,  Dept.  of  the  Platte,  1877; 
do.  13,  id.,  1878;  do.  48,  Mil.  Div.  of  the  Pacific  and  Dept.  of  California,  1880. 

^  The  authority  of  the  President  as  Commander  in  Chief  to  institute  general  courts- 
martial  has  been  in  fact  exercised  from  time  to  time,  from  an  early  period,  in  a  series 
of  cases,  commencing  with  those  of  Brig.  Gen.  Hull,  Maj.  Gen.  Wilkinson,  and  Maj. 
Gen.  Gaines,  tried  in  1813-1816,  and  of  Bvt.  Maj.  Gen.  Twiggs,  tried  in  1858.  For 
further  instances  of  the  exercise  of  the  President's  authority  as  Comm.ander  in  Chief 
to  convene  general  courts-martial,  see  the  following  orders:  Par.  2,  S.  O.  151,  Hdqrs. 
of  the  Army,  A.  G.  O.,  Washington,  June  30,  1884;  Par.  3,  S.  O.  282,  Hdqrs.  of  the 
Army,  A.  G.  O.,  Washington,  Dec.  2,  1898;  S.  O.  1,  W.  D.,  A.  G.  O.,  Washington, 
Jan.  18, 1899;  S.  0. 1,  W.  D.,  A.  G.  O.,  Washington,  Apr.  21,  1902;  Par.  15,  S.  0. 102, 
Hdqrs.  of  the  Army,  A.  G.  O.,  Washington,  Apr.  30,  1902;  S.  O.  2,  W.  D.,  A.  G.  O., 
Washington,  June  14,  1902;  Par.  16,  S.  O.  302,  Hdqrs.  of  the  Army,  A.  G.  O.,  Wash- 
ington, Dec.  26,  1902;  Par.  5,  S.  O.  37,  W.  D.,  A.  G.  O.,  Washington,  Feb.  14,  1905; 
Par.  1,  S.  0. 169,  W.  D.,  Washington,  July  19,  1906;  Par.  5,  S.  O.  30,  W.  D.,A.  G.  O., 
Washington,  Feb.  5, 1908;  Par.  9,  S.  O.  55,  W.  D.,  A.  G.  O.,  Washington, Mar. 6, 1908; 
Par.  6,  S.  O.  90,  W.  D.,  A.  G.  O.,  Washington,  Apr.  16,  1908;  Par.  9,  S.  0. 199,  W.  D., 
A.  G.  0.,  Washington,  Aug.  26,  1908;  Par.  18,  S.  O.  204,  W.  D.,  A.  G.  O.,  Washing- 
ton, Sept.  1,  1908;  Par.  38,  S.  O.  141,  W.  D.,  A.  G.  O.,  Washington,  June  19,  1909; 
Par.  5,  S.  0. 107,  W.  D.,  A.  G.  O.,  Washington,  May  8, 1911 ;  Par.  ]1 ,  S.  O.  236,  W.  D., 
A.  G.  O.,  Washington,  Oct.  9,  1911.  His  authority  in  this  particular  has  been  in 
substance  affirmed  by  the  Judiciary  Committee  of  the  Senate,  in  Report  No.  868, 
dated  Mar.  3,  1879,  45th  Cong.,  3d  sess.  See  Swain  v.  U.  S.,  28  Ct.  Cls.,  173,  and  165 
U.  S.,  559.  .  '  ' 


492  DISCIPLINE  III  B  2  a. 

here  is  not  a  judicial  but  an  Executive  act,  and,  like  any  other  Execu- 
tive order,  is  legal  if  made  through  the  head  of  the  executive  depart- 
ment to  the  province  of  which  it  pertains.  R.  9,  44,  May,  1864; 
56,  465,  Aug.,  1888;  P.  45,  119,  Jan.  17,  1891;  64,  169,  Mar.,  1894. 

Ill  B  2  a.  Section  1230  R.  S.,  which  provides  for  the  trial  by 
court-martial,  upon  application,  of  officers  who  have  been  dismissed 
by  order  of  the  President,  does  not  indicate  within  what  period  after 
dismissal  the  apphcation  for  trial  shall  be  made.  Held,  that  only 
those  apphcations  will  be  considered  which  are  made  within  a  rea- 
sonable time.i  R.  16,  170,  May,  1865;  42,  446,  Bee,  1879;  0.  4954, 
Jan.  20  and  Feh.  4,  1899. 

Ill  B  2  b.  Held,  that  a  request  for  trial  by  court-martial  under 
section  1230  R.  S.  by  a  volunteer  officer  who  had  been  dismissed  by 
order  can  not  be  entertained  after  the  Volunteer  Army  has  been  mus- 
tered out,  as  with  the  muster  out  of  the  Volunteer  Army  every  officer 
and  soldier  of  the  same  becomes  a  civilian,  and  laws  which  relate 
alone  to  people  in  the  Army  are  no  longer  applicable  to  such  officers 
and  enlisted  men,  as  they  have  become  civihans.  C.  4^54,  Jdn.  20 
and  Feb.  4,  1899. 

Ill  C  1  a.  The  officers  of  the  branches  of  the  service  (specified  in 
par.  189,  A.  R.  1910)  are  subject  to  be  detailed  upon  court-martial 
duty  only  by  orders  emanating  from  the  War  Department.  An 
officer  of  the  Subsistence  Department,  assigned  to  duty  at  a  general 
''depot  of  supply,"  was  ordered  to  ''report,  on  his  arrival,  by  letter 
to  the  department  commander. ''  Held,  that  this  was  not  an  order  to 
report  for  duty  and  did  not  except  him  from  the  application  of  the 
regulation  or  place  him,  for  court-martial  service  or  otherwise,  under 
the  command  of  such  commander,  but  enjoined  merely  a  formal 
announcement  of  his  arrival  and  entering  upon  his  duties  properly 
called  for  by  considerations  of  courtesy  and  deference  toward  his 
military  superior.     P.  48,  255,  July,  1891. 

Ill  C  1  b.  To  detail  as  a  court-martial  the  same  officers  as  those 
already  constituting  a  court-martial,  without  dissolving  the  court 
first  convened,  though  a  proceeding  for  which  there  are  precedents, 
is  one  which  should  not  be  resorted  to  where,  without  material  em- 
barrassment to  the  service,  it  can  be  avoided.  And  this  view  is 
applicable,  though  with  less  force,  to  the  case  of  a  single  officer  pro- 
posed to  be  detailed  upon  two  distinct  military  courts  at  the  same 
time;  such  a  detail  should  not  be  made  unless,  on  account  of  the 
scarcity  of  officers  available  for  such  duty,  it  can  not  well  be  avoided. 
R.  7,  134,  Feb.,  1864;  19,  495,  Mar.,  1866. 

Ill  C  1  c.  Held  that  Regulars  may  be  tried  by  a  court-martial  upon 
which  Volunteer  officers  sit  as  members.  C.  13649,  Nov.  11,  1902; 
11050,  Dec.  8,  1902;  15161,  Aug.  27,  1903;  15235,  Sept.  11,  1903. 

Ill  C  1  d.  Only  officers  can  be  detailed  as  members  of  courts- 
martial.  R.  42,  311,  May  29,  1879.  Although  officers  on  the  active 
list  are  eligible  for  such  duty,  chaplains  are  not  usually  detailed. 
R.  36,  451,  May  8,  1875;  41,  306,  July '6,  1878.  Civihans  such  as 
"Acting  assistant  surgeons"  are  not  eligible.  R.  22,  542,  Dec,  1866. 
Officers  who  are  biased  or  interested  in  the  case  should  not  be  detailed. 
R.  39,  240,  Oct.  22,  1877. 

^  See  Newton  v.  United  States,  18  Ct.  Cls.,  435,  and  Armstrong  v.  United  States, 
26  id..  387. 


DISCIPLINE  III  c  1  e.  493 

III  C  1  e.  Held  that  the  convening  authority  is  the  sole  judge  of 
whether  or  not  it  is  possible  to  constitute  a  court  of  members  all 
superior  in  rank  to  the  accused,  and  that  his  decision  as  indicated  by 
the  convening  order  is  conclusive  upon  the  court  as  to  that  matter. 
R.  3,  82,  June,  1863;  66,  604,  Sept.,  1888;  C.  10910,  Aug.  17.  1901; 
2Jfi79,  Oct.  12,  1908. 

Ill  C  1  f .  Held  that  either  a  Medical  Reserve  Corps  officer,  when 
lawfully  on  active  duty  in  the  service  of  the  United  States,  or  a 
dental  siirgeon  commissioned  as  such,  is  legally  eligible  for  detail  as  a 
member  of  a  general  court-martial  or  as  a  trial  officer  of  a  summary 
court.  C.  23135,  Nov.  27,  1911.  Held,  however,  that  in  view  of 
the  fact  that  the  sick  may  at  any  time  require  the  attention  of  a 
doctor,  that  a  medical  officer  should  not  be  detailed  to  court-martial 
duty  when  it  can  be  avoided.  R.  22,  536,  Bee,  1866;  23,  522, 
June,  1867;  C.  13150,  Aug.  19,  1902;  14583,  June  28,  1903;  16920, 
Sept.  22,  1904. 

Ill  C  2  a.  Any  commissioned  officer  may  legally  be  appointed  judge 
advocate  of  a  court-martial.  Thus  a  surgeon,  assistant  surgeon,  or 
a  chaplain  is  legally  eligible  to  be  so  detailed.  R.  9,  377,  July,  1864; 
C.  19070,  Jan.  18,  1906. 

Ill  C  2  b.  While  a  civilian  may  legally  be  appointed,  or  rather 
employed,  as  judge  advocate  of  a  court  martial,  such  an  employment 
has,  for  the  past  50  years,  been  of  the  rarest  occurrence  in  the  military 
service.^  Civihan  judge  advocates  have  been  much  more  frequently 
employed  for  naval  than  for  military  courts-martial.^  R.  20,  507, 
Mar.,  1866. 

Ill  C  2  0  (1).  An  officer  can  not  in  general  fitly  or  becomingly  act 
as  judge  advocate  in  a  case  in  which  he  is  personally  interested  as 
accuser  or  prosecutor.  P.  39,  35,  Feb.,  1890.  Where  ^  the  judge 
advocate  had  prepared  the  charges  and  was  the  accuser  in  the  case, 
and  moreover  entertained  a  strong  personal  prejudice  or  hostility 
against  the  accused,  held  that  he  was  ill-chosen  to  act  as  judge 
advocate,  especially  in  the  capacities  of  prosecuting  official  and 
adviser  to  the  court.  R.  49,  613,  Bee,  1885.  One  who,  without 
personal  prejudice  against  the  accused  or  interest  in  his  conviction, 
has  signed  the  charges,  may,  not  improperly,  act  as  judge  advocate  in 
the  case.     P.  63,  240,  Jan.,  1894. 

Ill  C  2  0  (2).  It  is  desirable  to  detail  as  judge  advocate,  if  prac- 
ticable, an  officer  who  has  no  considerable  prejudice  against  the  party 
to  be  tried,  or  any  decided  personal  interest  in  his  case.  Thus  the 
selection  as  judge  advocate  of  an  officer  who  was  not  only  a  material 
witness  for  the  prosecution  but  would  be  promoted  m  case  the 
accused,  an  officer  of  his  regiment  of  a  higher  grade,  were  dismissed 
by  the  court,  remarked  upon  as  an  unfortunate  one.^  R.  21,  177 j 
Jan.,  1866;  31,  361,  May,  1871. 

*  The  last  occasions  of  such  emplojrment  are  believed  to  have  been  those  of  the  trial 
of  the  persons  charged  with  complicity  in  the  assassination  of  President  Lincoln  and 
the  trial  of  Maj.  Haddock,  Prov.  Mar.  Dept.  (see  G.  C.  M.  O.  356  and  565,  War  Dept., 
1865),  upon  which  Hon.  J.  A.  Bingham  and  Hon.  Roscoe  Conkling  were  respectively 
employed  as  judge  advocates. 

2  In  view  of  the  provisions  of  sec.  17  of  the  act  of  June  22,  1870  (Sec.  189,*  R. 
S.,  transferring  to  the  Department  of  Justice  the  authority  to  employ  counsel  for 
the  executive  departments,  neither  the  Secretary  of  War  nor  the  Secretary  of  the 
Navy  is  now  authorized  to  retain  a  civilian  lawyer  to  act  as  judge  advocate  of  a  court- 
martial.    13  Op.  Atty.  Gen.  514;  14  id.  13.    (See  Discipline  IV  L  1.) 

*  See  G.  C.  M.  0.  5,  War  Dept.,  1871;  do.  41,  id.,  1875. 


494  DISCIPLINE  III  c  2  c  (3). 

Ill  C  2  c  (3).  Wliile  a  judge  advocate  may  be  relieved  pending  a 
trial  and  a  new  one  appointed,  it  would  not  be  proper  to  make  such 
a  change  after  the  conclusion  of  a  trial,  simply  for  the  purpose  of 
having  the  record  authenticated.^  C.  5230,  Oct.,  1898;  17038,  Oct  18, 
1904. 

Ill  C  3.  Held,  that  the  appointment  of  a  court-martialcan  not  be 
legally  delegated  to  a  staff  officer  as  a  routine  duty.  C.  1499,  July 
17,  1895. 

Ill  D.  It  may  be  said  to  be  a  principle  of  military  law  that  a  court- 
martial  is  to  be  left  independent  as  to  matters  legally  or  properly 
within  its  own  discretion.  Such  a  court,  however,  may  not  assume 
authority  over  a  subject  belonging  to  the  province  of  the  officer  by 
whom  it  has  been  convened.  Thus,  while  it  may  decline  to  proceed 
with  the  trial  of  a  case  manifestly  not  within  its  jurisdiction,  it  can 
not  properly  refuse  so  to  proceed  on  the  ground  that  it  is  not  empow- 
ered adequately  to  punish  the  offender  upon  conviction;  or  that  offi- 
cers junior  to  tne  accused  have  been  placed  upon  the  detail;  or  that — 
the  detail  being  less  than  13 — a  greater  number  might  have  been 
put  upon  the  court  without  injury  to  the  service;  or  that  the  accused 
has  not  been  placed  in  arrest.  A  court  declining  to  go  on  with  a  trial 
upon  any  such  ground  may  be  peremptorily  ordered  by  the  con- 
vening authority  to  proceed:  if  it  still  refuses,  the  preferable  course 
will  ordinarily  be  to  dissolve  it  in  general  orders  (adding,  if  deemed 
desirable,  an  expression  of  censure  on  account  of  its  contumacy), 
and  to  convene,  for  the  trial,  a  court  composed  entirely  of  new  mem- 
bers.    R.  21, 177,  Jan.,  1866;  25,  578,  May,  1868;  28,  57,  Aug.,  1868. 

Ill  El.  It  is  the  established  practice  before  courts-martial  and 
military  commissions  to  examine  into  as  many  accusations  against 
the  individual  on  trial,  without  regard  to  their  connection  with  each 
other  or  their  identity  in  respect  to  date  or  place,  as  it  may  be  deemed 
proper  and  advisable  by  the  prosecuting^  authority  to  adduce.  The 
charges  against  such  a  prisoner  may  be  in  number  unlimited  and  as 
various  in  character  as  the  jurisdiction  of  the  tribunal  will  permit. 
R.  IJf,  JjO,  Jan.,  1865.  They  should,  if  practicable,  be  consolidated  and 
one  trial  had  upon  the  whole.     R.  30,265,  Apr.,  1870. 

Ill  E  2  a.  A  commander,  in  restoring  a  deserter  to  duty  without 
trial  according  to  the  Army  Regulations,  is  not  authorized  to  require 
him  to  submit  to  a  punishment,  as  a  condition  to  his  being  so  restored, 
or  otherwise.     R.  16,  83,  May,  1865. 

Ill  E  2  b.  In  a  case  where,  because  of  previous  convictions,  the 
punishment  may  be  dishonorable  discharge,^  the  department  com- 
mander may  properly  require  the  charges  to  be  brought  to  trial  before 
a  general   court-martial,   notwithstanding   that,   if   the   alternative 


1  Army  Regulations  provide  that  "Whenever,  by  reason  of  the  death  or  disability 
of  the  judge  advocate  occurring  after  the  court  has  decided  on  the  sentence,  the  record 
can  not  be  authenticated  by  his  signature,  it  must  show  that  it  has  been  formally 
approved  by  the  court  and  must  be  authenticated  by  the  signature  of  the  president." 

^"Whenever  by  any  of  the  Articles  of  War,  *  *  *  the  punishment  on  convic- 
tion of  any  military  offense  is  left  to  the  discretion  of  the  court-martial,  the  punish- 
ment therefor  shall  not  in  time  of  peace  be  in  excess  of  a  limit  which  the  President 
may  prescribe."    Act  of  Sept.  27,  1890. 

Under  this  Executive  orders  prescribing  maximum  punishments  have  been  issued. 
See  General  Orders  21  A.  G.  O.,  1891;  do.  IG  of  1895;  do.  16  of  1898;  do.  88  of  1900; 
do.  42  of  1901. 


DISCIPLINE   III   E   3. 


495 


punishment  of  dishonorable  discharge  be  not  resorted  to,  the  punish- 
ment wouki  be  within  the  power  of  an  inferior  court.  P.  60,  378, 
July,  1893. 

in  E  3.  The  convening  authority  should  consider  each  case  care- 
fully and  be  satisfied  that  its  prosecution  is  for  the  best  interests  of 
the  Government  before  he  refera  the  charges  to  a  court.  Held  that 
no  form  is  laid  down  for  such  consideration,  and  he  may  refer  the 
charges  to  liis  inspector  general  or  to  any  other  officer,  but  he  is  not 
required  to  do  so.     C.  19854,  June  29,  1906. 

Ill  E  3  a.  Held  that  a  soldier  may  legally  be  tried  at  the  same  time 
for  fraudulent  enhstment  and  for  desertion  therefrom.  C.  11196, 
Sept.  13,  1901. 

Ill  E  3  b.  As  desertion  and  joining  the  enemy  and  taking  service 
with  liim  are  two  distinct  offenses,  held,  that  desertion  would  ordi- 
narily be  tried  by  a  general  court-martial  as  a  violation  of  the  Articles 
of  War,  while  joining  the  enemy  would  be  tried  by  a  military  com- 
mission as  a  violation  of  the  laws  of  war.     C.  11811,  Dec.  26,  1901. 

Ill  E  4.  Held  that  in  accordance  with  a  principle  of  comity  as 
between  the  civil  and  military  tribunals  the  jurisdiction  which  first 
attaches  in  a  particular  case  should  be  carried  to  its  termination,  and 
that  the  request  of  the  civil  authorities  for  the  surrender  of  the 
prisoner  may  be  denied  if  military  jurisdiction  has  already  attached. 
C.  11589,  Nov.  13, 1901;  17667,  Mar.  18,  1905;  19466,  Mar.  31, 1906. 

Ill  E  5  a.  Held  that  an  officer  could  not,  by  consenting  to  being 
placed  under  a  ''conservator"  as  a  habitual  drunkard,  in  the  form 
prescribed  by  the  local  law,  withdraw  liimseK  from  the  military  juris- 
diction; but  that  he  remained  amenable  to  trial  and  punishment 
for  offenses  committed  prior  to  such  proceeding  and  within  the  period 
of  limitation.  So  recommended  in  the  particular  case  that  the  officer 
be  brought  to  trial  for  certain  offenses  (dupHcation  of  pay  accounts) 
committed  prior  to  such  proceeding.     P.  63, 358,  Feb.,  1894- 

III  E  5  b.  An  officer  was  examined  to  determine  his  fitness  for 
promotion.  A  question  arose,  administratively,  as  to  his  moral 
qualifications.  Held,  that  as  the  instrumentafity  of  the  general  court- 
martial  is  placed  at  the  disposal  of  the  proper  convening  authority 
for  the  purpose  of  dealing  with  all  cases  of  moral  obliquity,  such  cases 
should  be  tried  by  court-martial,  the  agency  provided  by  law  for  the 
investigation  and  punishment  of  offenses  in  violation  of  the  Articles 
of  War.     C.  24036,  Nov.  2,  1908. 

Ill  E  6.  A  prosecution  before  a  court-martial  proceeds  in  the  name 
and  by  the  authority  of  the  Government.  The  United  States,  there- 
fore, through  the  Secretary  of  War,  or  the  military  commander  who 
has  convened  the  court,  may  require  or  authorize  the  judge  advocate 
to  enter  a  nolle  prosequi  in  a  case  on  trial  (or,  less  technicaUy,  withdraw 
or  discontinue  the  prosecution) ,  either  as  to  all  the  charges  where  there 
are  several,  or  as  to  any  particular  charge  or  specification.  But  the 
judge  advocate  can  not  exercise  this  authority  at  liis  own  discretion, 
nor  can  the  court  direct  it  to  be  exercised.  R.  9,  488  and  533,  Aug., 
1864;  54,  458,  Nov.,  1887. 

Ill  E  7.  In  cases  where  charges  preferred  against  an  officer  are 
apparently  susceptible  of  a  reasonable  explanation,  it  is  not  unusual, 
especiaUy  where  the  charges  are  preferred  by  an  inferior  against  a 
superior  to  afford  the  officer  charged  an  opportunity  to  make  explana- 


496  DISCIPLINE  III  F. 

tion  before  it  be  determined  whether  to  bring  him  to  trial.     R.  20, 
12,  Oct,  1865;  G.  22120,  Sept.  21,  1907. 

Ill  F.  Strictly,  communications  from  the  convening  authority  to 
the  court  as  such  (and  vice  versa)  should  be  made  to  (and  by)  the 
president  as  its  organ,  unless  in  the  latter  case  the  court  directs  the 
judge  advocate  to  represent  it;  communications,  however,  relating  to 
the  conduct  of  the  prosecution  should  be  made  to  (and  by)  the  judge 
advocate.     R.  29,  336,  Oct,  1869;  0.  17038,  Oct  18,  190^. 

III  G 1 .  An  order  convening  a  general  court  martial  should 
properly  be  so  headed  and  authenticated,  or  so  authenticated,  as  to 
show  that  it  was  issued  by  an  officer  authorized  by  the  statute  law — 
the  seventy-second  or  seventy-third  article  of  war — to  create  such  a 
tribunal.  Thus  Tield  that  such  an  order  (issued  in  time  of  war) 
signed  by  an  officer  describing  himself  as  commanding  a  ''post"  or 
"district"  was  frima  facie  invalid  and  inoperative,  though  capable 
of  being  shown  to  be  valid  by  proof  that  the  command  was  of  such 
dimensions  and  so  situated  as  practically  to  constitute  a  separate 
army  division,  or  separate  brigade.^  R.  11,  162,  170,  176,  214,  Nov. 
and  Bee,  1864;  26,  510,  Apr.,  1868. 

IV  A.  A  separate  judge-advocate  should  be  appointed  for  each 
general  court  martial  convened  by  a  department,  or  other  competent 
commander.  The  same  officer  may  indeed  be  selected  to  perform  the 
duties  of  judge  advocate  as  often  as  may  be  deemed  desirable  by  the 
commander,  but  he  should  be  detailed  anew  for  every  court-martial 
on  which  he  acts.  To  appoint  in  a  general  order  a  particular  officer 
to  act  as  judge  advocate  for  all  the  courts  to  be  held  m  the  same  com- 
mand would  be  quite  irregular  and  without  the  sanction  of  precedent. 
R.  2,  54,  Mar.,  1863;  16,  429,  Aug.,  1865.  ^ 

IV  B.  A  judge  advocate  is  not  authorized  to  entertain  charges 
in  the  first  instance;  he  can  properly  act  upon  charges,  i.  e.,  make 
service  of  the  same,  prepare  the  case  for  trial,  etc.,  only  when  the 
charges  are  transmitted  to  him  for  the  purpose  by  the  officer  who  has 
convened  the  court  or  detailed  him  as  judge  advocate.  R.  4^,  ^02, 
Mar.,  1879. 

IV  B  1.  The  judge  advocate  is  not  unfrequently  directed  to  pre- 
pare or  reframe  charges;  but  where  charges,  already  formally  pre- 
ferred, are  transmitted  to  him  for  prosecution,  he  should  not  assume 
to  modify  them  in  material  particulars  in  the  absence  of  authority  from 
the  convening  officer.  While  he  may  ordinarily  correct  obvious  mis- 
takes of  form  or  slight  errors  in  names,  dates,  amounts,  etc.,  he 
can  not  without  such  authority  make  substantial  amendments  in 
the  allegations,  or — ^least  of  all — ^reject  or  withdraw  a  charge  or 
specification,  or  enter  a  nolle  prosequi  as  to  the  same,  or  substitute 
a  new  and  distinct  charge  for  one  transmitted  to  him  for  trial  by  the 

^  The  order  should  properly  indicate  for  what  trial  or  class  of  trials  the  court  is 
convened,  or  its  terms  should  be  so  general  in  this  particular  as  to  authorize  the  court 
to  entertain  any  case  that  may  be  referred  to  it  for  trial.  A  court,  restricted  by  the 
order  convening  it  to  the  trial  of  a  special  case  or  class  of  cases,  would  not  be  empow- 
ered (in  the  absence  of  further  orders)  to  take  cognizance  of  a  case  not  within  such 
designation.  See  G.  O.  106,  Army  of  the  Potomac,  1862,  where  the  proceedings  of  a 
court  martial  in  a  case  of  a  private  soldier  were  disapproved  as  without  jurisdiction, 
because  the  convening  order  had  authorized  the  court  to  try  the  cases  only  of  euch 
officers  as  might  be  brought  before  it. 


f: 


DISCIPLINE   IV  B   2.  497 

proper  superior.^  R.  2,  60,  Mar.,  1863;  21,  56,  Nov.,  1865;  P.  20, 
378,  Nov.,  1887. 

IV  B  2.  The  power  to  appoint  the  reporter,  under  section  1203, 
R.  S.,2  is  vested  exclusively  in  the  trial  judge  advocate  and  can  not 
be  exercised  by  the  court.     The  employment,  however,  of  a  steno- 

aphic  reporter  should  be  resorted  to  only  in  an  important  case. 

.2, 515,  June,  1863;  11, 361,  Jan.,  1865;  34,232,  Apr.,  1873;  C.  154^4, 
Oct.  24,  1903. 

IV  B  2  a.  By  circular  22,  Adjutant  General's  Office  of  1898,  the  em- 
ployment of  enlisted  men  as  reporters  for  courts-martial  was  author- 
ized ''without  extra  expense  to  the  United  States."  Under  Army- 
Regulations  960  (1064  of  1901)  "no  person  in  the  military  or  civil 
service  can  lawfully  receive  extra  compensation  for  clerical  duties 
performed  for  a  military  court,"  and  section  6  of  the  act  of  April 
26,  1898  (30  Stat.  365),  provides  ''that  in  war  time  no  additional 
increased  compensation  [i.  e.,  additional  to  the  20  per  cent  increase] 
shall  be  allowed  to  soldiers  performing  what  is  known  as  extra  or 
special  duty."  •  Held  that  under  the  regulation  and  statute  referred 
to  no  extra  pay  can  be  allowed  an  enlisted  man  for  services  as  reporter. 
C.  5434,  Bee,  1898;  7334,  Nov.,  1899. 

IV  B  3  a.  A  judge  advocate  is  authorized  to  subpoena  witnesses 
only  for  testifying  in  court;  he  can  not  summon  a  witness  to  appear 
before  himself  for  preliminary  examination.  For  this  purpose  he 
must  procure  an  order  to  be  issued  by  the  proper  commander.  R.  52, 
508,  Sept.,  1887. 

IV  B  3  a  (1).  The  judge  advocate,  in  forwarding  the  interrogatories 
for  a  deposition,  should  transmit  with  them  a  subpoena  (in  duplicate) 
requiring  the  witness  to  appear  at  a  stated  place  and  date  before  a 
certain  person  who  is  to  take  the  deposition.  Particulars  not  ascer- 
tained may  be  left  blank  to  be  supplied  by  the  officer  or  person  by 
whom  the  subpoena  is  served.  When  the  deposition  has  been  duly 
taken  and  returned,  the  judge  advocate  should  transmit  to  the 
witness  (or  to  some  officer,  etc.,  for  him)  the  usual  certificate  of 
attendance  (accompanied  by  a  copy  of  the  convening  order),  the 
duration  of  the  attendance  to  be  ascertained  from  the  deposition. 
R.  55,  384,  Mar.,  1888. 

IV  B  3  b.  A  judge  advocate  has  no  authority  to  employ  a  civil 
official  or  private  civilian  to  serve  subpoenas,  if  by  so  doing  the 
United  States  will  be  subjected  to  a  claim  for  compensation.  P. 
32,  365,  May,  1889;  51,  407,  Jan.,  1892. 

»  See  G.  O.  64,  Dept.  of  the  Cumberland,  1867;  do.  98,  id.,  1868;  do.  85,  Dept.  of 
the  South,  1874;  G.  C.  M.  O.  36,  42,  Dept.  of  the  Platte,  1877;  do.  13,  id.,  1878;  do. 
48,  Mil.  Div.  of  Pacific  &  Dept.  of  Cal.,  1880. 

This  paragraph  sets  forth  the  established  practice. 

A  competent  judge  advocate  will  properly  be  left  by  the  court  to  introduce  the 
testimony  in  the  form  and  order  deemed  by  him  to  be  the  most  advantageous,  and 
generally  to  bring  on  cases  for  trial  and  conduct  their  prosecution  according  to  his 
own  judgment.  Compare  G.  C.  M.  O.  97,  Dept.  of  Dakota,  1878;  do.  38,  Dept.  of 
Texas,  1878;  and— as  to  the  civil  practice— United  States  v.  Burr,  1  Burr's  Trial,  85, 
469;  Lynch  v.  Benton,  3  Rob.,  105;  Davany  v.  Koon,  45  Miss.,  71. 

2  This  section  provides:  "The  judge  advocate  of  a  military  court  shall  have  power 
to  appoint  a  reporter,  who  shall  record  the  proceedings  of,  and  testimony  taken  before, 
such  court,  and  may  set  down  the  same,  in  the  first  instance,  in  short  hand.  The 
reporter  shall,  before  entering  upon  his  duty,  be  sworn,  or  afl&rmed,  faithfully  to  per- 
form the  same." 

31106—12 32 


498  DISCIPLINE  IV  B  3  C. 

IV  B  3  c.  Held,  that  a  judge  advocate  may  certify  as  necessary  for 
'' Expenses  of  courts-martial"  the  necessary  expense  incident  to 
locating  a  material  witness,  who  had  been  duly  summoned  before 
the  court  and  who  had  disobeyed  the  summons  and  left  his  former 
place  of  abode.     C.  1^704,  May  23,  1903. 

IV  B  3  d  (1).  Held  J  that  if  in  the  trial  of  an  officer  the  accused  raises 
the  question  of  insanity  as  a  defense,  the  judge  advocate  may,  with 
the  approval  of  superior  authority,  employ  on  behalf  of  the  Govern- 
ment an  expert  in  mental  diseases  with  a  view  to  placing  him  on  the 
stand  as  a  witness.  Held,  further,  that  the  necessary  expense  is  a 
proper  charge  against  the  appropriation  for  expenses  of  courts- 
martial.     G.  14750,  June  4, 1903. 

IV  B  4.  Section  1202,  R.  S.,  authorizes  only  judge  advocates  of 
courts-martial  to  issue  process  to  compel  the  attendance  of  witnesses. 
The  court  itself — ^general  or  inferior — ^nas  no  such  power.  R.  SO,  632, 
Aug.,  1886;  P.  51,  468,  Jan.,  1892.  But  the  judge  advocate  is 
authorized  only  to  initiate  the  process  of  attachment.  The  statute 
does  not  specify  b^  whom  it  shall  be  executed,  and  the  judge  advo- 
cate is  not  authorized  to  conamand  any  officer  or  person  to  serve  it; 
nor  has  the  court  any  such  power. ^  R.  50,  632,  supra;  C.  19473, 
Nov.  24,  1905. 

IV  B  4  a.  A  judge  advocate,  having  attached  a  civilian  witness 
who  was  brought  to  the  place  of  the  court,  detained  him  one  hour 
in  the  guardhouse  before  bringing  him  before  the  court.  For  this  he 
was  indicted  (for  false  imprisonement)  in  a  United  States  district 
court  in  Texas.  Held,  that  his  action  was  warranted  under  section 
1202,  R.  S.,  and  advised  that  the  Attorney  General  be  requested  to 
cause  the  prosecution  to  be  discontinued.     R.  50,  191,  Apr.,  1886. 

IV  B  5.  A  judge  advocate  of  a  court-martial  has  no  authority  to 
place  in  arrest  an  officer  or  soldier  about  to  be  tried  by  the  court,  or 
to  compel  the  attendance  of  the  accused  before  the  court  by  requiring 
a  noncommissioned  officer  to  bring  him,  or  otherwise :  These  are  duties 
which  devolve  upon  the  convening  authority  or  upon  the  post  com- 
mander or  other  proper  officer  in  whose  custody  or  command  the 
accused  is  at  the  time.     R.  28,  531,  Apr.,  1869. 

IV  C  1.  It  is  strictly  the  proper  practice  for  a  judge  advocate  not  to 
give  his  opinion  upon  a  point  of  law  arising  upon  a  military  trial, 
unless  the  same  may  be  required  by  the  court.  This  practice,  how- 
ever, is  often  departed  from,  and  the  opinions  of  judge  advocates, 
suitably  tendered,  are  in  general  received  and  entertamed  by  the  court 
without  objection,  whether  or  not  formally  called  for.  But  where  the 
court  does  object  to  the  giving  of  an  opinion  by  the  judge  advocate, 
he  is  not  authorized  to  attempt  to  give  it,  and,  of  course,  not  author- 
ized to  enter  it  upon  the  record.  Whether  the  fact — that  the  opinion 
was  offered  and  objected  to  by  the  court — shall  be  entered  upon  the 
record,  is  a  matter  for  the  court  alone  to  decide.  It  is,  however,  cer- 
tainly the  better  practice  that  all  the  proceedings,  even  those  that  are 
irregular,  which  transpire  in  connection  with  the  trial,  should  be  set 
out  in  the  record  for  the  inspection  of  the  reviewing  authority.  R. 
26,251,  Dec,  1867. 

IV  C  2  a.  The  duty  of  the  judge  advocate  toward  the  accused  should 
not  be  regarded  as  confined  to  the  limited  province  of  ''counsel  for 

»  See  par.  967,  Army  Regulations  (1910). 


DISCIPLINE  IV  c  2  a  (l).  499 

the  prisoner"  as  the  same  is  defined  in  the  ninetieth  article  of  war. 
Where  the  accused  is  ignorant  and  inexperienced  and  without  coun- 
sel— especially  where  he  is  an  enlisted  man — tlie  judge  advocate 
should  take  care  that  he  does  not  suffer  upon  the  trial  from  any  igno- 
rance or  misconception  of  liis  legal  rights,  and  has  full  opportunity  to 
interpose  such  plea  and  make  such  defense  as  may  best  bring  out  the 
facts,  the  merits,  or  the  extenuating  circumstances  of  his  case.  B.  5, 
S77,  Dec,  1863;  55,  182,  Dec,  1887.  The  judge  advocate  should 
advise  the  accused,  especially  when  ignorant  and  unassisted  by  coun- 
sel, of  liis  rights  in  defense — particularly  of  liis  right,  if  it  exists  in  the 
case,  to  plead  the  statute  of  limitation  (P.  21, 156,  Dec,  1887),  and  of 
liis  right  to  testify  in  his  own  behalf.^  A  failure  to  do  so,  however, 
will  not  affect  the  legal  vaUdity  of  the  proceedings;  though,  if  it 
appear  that  the  accused  was  actually  ignorant  of  these  rights,  the 
omission  may  be  ground  for  a  mitigation  of  sentence.  B.  55, 182,  supra; 
a  1885,  Nov.  29,  1895;  16845,  Oct.  3,  1904;  16974,  Oct.  4,  1904; 
18764,  Feb.  8,  1907. 

IV  C  2  a  (1) .  For  the  judge  advocate  to  counsel  the  accused,  when  a 
soldier  or  inferior  in  rank,  to  plead  guilty,  must  in  general  be  unbefit- 
ting and  inadvisable.  But  where  such  plea  is  voluntarily  and  intel- 
ligently made,  the  judge  advocate  should  properly  advise  the  accused 
of  liis  right  to  offer  evidence  in  explanation  or  extenuation  of  his 
offense,  and,  if  any  such  evidence  exists,  should  assist  him  in  securing 
it.  And  where  no  such  evidence  is  attainable  in  the  case,  the  judge 
advocate  should  still  see  that  the  accused  has  an  opportunity  to 
present  a  ''statement,"  written  or  verbal,  to  the  court,  if  he  has  any 
desire  to  do  so.     B.  5,  577,  Dec,  1863. 

IV  C  3.  It  is  one  of  the  duties  of  the  judge  advocate  to  prepare  the 
''complete  and  accurate  record"  which  "every  court-martial"  is 
required  by  the  Army  Regulations  to  "  keep."  He  should,  if  prac- 
ticable, complete  the  record  of  each  day's  proceedings  in  time  to  be 
submitted  to  the  court  at  the  next  day  or  next  session  for  approval 
or  correction.  The  record  is  the  record  of  the  court,  and  the  judge 
advocate  is  subject  to  the  direction  of  the  court  in  preparing  it.  B.  21, 
679,  Nov.,  1866. 

IV  C  3  a.  Should  the  judge  advocate  be  required  to  give  evidence 
as  a  witness,  the  clerk  or  reporter  of  the  court  may  go  on  to  record  his 
testimony  while  on  the  stand;  or,  if  there  be  no  clerk  or  reporter,  he 
may  record  his  own  testimony  as  that  of  any  other  witness.  B.  21, 
177,  Jan.,  1866;  0.  10808,  July  8, 1901. 

IV  C  3  b  (1).  Where  there  have  been  two  or  more  judge  advocates 
successively  detailed  in  the  course  of  a  trial,  the  one  who  is  acting  at 
the  close  is  the  one  (and  the  only  one)  required  to  authenticate  the 
proceedings  by  his  signature.     B.  2,  I48,  Apr.,  1863. 

IV  C  3  b  (2) .  The  method  of  holding  together  the  leaves  of  a  court- 
martial  record  by  means  of  a  cHp  is  not  of  sufficiently  permanent  nature 
to  guarantee  the  integrity  of  the  papers  which  make  up  the  record. 
The  method  of  binding  is  not  prescribed,  but  it  should  be  such  a  one 
as  will  securely  fasten  together  all  the  leaves  which  compose  the 
record.     C.  18764-A,  Sept.  26,  1908. 

IV  C  3  b  (3) .  The  record  will  conveniently  and  properly  be  indorsed 
on  the  outside,  or  cover,  so  that  the  name  of  the  accused,  and  the 

1  SQe  G.  O.  75,  A.  G.  O.,  1887. 


500  DISCIPLINE  IV  C  3  b  (4). 

court  by  which  he  was  tried,  with  the  time  and  place  of  trial,  etc., 
will  be  apparent  without  opening  and  examining  the  proceedings. 
R.31,2U,  Mar.  1871. 

IV  C  3  b  (4).  That  there  is  no  legal  objection  to  'printing  the  record, 
or  any  part  of  it  (such  as  the  orders,  charges,  and  specifications,  where 
numerous),  provided  of  course  the  signatures  of  the  president  and 
judge  advocate  are  written  by  them  in  person.     R.  13,  384,  Feb.,  1865. 

IV  C  4  a.  The  statute  does  not  indicate  by  whom  the  reporter  shall 
be  sworn.  In  practice  he  is  sworn  by  the  judge  advocate;  a  form  of 
oath  being  prescribed  in  the  Manual  for  Courts-Martial.  If  the  same 
party  is  employed  as  a  reporter  for  more  than  one  case,  he  should, 
properly,  be  sworn  anew  m  each  case.^  C.  294,  Sept.,  1894;  4^4^i 
4647,  July  1898;  6169,  Oct.,  1898. 

IV  D.  One  of  the  functions  of  the  judge  advocate  of  a  court-martial 
is  the  execution  of  its  orders.  If  a  court-martial  adjourns  subject  to 
the  call  of  the  presiding  officer,  the  judge  advocate  is  carrying  out  the 
orders  of  the  court  when  notifying  members  of  the  time  designated  by 
the  presiding  officer  for  reassembling.     R.  68,  670,  Apr.,  1885. 

IV  E.  The  general  presumption  of  law,  made  in  favor  of  all  public 
officers,  in  the  absence  of  affirmative  evidence  to  the  contrary  that 
they  duly  fulfill  their  functions,  applies  to  the  judge  advocate.  R.  55, 
182,  Dec,  1887. 

IV  F.  An  absence  of  the  judge  advocate  from  the  court  during  the 
trial  does  not  per  se  affect  the  validity  of  the  proceedings,  but  is  of 
'course  to  be  avoided  if  possible.  When  the  judge  advocate  is  obliged 
to  temporarily  absent  himself,  the  court  should  in  general  suspend  the 
proceedings  for  the  time;  or,  if  his  absence  is  to  be  prolonged,  should 
adjourn  for  a  certain  period.  R.  21,  177,  Jan.,  1866.  No  one  can 
assume  his  duties  in  his  absence,  except  that  the  record  of  a  meeting 
and  adjournment  in  consequence  of  such  absence  would  be  made  as  the 
court  might  direct.     C.  2059,  Feb.,  1896;  17038,  Sept.  10,  1909. 

IV  G.  A  judge  advocate  of  a  court-martial  may  be  detailed  to  per- 
form other  duty,  as  that  of  officer  of  the  day  or  member  of  a  board  of 
survey  (now  surveying  officer),  if  such  duty  wiU  not  interfere  with 
his  duties  as  judge  advocate.  But  in  general  of  course  no  duties,  in 
addition  to  those  incidental  to  his  function  as  judge  advocate,  should 
be  imposed  upon  him  pending  an  important  trial.  R.  29,  273,  Sept., 
1869.  ■ 

IV  H.  An  officer  serving  as  judge  advocate  on  the  staff  oi  a  depart- 
ment or  Army  commander  has  as  such  no  authority  to  act  as  judge 
advocate  of  a  court-martial  convened  by  such  commander.  If  it  is 
desired  that  he  should  act  as  judge  advocate  of  such  a  court,  he  should 
be  specially  detailed  for  the  purpose.     R.  5,  I40,  Oct.,  1863. 

IV  I  1.  There  is  no  special  provision  of  law  for  compensating 
attorneys  retained  as  counsel  to  assist  judge  advocates.  Such  coun- 
sel should  not  be  retained  except  in  important  and  complicated  cases; 
and  the  authority  of  the  Secretary  of  War  for  their  employment 
should  first  be  sought  and  obtained.  The  claims  of  such  counsel, 
approved  by  the  judge  advocate,  should  be  presented  to  the  Secre- 

1  The  reporter  should  be  excluded  from  the  court  during  closed  session  and  not 
permitted  to  record  the  findings  or  sentence. 


DISCIPLINE  IV  I  2.  501 

tary  of  War,  to  be  paid,  if  allowed,  out  of  the  contingent  fund.^  R.  5, 
U6,  Dec,  1863. 

IV  I  2.  The  fact  of  the  selection  of  a  certain  officer  as  the  judge 
advocate  of  a  military  court  is  evidence  that  such  officer  is  consid- 
ered qualified  to  conduct  the  prosecution  of  cases  before  such  court; 
and  the  employment  of  civil  counsel  to  aid  him  in  any  case  can  be 
authorized  only  by  the  Secretary  of  War,  or  some  proper  commander. 
For  a  judge  advocate  to  employ  counsel  without  such  authority,  or  to 
contract  with  a  counsel  to  pay  him  for  his  services  a  certain  amount 
fixed  between  them  without  the  sanction  of  the  proper  superior,  would 
be  an  irregular  and  unwarrantable  proceeding,  and  no  such  contract 
would  be  binding  upon  the  Government.  If  paid  at  all  he  should  be 
paid  only  such  amount  as,  upon  a  review  of  all  his  services  and  inspec- 
tion of  the  record  itself,  shall  be  deemed  reasonable  and  just.  R.  22, 
845,  Aug.,  1866. 

IV  K.  Other  than  the  judge  advocate,  who  by  the  ninetieth  article 
of  war  is  "required  to  prosecute  in  the  name  of  the  United  States," 
our  military  law  and  practice  recognize  no  ofiicial  prosecutor.  The 
party  who  is  in  fact  the  accuser  or  the  prosecuting  witness  is,  in 
important  cases,  not  unfrequently  permitted  by  the  court  to  remain 
in  the  court  room  and  advise  with  the  judge  advocate  during  the  trial, 
if  the  latter  requests  it;  and  in  some  cases  he  has  been  allowed  to  be 
accompanied  bv  his  own  counsel.  If  such  a  party  is  to  testify,  he 
should  ordinarily  be  the  first  witness  examined ;  this  course,  however, 
is  not  invariable.     R.2,1,  June,  1863;  29,  34,  June,  1869. 

IV  L.  The  judge  advocate  in  our  practice  is  entitled  to  the  closing 
argument  or  address  to  the  court,  and  he  may  present  an  address 
although  the  accused  waives  his  right  to  present  any;  the  function  of 
the  judge  advocate  at  this  stage  of  the  proceedings  not  being  con- 
fined merely  to  a  replying  to  the  accused.  The  court  is  not  authorized 
to  deny  to  the  judge  advocate  this  right  to  be  heard.  R.  11,  377, 
Jan.,  1865;  32,  499,  Apr.,  1872;  49,  613,  Dec,  1885.  The  judge 
advocate  in  liis  address  is  not  authorized  to  read  to  the  court  evidence 
or  written  statements  not  introduced  upon  the  trial  and  which  the 
accused  has  had  no  opportunity  to  controvert  or  comment  upon. 
R.  22,  238,  June,  1866. 

IV  M.  Where  the  court  was  convened  by  a  military  officer — as,  in 
a  case  of  a  general  court,  the  general  of  the  Army  or  a  department  or 
Army  commander — it  is  the  duty  of  the  judge  advocate,  upon  the 
completion  of  the  record,  to  transmit  the  same  to  such  officer  (or  his 
successor  in  command)  for  the  proper  action.  Where  the  court  was 
convened  by  the  President,  it  is  the  duty  of  the  judge  advocate  to 
transmit  the  completed  proceedings  directly  to  the  Judge  Advocate 

^  In  cases  of  exceptional  difficulty  and  public  importance  civil  counsel  were  formerly 
not  unfrequently  retained  to  assist  the  judge  advocate,  as  indicated  in  the  text.  Since 
the  creation,  however,  of  the  office  of  Judge  Advocate  General  of  the  Army,  and  of  the 
corps  of  Judge  Advocates,  by  the  act  of  July  17,  1862,  such  instances  have  been  of  the 
rarest  occurrence.  Under  the  existing  law  (Sec.  189,  R.  S.),  indeed,  counsel  could 
be  employed  (at  the  public  expense)  for  this  purpose  only  through  the  Department  of 
Justice  upon  the  request  or  recommendation  of  the  Secretary  of  War.  See  Discipline 
III  C  2  b. 


502  DISCIPLINE  IV  N. 

General/  in  order  that  he  may  exercise  the  revisory  function  reposed 
in  him  by  section  1199,  R.  S.^     R.  ^2,  457,  Bee,  1879. 

IV  N.  A  judge  advocate  is  not  subject  to  challenge.  B.  35,  618, 
Oct,  1874- 

IV  O.  Under  the  custom  of  the  service  the  judge  advocate  may 
also  challenge  for  cause.     C.  2059,  Feb.,  1896. 

V  A.  Except  by  the  authority  of  express  statute,  an  accused  can 
never  be  entitled  to  be  tried  by  court  martial.  Where  he  is  amenable 
to  trial,  the  Government  may  cause  him  to  be  tried  or  may  waive  a 
trial,  at  discretion.     R.  34,  413,  Aug.,  1873;  P.  65,  259,  June,  1894. 

V  B.  The  principle  of  the  fifth  amendment  to  the  Constitution, 
but  not  the  amendment  itself,  applies  to  courts  martial  trials  as  a 
part  of  our  common  law  military.  As  section  860,  R.  S.,  does  not 
apply  to  courts  martial,  it  does  not  set  aside  the  general  principle 
which  with  courts  martial  takes  the  place  of  the  constitutional  pro- 
vision, but  whether  it  applies  or  not,  an  accused  on  trial  before  a  court 
martial  can  not,  when  testifying  as  a  witness  in  his  own  behalf,  be 
compelled  by  it  to  criminate  himself  as  to  an  offense  in  respect  to 
whicn  he  has  not  testified.     C.  1495,  July,  1895. 

V  B  1 .  When  an  accused  person  denies  that  he  is  the  person 
described  in  the  charges,  held  that  evidence  of  identity  may  be  intro- 
duced which  was  secured  by  surgeons  in  the  Army  at  the  time  of  the 
physical  examination  required  by  the  Regulations  and  recorded  in 
the  regular  records,  or  which  was  secured  by  surgeons  of  the  Army 
when  the  accused  was  a  patient  under  the  charge  of  such  surgeons.^ 
a  24624,  Mar.  13,  1909. 

V  C.  The  fact  that  the  accused  is  an  officer  of  high  rank  should 
not  be  regarded  as  constituting  a  ground  for  allowing  him  any  special 
right  or  privilege  in  his  defense  before  a  court  martial.  The  adminis- 
tration of  justice  by  a  military  as  by  a  civil  court  must  be  strictly 
impartial,  or  it  ceases  to  be  pure.  All  persons  on  trial  by  the  one 
species  of  tribunal  as  by  the  other  are  deemed  to  be  equal  before  the 
law.     R.  11,  204,  Dec,  I864. 

V  D  1.  In  order  that  he  may  not  be  embarrassed  in  making  his 
defense,  the  accused  party  on  trial  before  a  court  martial  should  be 
subjected  to  no  restraint  other  than  such  as  may  be  necessary  to 
enforce  his  presence  or  prevent  disorderly  conduct  on  his  part. 
Except,  therefore,  in  an  extreme  case,  as  where  the  accused  being 

1  See  G.  0.  72,  War  Dept.,  1873;  do.  39,  Hdqrs.  of  Army,  1877. 

2  It  may  here  be  noted  that  the  one  hundred  and  thirteenth  article  of  war,  the  only 
statute  relating  to  the  forwarding,  by  judge  advocates  of  the  proceedings  of  general 
courts,  is  incomplete  and  not  in  harmony  with  the  provisions  of  arts.  104  and  109. 
The  practice  on  the  subject  is  now  regulated  by  i)aragraph  892,  Army  Regulations  of 
1895  (932  of  1910),  which  requires  that  "proceedings  of  all  courts  and  military  com- 
missions appointed  by  the  President "  shall  be  sent  direct  to  the  Secretary  of  War. 

3  O'Brien  v.  Ind.  L.  R.  A.,  Book  9,  1890,  page  233;  see  also  vol.  12,  Cyc.  of  Law 
and  Procedure,  page  401;  see  also  Wigmore  on  Evidence,  sections  2250  to  2382.  In 
the  case  of  State  v.  Ah  Chuey  it  was  held  that  "Upon  the  trial,  a  question  was  raised 
as  to  the  identity  of  the  defendant.  One  witness  testified  that  he  knew  the  defendant, 
and  knew  that  he  had  tattoo  marks  (a  female  head  and  bust)  on  his  right  forearm. 
The  court  thereupon  compelled  the  defendant  against  his  objection  to  exhibit  his 
arm  in  such  a  manner  as  to  show  the  marks  to  the  jury.  Held  that  this  action  of  the 
court  was  not  in  violation  of  the  clause  in  the  State  constitution  which  declares  that 
no  person  shall  be  compelled  'in  any  criminal  case  to  be  a  witness  against  himself,'  " 
that  it  was  not  prejudicial  to  defendant  and  was  not  erroneous."  (State  v.  Ah  Chuey, 
alias  Sam  Good,  14  Nov.,  p.  79.) 


DISCIPLINE  V  D  2  a.  603 

charged  with  an  aggravated  and  heinous  offense,  there  is  reasonable 
ground  to  beUeve  that  he  will  attempt  to  escape  or  to  commit  acts 
of  violence,  the  keeping  or  placing  of  irons  upon  him  while  before  the 
court  will  not  be  justified.*  Even  in  such  a  case  it  will  be  preferable 
to  place  an  adequate  guard  over  him.  R.  SI,  102,  Dec,  1870;  32 ^ 
274,  633,  Jan.  and  May,  1872. 

V  D  2  a.  It  is  not  a  sufiicient  defense  to  a  charge  of  striking  or 
using  other  violence  against  a  soldier,  by  an  officer,  that  the  soldier 
was  himself  violent  and  insubordinate,  unless  it  clearly  appears  that 
the  force  employed  by  the  officer  was  resorted  to  in  self  defense,  or 
that  the  soldier  could,  not  have  been  repressed  or  restrained  by  the 
usual  and  legitimate  methods  and  instrumentalities  of  discipline. 
R.  53,  193,  Oct,  1886;  P.  43,  52,  Sept.,  1890;  60,  257,  June,  1893. 

V  D  2  b.  An  officer  having  had  a  verbal  altercation  with  another 
officer  (of  superior  rank)  in  which  the  latter  had  (as  he,  the  former, 
represented)  used  invidious  language  toward  him  and  threatened  his 
life,  addressed  to  the  latter,  on  the  following  day,  a  highly  abusive 
and  insulting  communication  in  writing.  On  his  being  brought  to 
trial  for  this  offense,  the  court-martial  sentenced  him  only  to  be  repri- 
manded— on  account,  as  they  expressed  it,  of  the  ''great  provocation" 
received  by  him.  Held  that  the  proper  redress  of  the  accused  in  such 
a  case  was  by  complaint  to  the  proper  superior  and  the  preferring  of 
charges;  that  the  course  taken  by  him  was  unmilitary  and  unbe- 
coming, the  language  used  by  the  other,  however  reprehensible,  con- 
stituting no  legal  provocation  and  no  defense  to  his  act  as  charged. 
P.  65,  285,  June,  1894. 

V  D  2  c.  Held  that  it  was  not  a  sufficient  defense  to  a  charge,  under 
article  60  or  article  61,  of  dupUcation  of  a  pay  account,  that  the 
accused  had  an  understanding  with  the  first  assignee  that  he  was 
not  to  present  the  account  assigned  to  him  till  the  accused  should 
have  an  opportunity  to  withdraw  it  and  substitute  other  security. 
The  fact  that  an  accused  assigns  a  second  account,  while  the  first, 
without  the  knowledge  of  the  second  assignee,  is  still  outstanding  in 
the  hands  of  the  first  assignee,  completes  the  offense.  P.  50,  45,  219, 
Oct  and  Nov.,  1891;  C.  15373,  Apr.  6,  1904. 

V  D  3.  After  the  accused  has  been  arraigned  upon  certain  charges, 
and  has  pleaded  thereto,  and  the  trial  on  the  same  has  been  entered 
upon,  new  and  additional  charges,  which  the  accused  has  had  no 
notice  to  defend,  can  not  be  introduced  or  the  accused  required  to 
plead  thereto.  Such  charges  should  be  made  the  subject  of  a  separate 
trial,  upon  which  the  accused  may  be  enabled  ])roperly  to  exercise 
the  right  of  challenge  to  the  court,  and  effectively  to  plead  and 
defend.     R.  24,  513  and  577,  May,  1867. 

V  D  4.  A  failure,  at  the  arraignment,  to  take  notice  of  a  variance 
between  the  form  of  a  specification  to  which  the  accused  is  called 
upon  to  plead  and  such  specification  as  it  appeared  in  the  copy  of  the 
charges  served  at  his  arrest,  is  a  waiver  of  the  objection,  and  the  same 
can  not  be  taken  advantage  of  at  a  subsequent  stage  of  the  pro- 
ceedings.    P.  64,  172,  Mar.,  1894. 

V  D  5.  Drunkenness  caused  by  morphine  or  other  drug  (see  thirtjr- 
eighth  article) ,  prescribed  by  a  medical  officer  of  the  i&my  or  civil 

^  Compare  G.  C.  M.  0.  62,  Dept.  of  the  Missouri,  1877;  do.  55,  id.,  1879;  and— as 
to  the  civil  practice — Lee  i;.  State,  51  Miss.,  566;  People  v.  Harrington,  42  Cal.,  175. 


504  DISCIPLINE  V  D  6. 

physician,  may  constitute  an  excuse  for  a  breach  of  discipUne  com- 
mitted by  an  officer  or  soldier,  provided  it  quite  clearly  appears  that 
this  was  the  sole  cause  of  the  offense  committed,  the  accusea  not  being 
chargeable  with  negligence  or  fault  in  the  case.     R.  28,  390,  Feb.,  1869. 

V  D  6.  The  order  of  a  commanding  officer  will  in  general  constitute 
a  sufficient  authority  for  acts  regularly  done  by  an  inferior  in  compli- 
ance with  the  same.  Where,  however,  the  order  of  the  superior  is  a 
palpably  illegal  order,  the  inferior  can  not  justify  under  it;  ^  and  if 
brought  to  trial  by  court-martial,  or  sued  in  damages  for  an  act  done 
by  him  in  obedience  thereto,  the  order  will  be  admissible  only  in 
extenuation  of  the  offense.^    R.  25,  692,  June,  1868, 

In  the  Fair  case  {In  re  Fair,  100  Fed.  Kep.,  149)  the  following  lan- 
guage of  the  court  in  McCall  v.  McDowell  (Federal  Cases,  No.  8673)  is 
cited  with  approval:  ''Except  in  a  plain  case  of  excess  of  authority, 
where  at  first  blush,  it  is  apparent  and  palpable  to  the  commonest 
understanding  that  the  order  is  illegal,  I  can  not  but  think  that  the 
law  should  excuse  the  military  subordinate  when  acting  in  obedience 
to  the  orders  of  his  commander.  The  first  duty  of  a  soldier  is  obe- 
dience, and  without  this  there  can  be  neither  disciphne  nor  efficiency 
in  the  Army.  If  every  subordinate  officer  and  soldier  were  at  liberty 
to  question  the  legality  of  the  orders  of  the  commander,  and  obey 
them  or  not,  as  they  may  consider  them  valid  or  invalid,  the  camp 
would  be  turned  into  a  debating  school,  where  the  precious  moment 
for  action  would  be  wasted  in  wordy  confficts  between  the  advocates 
of  confficting  opinions."  While  this  may  be  true  as  applied  to 
criminal  cases  (although  McCall  v.  McDowell  was  a  civil  case),  it 
certainly  is  not  correct  in  civil  cases.  See  Bates  v.  Clark,  95  U.  S. 
204,  in  which  the  Supreme  Court  held  in  a  civil  suit  for  damages  as 
follows:  ''It  is  a  sufficient  answer  to  the  plea,  that  the  defendants 
were  subordinate  officers  acting  under  orders  of  a  superior,  to  say 
that  whatever  may  be  the  rule  m  time  of  war  and  in  the  presence  of 
actual  hostilities,  military  officers  can  no  more  protect  themselves 
than  civilians  in  time  of  peace  by  orders  emanating  from  a  source 
which  is  itself  without  authority.^^     C.  7500,  June,  1900. 

V  E.  An  objection  that  a  charge  is  not  signed  should  be  taken  at 
the  arraignment — when  the  omission  may  be  supplied  by  the  judge 
advocate's  affixing  his  signature.  By  pleading  the  general  issue  the 
accused  waives  the  objection.     P.  59,  258,  May,  1893. 

V  F.  The  prosecution  is  at  liberty  to  charge  an  act  under  two  or 
more  forms,  where  it  is  doubtful  under  which  it  will  more  properly  be 

1  See  Harmony  v.  Mitchell,  1  Blatch.,  549;  Mitchell  v.  Harmony,  13  How.,  115; 
Durant  v.  Hollins,  4  Blatch.,  451;  Holmes  v.  Sheridan,  1  Dillon,  357;  McCall  v. 
McDowell,  Deadv,  233,  and  1  Ab.  U.  S.  R.,  212;  Clay  v.  United  States,  Devereux  (Ct. 
Cls.),  25;  United  States  v.  Carr,  1  Woods,  480;  Bates  v.  Clark,  5  Otto,  204;  Ford  v. 
Surget,  7  Otto,  594;  Skeen  v.  Monkeimer,  21  Ind.,  1;  Griffin  v.  Wilcox,  id.,  391;  Riggs 
v.  State,  3  Coldw.,  851;  State  v.  Sparks,  27  Texas,  632;  Keighly  v.  Bell,  4  Fost.  and 
Fin.,  805;  Dawkins  v.  Rokeby,  id.,  831.  The  law  is  the  same  although  the  order  to 
the  inferior  may  emanate  directly  from  the  President.  See  Eifort  v.  Bevins,  1 
Bush,  460. 

2  State  v.  Sparks,  w.pra;  McCall  v.  McDowell,  supra;  Milligan  v.  Hovey,  3  Bissell,  13; 
Beckwith  v.  Bean,  8  Otto,  266. 

3  But  that  officers  and  soldiers  of  the  United  States  who,  in  good  faith  without  any 
criminal  intent,  but  with  an  honest  purpose  to  perform  a  supposed  dut>^  as  soldiers 
under  the  law  of  the  United  States,  act  in  obedience  to  an  order,  the  illegality  of 
which  is  not  apparent  and  palpable  to  the  dullest  understanding,  are  not  liable  to 
prosecution  under  the  crimmal  laws  of  a  State,  see  further  the  case  of  Fair  cited 
m  the  text.    See  also  U.  S.  v.  Clark,  31  Fed.  Rep.,  710. 


DISCIPLINE  V  G  1.  '  505 

brought  by  the  testimony.^  Iii  the  military  practice  the  accused  is 
not  entitled  to  call  upon  the  prosecution  to  "elect"  under  which 
charge  it  will  proceed  in  such,  or  indeed  in  any,  case.  R.  33,  306, 
Aug.  1872. 

V  G  1.  An  officer  or  soldier  put  upon  trial  before  a  court-martial 
is  not  entitled  as  of  right  to  have  counsel  present  with  him  to  assist 
him  in  his  defense,  but  the  privilege  is  one  which  is  almost  invariably 
conceded,^  and  where  it  is  unreasonably  refused,  such  refusal  may 
constitute  ground  for  the  disapproval  of  the  proceedings.  R.  32,  519^ 
Apr.,  1872.  A  court-martial,  nowever,  is  not  required  to  delay  an 
unreasonable  time  to  enable  an  accused  to  provide  himself  with 
counsel.     R.  30,  102,  Feb.,  1870;  G.  13892,  Dec.  29,  1902. 

V  G  2.  An  accused,  prior  to  arraignment,  even  if  in  close  arrest, 
should  be  allowed  to  have  interviews  with  such  counsel,  military  or 
civil,  as  he  may  have  selected.  R.  12,  J^J^l,  June,  1865;  21,  I4I, 
Dec,  1865.  So,  his  counsel  should  be  permitted  to  have  interviews 
with  any  accessible  military  person  who  may  be  a  material  witness 
for  the  accused,  or  whose  knowledge  of  facts  may  be  useful  to 
the  accused  in  preparing  for  trial.  R.  19,  33,  Oct.,  1865;  Q.  13892, 
Dec.  29,  1902. 

V  G  3.  Section  III,  Circular  8,  Adjutant  General's  Office,  1894, 
provides  that  "no  officer  directly  responsible  for  the  discipline  of  an 
organization  or  organizations  under  his  command — as  the  command- 
ing officer  of  a  post,  band,  company,  battalion,  squadron,  or  regi- 
ment— ^nor  the  trial  officer  of  a  summary  court  will  oe  regarded  as  a 
*  suitable'  officer  under  the  provisions  of  General  Order  29,  Adjutant 
General's  Office,  1890,  for  this  duty  (counsel  for  defense  before 
general  court-martial)  at  the  post  where  he  is  stationed."  Held,  that 
the  section  quoted  was  intended  to  declare  the  officers  mentioned 
therein  not  suitable  for  the  duty  of  counsel,  and  that  it  should  not 
be  construed  as  conferring  upon  them  an  exemption  from  such  duty, 
which  they  could  waive.     U.  29,  July,  1894. 

V  G  4.  fey  the  use  of  the  word  counsel  in  General  Order  No.  29, 
Adjutant  General's  Office,  1890,  without  qualification,  it  was  Un- 
doubtedly intended  that  officers  detailed  as  such  should  perform  for 
an  accused  soldier  all  those  duties  which  usually  devolve  upon  counsel 
for  defendants  before  civil  courts  of  criminal  jurisdiction,  in  so  far 
as  such  duties  are  apposite  to  the  procedure  of  military  courts.  It 
would  be  proper  for  an  officer  so  detailed  to  employ  ail  honorable 
means  to  acquit  him,  that  is  to  invoke  every  defense  which  the  law 
and  facts  justify,  without  regard  to  his  own  opinion  as  to  the  guilt 
or  innocence  of  the  accused.  Military  law  does  not  any  more  than 
the  civil  assume  to  punish  all  wrongdoing,  but  only  such  as  can  be 
ascertained  by  the  methods  of  justice  which  the  law  and  the  customs 

^  "For  the  pilrpose  of  meeting  the  evidence  as  it  may  transpire."  State  v.  Bell,  27 
Md.,  675. 

2  See  McNaughten,  p.  178;  Macomb  (edition  of  1809),  p.  94;  Winthrop,  Mil.  Law 
and  Precedents,  241. 

In  the  case  published  in  par.  4,  S.  O.  145,  Dept.  of  the  East,  1896,  the  Department 
Commander  decided,  as  shown  by  the  record,  that  "as  there  is  no  officer  *  *  * 
available  for  detail  as  counsel,  it  is  believed,  considering  each  of  the  charges,  that 
the  judge  advocate  of  the  court  should  be  able  to  guard  the  interests  of  the  accused." 

Compare,  on  this  subject,  People  v.  Daniell,  6  Lansing,  44;  People  v.  Van  Allen, 
55  New  York,  31. 


506  DISCIPLINE  V  G  5. 

of  the  service  prescribe.^     P.  64,  I64,  Mar.,  189^;  0.  609,  Nov.,  1894; 
15627,  Dec.  7,  1903. 

V  G  5.  An  application  by  an  accused  officer  to  be  furnished,  at 
the  expense  of  the  United  States,  with  civil  counsel  to  defend  him 
on  his  trial  by  court-martial,  remarked  upon  as  unprecedented  and 
not  to  be  entertained.  (Paragraphs  1012  and  1013)  Army  Regula- 
tions (1910)  relate  to  no  such  a  case.  P.  SO,  277,  Nov.,  1891.  No 
authority  exists  for  the  payment  by  the  United  States  of  civil 
counsel  employed  by  an  officer  or  an  enlisted  man  to  defend  him 
on  his  trial  by  court-martial.  P.  82,  165,  May,  1889;  45,  438,  Feb., 
1891. 

V  G  6.  Held,  that  it  is  not  the  policjr  of  the  Government  to  incur 
expenses  for  defending  officers  before  military  courts  from  the  conse- 
quences of  their  misconduct,  and  that  counsel  should  look  to  the 
accused  for  reimbursement  for  any  expenses  incurred  as  counsel. 
0.  13470,  Oct.  20,  1902.  ^ 

V  H  1 .  In  any  case  tried  by  court  martial  the  accused  may,  if  he 
thinks  proper  (and  whether  or  not  he  has  taken  the  stand  as  a  wit- 
ness 2),  present  to  the  court  a  statement  or  address  either  verbal  or  in 
writing.  Such  statement  is  not  evidence:  ^  as  a  personal  defense  or 
argument,  however,  it  may  and  properly  should  be  taken  into  con- 
sideration by  the  court.     R.  20,  432,  Feb.,  1866. 

V  H  2.  While  the  statement  is  not  evidence,  and  the  accused  is  not 
in  general  to  be  held  bound  by  the  argumentative  declarations  con- 
tained in  the  same,  yet,  if  he  clearly  and  unequivocally  admits  therein 
facts  material  to  the  prosecution,  such  may  properly  be  viewed  by 
the  court  and  reviewing  officer  as  practically  facts  in  the  case.*  R.  27, 
407,  Dec,  1868.  So,  where  the  accused,  in  his  statement,  fully 
admits  that  certain  facts  existed  substantially  as  ;proved,  he  may  be 
regarded  as  waiving  objection  to  any  irregularity  in  the  form  of  the 
proof  of  the  same.     R.  27,  385,  Nov.,^  1868. 

V  H  3.  A  large  freedom  of  expression  in  his  statement  to  the  court 
is  allowable  to  an  accused,  especially  in  his  comments  upon  the  evi- 
dence. So,  an  accused  may  be  permitted  to  reflect  within  reasonable 
limits  upon  the  apparent  animus  of  his  accuser  or  prosecutor,  though  a 
superior  officer  and  of  high  rank.  But  an  attack  upon  such  a  superior, 
of  a  personal  character  and  not  apposite  to  the  facts  of  the  case,  is  not 
legitimate;  nor  is  language  of  marked  disrespect  employed  toward  the 
court.  Matter  of  this  description  may  indeed  be  required  by  the 
court  to  be  omitted  by  the  accused  as  a  condition  to  his  continuing  his 
address  or  filing  it  with  the  record.     R.  27,  520,  Feb.,  1869. 

V  H  4.  Where  the  accused  submits  a  written  statement  in  his 
behalf,  or  interposes  a  plea,  such  plea  or  statement  should  be  signed 
by  him,  or  by  counsel  in  his  behalf,  and  appended  to  the  record.  C. 
18764,  Nov.  9,  1910.^ 

V  H  5.  The  publication  by  an  officer,  after  his  acquittal,  of  the 
statement  presented  by  him  to  the  court  on  his  trial,  in  which  he 

1  See  Counsel,  Court  Martial  Manual  of  1908,  p.  26. 

2  See  G.  C.  M.  O.  2,  Dept.  of  the  Missouri,  1880. 

'  That  a  sworn  statement  can  not  be  made  to  serve  as  the  testimony  of  the  accused 
as  a  witness  under  the  act  of  Mar.  16,  1878. 

*  That  a  fact  clearly  admitted  or  assumed  in  the  course  of  a  trial  may  be  considered 
as  much  in  the  case  as  if  it  had  been  expressly  proved,  see  Paige  v.  Fazackerly,  36 
Barb.  (N.  Y.),  392. 


DISCIPLINE  VI.  507 

reflected  in  violent  and  vituperative  language  upon  the  motive  and 
conduct  of  an  officer  of  the  same  regiment,  his  accuser,  and  denounced 
liim  as  devoid  of  the  instincts  of  a  gentleman  and  a  disgrace  to  the 
service — held,  to  constitute  a  serious  military  offense,  to  the  prejudice 
of  good  order  and  military  discipline,  if  not  indeed  a  violation  of 
article  61;  and  further  that  it  was  no  defense  to  such  a  publication 
that  the  court  on  the  trial  had  permitted  the  statement  to  be  made 
and  recorded.     R.  33,  582,  Dec,  1872;  34,  186,  Mar.,  1873. 

VI.  Held,  that  an  acquittal  leaves  the  accused  in  the  condition  in 
which  he  was  before  tlie  trial.     C.  l^i^,  June  6,  1895. 

VI  A.  To  add  a  new  member  to  a  mihtary  court  after  any  material 
part  of  the  trial  has  been  gone  through  with,  must  always  be  a  most 
undesirable  measure,  and  one  not  to  be  resorted  to  except  in  an  excep- 
tional case  and  to  prevent  a  failure  of  justice.  Adding  a  member  after 
all  the  testimony  has  been  introduced,  and  notliing  remains  except  the 
finding  and  sentence,  is  believed  to  be  without  precedent.  R.  41, 
525, Mar.,  1879. 

VI  B.  While  it  is  in  general  undesirable  that  a  member  of  a  military 
court  should  testify  as  a  witness  at  a  trial  had  before  such  court,  unless 
perhaps  his  testimony  relates  to  character  merely,  yet  the  fact  that  he 
IS  called  upon  to  testify,  while  it  does  not  affect  the  validitv  of  the 
proceedings,^  does  not  operate  to  debar  the  member  himself  from  the 
exercise  of  any  of  the  duties  or  rights  incident  to  his  membership. 
He  remains  entitled  to  take  part  in  all  deliberations,  including  indeed 
those  had  in  regard  to  the  admissibility  of  questions  put  to  himself  or 
of  liis  answers  to  questions.     R.  26,  216,  Nov.,  1867. 

VI  C.  Anofficer  was  released  from  arrest,  then  served  as  a  member 
of  a  general  court-martial,  and  was  later  again  placed  in  arrest. 
Held,  that  since  the  officer  at  the  time  he  sat  as  a  member  of  the  general 
court-martial  was  not  in  arrest,  his  status  as  a  member  of  the  court 
was  entirely  proper.     C.  19394,  Mar.  21,  1906. 

VI  D.  A  member  of  a  court-martial,  though  strictly  answerable 
only  to  the  convening  authority  for  a  neglect  to  be  present  at  a  session 
of  the  court,  will  properly,  when  prevented  from  attending,  communi- 
cate the  cause  of  liis  absence  to  the  president  or  judge  advocate,  so  that 
the  same  may  be  entered  in  the  proceedings.  Where  a  member,  on 
reappearing  after  an  absence  from  a  session,  fails  to  offer  any  explana- 
tion of  such  absence,  it  will  be  proper  for  the  president  of  the  court  to 
ask  of  him  such  statement  as  to  the  cause  of  his  absence  as  he  may 
tliink  proper  to  make.^    R.  30,  315,  May,  1870. 

VI  E.  An  officer  is  not  exempt  from  arrest  by  virtue  of  being  at 
the  time  a  member  of  a  general  court-martial.^     R.  7,  320,  Mair.,  1864. 

VI  F.  Where,  in  the  course  of  a  trial  by  court-martial,  a  member  of 
a  court  is  served  with  a  legal  order  in  due  form  dismissing  or  discharg- 
ing him  from  the  military  service,  or  an  ofllicial  communication  notify- 
ing him  of  the  acceptance  of  his  resignation,  he  becomes  thereupon 
separated  from  the  Army  and  can  no  longer  act  upon  the  court;  he 
should  therefore  at  once  withdraw  therefrom,  and  the  fact  of  his  with- 

^  Compare  People  v.  Dohring,  59  N.  York,  374. 

^  It  need  scarcely  be  added  that  the  absence  of  a  member  does  not  affect  the  legality 
of  the  proceedings,  provided  a  quorum  of  members  remain.     See  7  Op.  At.  Gen.,  101. 

^  But  an  arrest  of  an  officer  while  actually  engaged  upon  court-martial  duty  should, 
if  practicable,  be  avoided. 


608  DISCIPLIKE  VI  G  1. 

drswal/  explained  by  a  copy  of  the  order,  be  entered  upon  the  record. 
R.  11,  20S,  Dec,  1864-  But  where  the  term  of  service  of  a  member 
as  an  officer  of  volunteers  expired  pending  a  trial  by  the  court,  held 
that  the  member  was  not  thereupon  disqualified,  but  could  legally  con- 
tinue to  act  upon  the  court  till  actually  discharged  or  mustered  out  of 
the  service."    R.  IS,  111,  Mar.,  1865. 

VI  G  1.  No  special  rank  or  qualifications  are  required  for  the  posi- 
tion of  president  of  a  military  court.  In  our  practice  the  president  is 
not  appointed  as  such ;  he  is  simply  the  senior  in  rank  of  the  members 
present,  and  he  presides  by  virtue  of  his  seniority  alone.  If  the  senior 
of  the  officers  detailed  in  the  convening  order  is  not  present  with  the 
court  at  the  original  organization,  the  next  senior  present  becomes 
president;  so,  if  the  officer  who  presided  at  the  beginning  of  a  trial  is 
at  a  subsequent  stage  of  the  proceedings  relieved  or  compelled  to  be 
absent  by  sickness,  etc.,  the  next  ranking  officer  present  presides  as  a 
matter  of  course ;  and  the  senior  officer  present  with  the  court  at  the 
termination  of  the  trial  authenticates  the  proceedings  as  president. 
R.  30,  246,  Apr.,  1870;  C.  5332,  Nov.,  1898. 

VI  G  2.  While  a  special  authority — that  of  swearing  the  judge- 
advocate — is  devolved  upon  the  president  of  a  military  court  by 
statute  (the  eighty-fifth  article  of  war),  such  officer  has,  in  other 
respects,  as  in  preforming  the  usual  duties  of  a  presiding  officer,  in 
authenticating  the  proceedings  with  his  signature,  and  in  communi- 
cating with  the  convening  officer  or  other  commander,  no  original 
authority,  but  acts  simply  as  the  representative  and  ''organ''  of  the 
court.^    R.  27,  678,  June,  1869;  30,  2^6,  Apr.,  1870. 

VI  G  3.  The  president  of  a  military  court  has  no  command  as  such; 
as  president  he  can  not  give  an  order  to  any  other  member.  As  the 
organ  of  the  court  he  gives,  of  course,  the  directions  necessary  to  the 
regular  and  proper  conduct  of  the  proceedings ;  but  a  failure  to  comply 
with  a  direction  given  by  him,  while  it  may  constitute  "conduct  to 
the  prejudice  of  good  order  and  military  discipline,"  can  not  properly 
be  charged  as  a  "disobedience  of  a  lawful  command  of  a  superior 
officer,''  in  violation  of  article  21.     R.  30, 246,  315,  Apr.  and  May,  1870. 

VII  A.  A  court-martial  has  only  statutory  powers.  Held,  there- 
fore, that  it  can  exercise  no  common  law  functions  such  as  the  general 
power  to  punish  for  contempt.     R.  4^,  306,  Aug.  27,  1885. 

VII  B  1.  To  be  taken  cognizance  of  by  the  court,  it  is  not  essential 
that  a  charge  should  be  signed  by  any  officer.  If,  though  not  so 
signed,  it  be  duly  officially  transmitted  by  the  convening  commander, 
or  other  competent  superior  authority,  to  the  court — either  directly  or 
through  the  judge  advocate — "for  trial,"  or  "for  the  action  of  the 
court,"  or  in  terms  to  such  effect,  it  is  sufficiently  authenticated  for 
the  purposes  of  trial,  and  trial  upon  it  may  be  proceeded  with  by 

1  But  the  receipt  by  a  member,  during  the  proceedings  of  the  court,  of  an  appoint- 
ment to  a  higher  rank,  or  of  other  official  notice  of  his  promotion,  can  affect  in  no 
manner  his  competency  to  act  upon  the  court.  The  fact  of  the  promotion  should 
indeed  be  noted  in  the  record  and  the  officer  be  thereafter  designated  by  his  new 
rank. 

2  In  a  case  in  G.  C.  M.  O.  104,  Dept.  of  Kentucky,  1865,  the  proceedings  were, 
properly,  disapproved  because  a  member  had  remained  and  acted  upon  the  trial  after 
receiving  official  notice  of  his  muster  out. 

2  In  deliberations  on  questions  raised  upon  a  trial,  as  well  as  in  the  finding  and  the 
adjudging  of  the  sentence,  the  presiding  member  is  on  a  perfect  equality  with  the 
C'ther  members.  He  has  no  casting  vote,  nor,  if  the  vote  is  even,  does  his  vote  have 
anj'  greater  or  other  weight  or  effect  than  that  of  any  other  member. 


DISCIPLINE   VII  B  2.  509 

arraignment  thereon  of  the  accused.  R.  55,  869,  Mar.,  18S8;  30, 
489,  July,  1870;  P.  59,  258,  May,  1893;  C.  3913,  Apr,,  1898,^ 

VII  B  2.  A  court-martial  is  not  authorized,  in  its  discretion  and 
of  its  own  motion,  to  reject  or  strike  out  a  charge  or  specification 
formally  referred  to  it  for  trial  by  competent  authority,  nor  to  direct 
or  permit  the  judge  advocate  to  drop  or  withdraw  such  a  charge  or 
specification,  or  enter  a  nolle  prosequi  as  to  the  same.  For  such 
action  the  authority  of  the  convening  commander  is  requisite.^  But 
where,  by  a  special  plea  or  objection,  an  issue  is  made  by  the  accused 
as  to  the-  sufficiency  of  any  pleading,  the  court,  ^vithout  referring  the 
question  to  the  convening  officer,  is  empowered  to  allow  the  plea  or 
objection  and  quash  or  strike  out  the  charge,  etc.  ^  R.  29,  370,  Oct., 
1869;  P.  20,  378,  Nov.,  1887. 

VII  C.  1.  Except  where  it  sustains  a  challenge  under  article  88,  a 
court-martial  is  not  authorized  to  dispense  with  the  attendance  of  a 
member.^  R.  37,  34,  Sept.,  1875.  It  can  not  excuse  a  member  to 
enable  him  to  attend  to  other  duties;  for  example,  to  act  as  counsel 
for  the  accused.  For  such  purpose  he  must  be  duly  relieved  by  the 
convening  authority.  R.  21,  650,  Sept.,  1866;  35,  488,  490,  July, 
1874'  Wiere  a  court-martial  relieved  two  of  its  members  on  the 
ground  that,  having  been  absent  from  a  portion  of  the  proceedings, 
they  had  not  heard  a  portion  of  the  testimony,  Jield  that,  provided 
Jive  members  had  always  remained  and  been  present,  the  validity  of 
the  findings  and  sentence  was  not  affected,  and  the  same  would 
properly  be  approved  unless  it  appeared  that  the  action  of  the  court 
had  in  some  manner  prejudiced  the  defense.  P.  15,  48,  Feb.,  1887; 
0.  4642,  July  19,  1898;  5325,  Nov.  15,  1898;  5484,  Dec.  9,  1898; 
6121,  Mar.  25,  1899;  18305,  July  17,  1905;  22162,  Oct.  5,  1907.^ 

VII  C  1  a.  Held  that  a  general  court-martial  has  no  authority  to 
seat  members  in  any  order  of  rank  different  from  that  indicated  by 
the  convening  order.     C.  15262,  Sept.  8,  1903. 

VII  C  2.  For  the  court  or  the  president  of  the  court  to  place  or 
order  the  judge  advocate  in  arrest  would  be  an  unauthorized  proceed- 
ing. The  court  indeed,  in  a  proper  case  under  article  86,  might  pro- 
ceed against  its  judge  advocate  as  for  a  contempt.  But  an  arrest 
could  not  be  imposed  nor  a  punishment  executed  in  the  case  of  such 
officer  except  through  the  convening  authority  or  other  competent 
commander.     R.  3,  603,  Sept.,  1863;  21,  629,  Sept.,  1866. 

VII  C  3.  A  court-martial  has  no  authority  over  the  person  of  an 
accused  except  when  he  is  before  it  for  trial.  It  can  not  arrest  him, 
or  by  its  own  order  cause  him  to  be  brought  to  the  place  of  trial,  the 
compelling  of  his  attendance  before  the  court  being  a  duty  of  the 
convening  officer  or  post  commander.  R.  22,  606,  Feb.,  1867;  39,  44, 
Dec,  1876. 

VII  D.  A  military  court  has  no  authority  to  assign  counsel  to  an 
accused  unprovided  with  counsel.  So  held  that  it  has  no  power 
whatever  to  compel  an  officer  to  act  as  counsel  for  an  accused.  R. 
13,  400,  July,  1874-  Nor  can  such  a  court  excuse  one  of  its  members 
to  enable  him  to  act  as  counsel  for  an  accused.  R.  35,  4^0,  July, 
1874;  P'  57,  417,  Jan.,  1893. 

1  Compare  G.  C.  M.  O.  13,  Dept.  of  the  Missouri,  1877;  do.  36,  79,  Dept.  of  the 
Platte,  1877;  do.  13,  id.,  1878;  do.  41,  id.,  1880;  do.  45,  48,  Div.  of  Pacific  and  Dept. 
of  Cal.,  1880. 

2  This  paragraph  sets  forth  the  established  practice  iu  our  service. 
^  Compare  7  Op.  Atty.  Gen.,  98. 


510  DISCIPLINE  VII  E. 

VII  E.  When  a  court-martial  desires  to  have  the  benefit  of  the 
testimony  of  a  party  who  has  not  been  introduced  as  a  witness  by  the 
prosecution  or  defense,  it  may  properly  call  upon  the  judge  advocate 
to  have  such  party  summoned,  or,  if  he  is  a  military  person,  may 
apply  to  the  convening  authority  or  post  commander  to  have  him 
ordered  before  it  to  testify,^  and  it  may  adjourn  the  trial  for  a  reason- 
able time  to  await  his  attendance.     R.  25,  678,  May,  1868. 

VII  E  1.  A  court-martial  (by  suhpcena  duces  tecum,  through  the 
judge  advocate)  may  summon  a  telegraph  operator  to  appear  before 
it  and  bring  with  him  a  certain  telegraphic  dispatch.  Held  that 
telegrams  are  not  privileged.^  P.  31,  449,  Apr.,  1889;  0.  20085, 
July  19,  1906. 

VII  F.  A  court-martial  has,  as  such,  no  authority  to  arrest,  or  to 
require  its  judge  advocate  or  other  officer  to  arrest,  a  witness  sus- 
pected of  false  swearing  upon  a  trial  which  has  been  had  before  it; 
m  such  a  case  its  proper  course  is  to  report  the  facts  to  the  convening 
authoritv  for  his  action.     R.  3,  109,  July,  1863. 

VIII  A  1.  Courts-martial  (though,  within  their  scope  and  prov- 
ince, authoritative  and  independent  tribunals)  are  bodies  of  excep- 
tional and  restricted  powers  and  jurisdiction;  their  cognizance  being 
confined  to  the  distinctive  classes  of  offenses  recognized  by  the  mili- 
tary code.^  Their  jurisdiction  is  criminal,  their  function  being  to 
award  (in  proper  cases)  punishment;  they  have  no  authority  to 
adjudge  damages  for  personal  injuries  or  private  wrongs.*  R.  27, 
454,  Jan.,  1869.  They  have  no  power  to  rescind  a  contract  or  to  pass 
upon  other  civil  rights.  They  are  called  into  existence  solely  for  the 
purpose  of  awarding  punishment  for  military  offenses.  G.  3608, 
Nov.,  1897;  11196,  Sept.,  13,  1901;  17768,  Apr.  25,  June  17,  1905. 

VIII  A  2.  A  court-martial  can  not  be  availed  of  for  the  collec- 
tion of  the  private  debts  of  officers;  it  can  take  no  notice  of  their 
financial  obligations  except  as  evidence  of  fraud  or  dishonor  when 
admissible  in  proof  of  an  offense  under  the  Articles  of  War.  P.  35, 
463,  Oct.,  1889. 

^  It  has  not  been  the  practice  in  this  country  for  the  convening  authority  to  detail 
an  officer  to  attend  a  military  court  in  a  ministerial  capacity — to  summon  witnesses, 
enforce  the  attendance  of  the  accused,  etc.  In  the  special  case,  indeed,  of  the  persons 
charged  with  complicity  in  the  assassination  of  President  Lincoln,  and  tried  by  mili- 
tary commission,  it  was  ordered  by  the  President,  May  1,  1865,  as  follows:  "That 
Bvt.  Maj.  Gen.  Hartranft  be  assigned  to  duty  as  special  provost  marshal  general  for 
the  purposes  of  said  trial,  and  attendance  upon  said  commission,  and  the  execution 
of  its  mandates." 

^  See  Wigmore  on  Evidence,  Vol.  IV,  section  2287. 

^  Ex  parte  Watkins,  3  Pet.,  193,  209;  Barrett  v.  Crane,  16  Vt.,  246;  Brooks  v. 
Adams,  11  Pick.,  440;  Brooks  v.  Davis,  17  id.,  148;  Brooks  v.  Daniels,  22  id.,  498; 
Washburn  v.  Phillips,  2  Met.,  296;  Smith  v.  Shaw,  12  Johns.,  257;  Mills  v.  Martin,  19 
id.,  7;  In  matter  of  Wright,  34  How.  Pr.,  221;  Duflield  v.  Smith,  3  Sergt.  &  Pawle, 
590;  Bell  v.  Tooley,  12  Iredell  605;  State  v.  Stevens,  2  McCord,  32;  Miller  v.  Seare, 
2  W.  Black.,  1141;  6  Op.  Atty.  Gen.,  425.  "A  court-martial  is  a  court  of  limited  and 
special  jurisdiction.  It  is  called  into  existence  by  force  of  express  statute  law,  for  a 
special  purpose,  and  to  perform  a  particular  duty;  and  when  the  object  of  its  creation 
is  accomplished,  it  ceases  to  exist.  *  *  *  jf^  in  its  proceedings  or  sentence,  it 
transcends  the  limit  of  its  jurisdiction,  the  members  of  the  court,  and  the  officer  who 
executes  its  sentence,  are  trespassers,  and  as  such  are  answerable  to  the  party  injured, 
in  damages  in  the  courts."  3  Greenl.  Ev.,  sec,  470.  See  also  McNaghten,  pp.  175, 
176. 

4  See  2  Greenl.  Ev.,  sees.  471,  476;  United  States  v.  Clark,  6  Otto,  40;  Warden 
V.  Bailey,  4  Taunt,,  78. 


DISCIPLINE   VIII   B.  511 

VIII  B.  The  jurisdiction  of  courts-martial  is  nonterritorial.  In 
a  case  of  an  officer  wlio  exliibited  himself  in  a  drunken  condition  at 
a  public  ball  in  Mexico,  held  that  his  offense  was  cognizable  by  a 
court-martial  of  the  United  States,  subsequently  convened  in  Texas 
by  the  department  commander.  This  for  the  reason  that  the  mili- 
tary jurisdiction  does  not  recognize  territoriality  as  an  essential  ele- 
ment of  military  offenses  but  extends  to  tlie  same  wherever  commit- 
ted, a  principle  which  is  amply  confirmed  by  the  comprehensive  pro- 
vision of  the  sixty-fourth  article  of  war.*  K.  11,  351,  Dec,  1864;  P' 
48,  52,  Jan.,  1891;  64,64,  Feb.,  28,  1894;  C.  13517,  Aug.  14,  1903, 

VIII  C.  As  the  origin  and  authority  of  the  court-martial  are  stat- 
utory, held  that  the  statutes  must  be  closely  followed  and  no  pre- 
sumption can  be  made  in  favor  of  the  court's  jurisdiction.  R,  56, 
486,  Mar.  31,  1888. 

VIII  D  1 .  A  soldier,  provided  he  has  not  been  in  fact  discharged, 
may  be  brought  to  trial  by  court-martial  after  the  term  of  service  for 
winch  he  enlisted  has  expired,  provided,  before  such  expiration,  pro- 
ceedings with  a  view  to  trial  have  been  duly  commenced  against  him 
by  arrest  or  service  of  formal  charges.^  By  such  arrest  or  service  the 
mihtarv  jurisdiction  attaches,  and,  once  attached,  trial  by  court- 
martial,  and  punishment,  upon  conviction,  may  legallv  ensue,  though 
the  soldier's  term  of  enlistment  may  in  fact  expire  before  the  trial  be 
entered  upon.  In  the  leading  case  on  this  point  of  a  seaman  in  the 
navy  (In  re  Walker,  3  American  Jurist,  281),  the  Supreme  Court  of 
Massachusetts  held  ^  (Jan.  25,  1830)  as  follows:  ''In  this  case  the 
petitioner  was  arrested,  or  put  in  confinement,  and  charges  were  pre- 
ferred against  him  to  the  Secretary  of  the  Navy  before  the  expira- 
tion of  the  time  of  his  enlistment;  and  this  was  clearly  a  sufficient 
commencement  of  the  prosecution  to  authorize  a  court-martial  to 

Eroceed  to  trial  and  sentence,  notwithstanding  the  time  of  service 
ad  expired  before  the  court-martial  had  been  convened."  So  held, 
in  a  case  of  a  soldier  of  the  Regular  Army,  arrested  on  the  day  before 
the  expiration  of  his  term  of  enlistment,  with  a  view  to  trial  for  a 
military  offense  by  court-martial,  that  the  jurisdiction  of  the  court 
had  duly  attached,  and  that  his  trial  might  legally  be  proceeded  with. 
R.  26,  512,  Apr.,  1868.  And  similarly  held  in  repeated  cases  of  sol- 
diers and  officers  of  regular  and  volunteer  regiments.  R.  5,  313, 
Nov.,  1863;  7,  24,  July,  1864;  12,  352,  Feb.,  1865;  14,  229,  Mar., 
1865;  16,  562,  Sept,  1865;  27,  599,  Apr.,  1869;  O.  2011,  Jan.,  1896; 
13016,  July  24,  1902;  15133,  Aug.  21,  1903;  17022,  Oct.  17,  1904; 
17380,  Jan.  16,  1905. 

VIII  D  2.  The  discharge  of  a  soldier  not  taking  effect  until  notice 
thereof,  actual  or  constructive,  held  that  a  soldier  who  committed  a 
military  offense  on  the  day  on  which  he  was  to  be  dishonorably  dis- 
charged under  sentence  but  before  the  discharge  was  delivered  to 
him  (or  to  the  officer  in  charge  of  the  prision  at  wlich  he  was  also 
to  be  confined  under  the  same  sentence)  was  amenable  to  the  mili- 
tary jurisdiction  for  the  trial  and  punishment  of  such  offense  as 
being  still  in  the  mifitary  service.     P.  27,  383,  Oct.,  1888. 

^  See  G.  C.  M.  O.  11,  Dept.  Texas,  1894. 
2  See  G.  C.  M.  O.  16,  War  Dept.,  1871. 

'  And  see  Judge  Story's  charge  to  the  jury  in  United  States  v.  Travers,  2  Wheeler 
Cr.  C,  490,  509;    In  the  matter  of  Dew,  25  L.  R.,  540;  In  re  Bird,  2  Sawyer,  33, 


512  DISCIPLINE   VIII   D   3.  ^ 

VIII  D  3.  A  military  prosecution  in  the  case  of  a  deserter  has  been 
instituted  when  he  is  confined  under  a  charge  of  desertion  and,  in 
case  of  civil  criminal  proceedings,  priority  in  prosecution  would  relate 
to  that  date.     C.  U0J,.2,  Bee.  5,  1904. 

VIII  D  4.  A  soldier  committed  a  murderous  assault  on  his  superior 
officer  on  a  military  reservation  in  Oklahoma  Territory ;  Jield  that  he  is 
not  triable  by  a  court  of  the  United  States  having  criminal  jurisdiction, 
as  no  punishment  is  prescribed.  (See  sees.  5339-5342  R.  S.  and  U.  S. 
V.  Williams.  2  Fed.  Rep.,  61.)  The  offense  is  triable  hj  the  criminal 
courts  of  the  Territory  of  Oklahoma,  and  the  offender  is  also  triable 
by  a  general  court-martial  for  striking  his  superior  officer  in  violation 
of  the  twenty-first  article  of  war,  or  for  assault  and  battery  in  viola- 
tion of  the  sixty-second  article  of  war,  and  upon  aband.omng  the 
prosecution  instituted  in  the  United  States  courts,  the  jurisdiction  of 
a  general  court-martial  will  attach.^     C.  20902,  Jan.  10,  1909. 

VIII  E.  Double  jeopardy.  (See  One  hundred  and  second  article  of 
war.) 

VIII  F  1.  Such  loose  and  indefinite  forms  of  charge  as  ''fraud,'' 
*'worthlessness,"  ''inefficiency,"  "habitual  drunkenness,"  and  the 
like,  will  be  avoided  by  good  pleaders.  Such  charges,  however,  in  con- 
nection with  specifications  setting  forth  actual  military  neglects  or 
disorders  (not  properly  chargeable  under  specific  articles)  may  be 
sustained  as  equivalent  to  charges  of  "conduct  to  the  prejudice  of 
good  order  and  mihtary  discipline."  R.  19,  280,  Bee,  1865;  28,  253, 
Bee,  1868. 

VIII  F  2.  Where  a  specific  offense  is  charged  (i.  e.,  an  offense  made 
punishable  by  an  article  other  than  the  general — sixty-second — 
article),  and  the  specification  does  not  state  facts  constituting  such 
specific  offense,  the  pleading  will  be  insufficient  as  a  pleading  of  that 
offense.  Legal  effect  may,  however,  be  given  to  a  pleading  if  the 
charge  and  specification  taken  together  amount  to  an  allegation  of 
an  offense  cognizable  by  a  court-martial  under  article  62.  And  in  all 
cases — whatever  be  the  form  of  the  charge  or  specification — if  the 
two  are  not  inconsistent,  and,  taken  together,  make  out  an  averment 
of  a  neglect  or  disorder  punishable  under  this  general  article,  the 
pleading  will  be  sufficient  m  law  and  will  constitute  a  legal  basis  for  a 
conviction  and  sentence.  R.  11,  491,  Mar.,  1865;  15,  680,  Oct.,  1865; 
16,  551,  Sept.,  1865. 

VIII  G  1  a.  But  an  arrest,  though  an  almost  invariable,  is  not  an 
essential  prehminary  to  a  military  trial;  to  give  the  court  jurisdiction 
it  is  not  necessary  that  the  accused  should  have  been  arrested;  it  is 
sufficient  if  he  voluntarily,  or  in  obiedience  to  an  order  directing  him 
to  do  so,  appears  and  suhmits  himself  to  trial.  So,  neither  the  fact 
that  an  accused  has  not  been  formally  arrested,  or  arrested  at  all,  nor 
the  fact  that,  having  been  once  arrested  and  released  from  arrest,  he 
has  not  been  rearrested  before  trial,  can  be  pleaded  in  bar  of  trial  or 
constitute  any  ground  of  exception  to  the  validity  of  the  proceedings 
or  sentence.  R.  2,  77,  Mar.  13, 1863;  17, 419,  Oct.,  1865;  19, 419,  Feb. 
15,  1866;  28,  27,  July,  1868;  29,  470,  Nov.  27,  1869;  35,  142,  Jan.  28, 
1874;  C.  8982,  Sept.  17,  1900. 

VIII  Gib.  Persons  in  the  mihtary  service  are  amenable  to  the 
jurisdiction  of  courts-martial  for  military  offenses  committed  by  them 


'  Case  of  Corp.  Edward  L.  Knowles  for  assault  on  Capt.  Macklin,  tried  and  convicted 
by  general  court-martial. 


I 


DISCIPLINE   VIII   G  1   C.  513 

while  in  arrest  or  confinement  awaiting  trial  by  court-martial.  P.  33, 
335,  June,  1889. 

VIII  G  1  c.  A  suspension  from  rank  does  not  affect  the  right  of 
the  officer  to  his  office.  He  retains  the  same  as  before,  and,  as  an 
officer,  remains  subject  as  before  to  mihtary  control  as  well  as  to  the 
jurisdiction  of  a  court-martial  for  any  military  offense  committed 
pending  the  term  of  suspension.^  R.  30,  157,  Mar.,  1870;  37,  536, 
May,  1876;  38,  221,  Aug.,  1876;  39,  U6,  Feb.,  1878;  C.  17277,  Dec. 
15,  1904. 

VIII  G  1  c  (1).  The  status  of  an  oflicer  under  suspension  is  the 
same  whether  such  suspension  has  been  imposed  directly  by  sentence 
or  by  way  of  commutation  of  a  more  severe  punishment.  Thus  where 
a  sentence  of  dismissal  was  commuted  to  suspension  from  rank  on  half 
pay  for  one  year,  held  that  the  oflicer,  while  forfeiting  the  rights  and 
privileges  of  rank  and  command  during  such  term,  was  yet  amenable 
to  trial  by  court-martial  for  a  military  offense  committed  pending  the 
same.     B.  38,  221,  Jan.,  1877, 

VIII  G  2  a.  By  the  sixth  amendment  of  the  Constitution, 
civilians  are  guaranteed  the  right  of  trial  by  jury  '4n  all  criminal 
prosecutions."  Thus — in  time  of  peace — a  court-martial  can  not 
assume  jurisdiction  of  an  offense  committed  by  a  civilian  without  a 
violation  of  the  Constitution.  It  is  only  under  the  exceptional  cir- 
cumstances of  a  time  of  war  that  civilians  may,  in  certain  situations, 
become  amenable  to  trial  by  court-martial.^  R.  19, 475,  Mar.,  1866; 
38,  641,  June,  1867;  C.  17901,  Apr.  27,  1905. 

VIII  G  2  a.  (1).  Held  that  any  statute  which  attempts  to  give 
jurisdiction  over  civihans,  in  time  of  peace,  to  military  courts  is 
unconstitutional.  R.  42,  250,  Apr.  1879;  C.  20120,  July  31,  1906; 
17901,  Apr.  27,1905. 

VIII  G  2  a.  (2).  In  order  to  become  amenable  to  the  mihtary  juris- 
diction, an  officer  or  soldier  must  have  been  legally  and  fully  admitted 
into  the  mihtary  service  of  the  United  States.  Thus,  held  that  an 
officer  of  State  volunteers  appointed  by  a  governor  of  a  State,  but  not 
yet  mustered  into  the  United  States  service,  was  not  amenable  to  the 
jurisdiction  of  a  court-martial  of  the  United  States  for  an  offense 
committed  while  engaged  in  recruiting  service  under  the  authority  of 
the  governor.     R.  12,  475,  July,  1865;  C.^  4^94,  June  8,  1898. 

VIII  G  2  a.  (3) .  Held  that  a  court-martial  would  have  no  jurisdic- 
tion over  a  civilian  who  in  time  of  peace  had  assaulted  the  com- 
mander in  chief  or  any  other  high  official  of  the  Army.  Held  further, 
that  such  jurisdiction  is  exercisable  in  time  of  peace  only  over  those 
who  have  subjected  themselves  thereto  by  entering  the  Army. 
C.  11210,  Sept.  10,  1901. 

VIII  G  2  b.  The  act  of  June  18,  1898  (30  Stat.  483),  gave  jurisdic- 
tion to  general  courts-martial  over  offenses  committed  by  general 

1  See  5  Op.  Atty.  Gen.,  740;  6  id.,  715. 

^  See,  in  support  of  this  view,  Ex  parte  Milli^an,  4  Wallace,  121-123;  Jones  v. 
Seward,  40  Barb.,  563;  In  matter  of  Martin,  45  id.,  145;  Smith  v.  Shaw,  12  Johns., 
257,  265;  In  matter  of  Stacy,  10  id.,  332;  Mills  v.  Martin,  19  id.,  22;  Johnson  v. 
Jones,  44  Ills.,  142,  155;  Griffin  v.  Wilcox,  21  Ind.,  386;  In  re  Kemp,  16  Wis.,  382; 
Ex  parte  McRoberts,  16  Iowa,  605;  Antrim's  case,  5  Philad.,  288;  3  Op.  Atty.  Gen., 
690;  13  id.,  63. 

A  civilian  brought  to  trial  before  a  court-martial,  can  not,  by  a  plea  of  guilty  or 
other  form  of  legal  assent,  confer  jurisdiction  upon  the  court  where  no  jurisdiction 
exists  in  law.    Compare  People  v.  Campbell,  4  Parker,  386;  Shoemaker  v.  Nesbit,  2 
Rawle,  201;  Moore  v.  Houston,  3  Sergt.  &  Rawle,  190;  Duffield  v.  Smith,  id.,  599. 
31106°— 12 33 


514  DISCIPLINE  VIII   H   1. 

prisoners  during  their  confinement  as  such.  Held  that  this  act  was 
not  intended  to  make  any  other  change  in  existing  law  and  should 
not  be  so  construed.  G.  5589,  Bee,  1898;  10003,  Apr.  25,  1901; 
13926,  Jan.  12,  1903;  16220,  Apr.  23,  1904. 

VIII  H  1 .  It  can  not  affect  the  authority  of  a  court-martial  to  take 
cognizance  of  the  miUtary  offense  involved  in  an  injury  committed 
by  a  soldier  against  an  officer,  that,  before  the  trial,  the  latter  has 
resigned  or  been  otherwise  separated  from  the  Army.  R.  32,  623, 
May,  1872. 

VIII  H  2.  The  accused  has  a  right  to  be  present  during  all  the 
material  proceedings  of  his  trial.  Held,  however,  that  he  may  waive 
the  right  to  be  present,  and  if  he  does  so,  the  vahdity  of  the  proceed- 
ings is  not  affected.i  R.  24,  488,  A]^r.,  1867.  Held  further,  that 
where  an  accused  had  thus  absented  himself,  the  court  had  jurisdic- 
tion to  continue  the  proceedings  and  arrive  at  a  finding  and  sentence.^ 
R.  11,  260  and  295,  Bee.  1864;  21,  169,  Jan.  1866;  C.  14767,  June  13, 
1903;  Jan.  4  and  Fel.  18,  1904,  and  Feb.  6,  1906;  23941,^  Mar.  1, 
1909.  Held  further,  in  such  a  case  that  if  the  accused  has  counsel, 
the  court  may  in  its  discretion  allow  such  counsel  to  continue  the 
presentation  of  the  case,  including  the  introduction  of  evidence  and 
the  presentation  of  an  argument.  R.  19,  487,  Mar.,  1866;  C.  14767, 
June  13,  1903;  21787,  July  16,  1907;  23941,  Mar.  1,  1909. 

VIII  H  3.  When  an  officer  or  enlisted  man  has  been  arraigned 
before  a  dvly  constituted  court-martial  for  an  offense  legally  triable 
by  it,  the  jurisdiction  thus  attached  can  not  be  set  aside  by  a  process 
of  a  State  court;  the  jurisdiction  of  the  latter  being  for  the  time 
suspended.  The  offender  may,  of  course,  be  voluntarily  surrendered 
by  the  United  States.*    P.  8,  484,  June,  1886. 

VIII I  1 .  An  officer  or  soldier  (except  as  otherwise  provided  in  the 
sixtieth  article)  ceases  to  be  amenable  to  the  military  jurisdiction,  for 
offenses  committed  while  -in  the  military  service,  after  he  has  been 
separated  therefrom  by  resignation,  dismissal,  being  dropped  for 
desertion,  muster  out,  discharge,  etc.,  and  has  thus  become  a  civilian.^ 
R.  1,  395,  Nov.,  1862;  2,  49,  Mar.,  1863;  12,  476,  July,  1865;  13, 
108,  Bee,  1864;  19,  64  and  71,  Oct.,  1865;  21,  37,  Nov.,  1865;  31,  34 
and  48,  Nov.,  1870,  and  571,  Aug.,  1871;  33,  354,  Sept.,  1872;  34,  406 
and  422,  Aug.,  1873;  35,  649,  Nov.,  1874;  4^,  ^13,  June,  1879;  50,  634, 
Aug.,  1886;  C.  14389,  Aug.  13,  1903. 

^  12  Cyc.  527  and  authorities  cited. 

2  See  Fight  v.  The  State,  7  Ohio,  180;  McCorkle  v.  The  State,  14  Ind.,  39;  State  v. 
Wamire,  16  Ind.,  357;  U.  S.  v.  Longhory,  13  Blatch.,  267  (Fed.  Cas.  15631);  State  v. 
Peacock,  50  N.  J.  Law  34;  State  v.  Commonwealth,  2  Ky,  Law  Rep.,  305;  Common- 
wealth V.  Fred  M.  Smith  et  al,  163  Mass.,  411. 

3  In  this  case  the  accused  officer  escaped  during  the  trial  and  went  outside  the 
limits  of  the  United  States.  The  court  proceeded  with  the  trial  and  sentenced  the 
officer  to  dismissal  and  confinement  at  hard  labor  in  a  penitentiary  for  five  years. 
The  sentence  was  approved  and  confirmed  by  the  President  and  ordered  carried  into 
execution,  and  the  proceedings  were  published  in  G.  O.  No.  45,  War  Department, 
1909,  and  a  penitentiary  designated  as  the  place  of  confinement. 

^  6  Op.  Atty.  Gen.,  423,  Ex  parte  McRoberts,  16  Iowa,  696. 

^  See  this  principle  repeated  and  illustrated  in  G.  C.  M.  O.  4, 16,  War  Dept.,  1871; 
G.  O.  90,  Dept.  of  Pennsylvania,  1865;  do.  43,  Middle  Dept.,  1865;  do.  22,  Dept.  of 
the  Missouri,  1866. 

See  Parker  v.  Clive,  4  Burrow,  2419  (dated  1779),  that  officers  of  the  (British)  army, 
"after  resigning  their  commissions,  cease  to  be  objects  of  military  jurisdiction."  The 
Sackville  case  is  not  a  precedent  either  in  England  or  this  country. 


DISCIPLINE  VIII  I  1  a.  515 

VIII I  1  a.  A  person  who,  by  reason  of  acceptance  of  resignation, 
dismissal,  discharge,  etc.,  has  become  wholly  detached  from  the  mili- 
tary service,  can  not  be  made  hable  to  trial  by  court-martial  for 
offenses  committed  while  in  the  service  on  the  ground  that  such 
offenses  were  not  discovered  till  after  he  had  left  the  army.  R.  87, 
374,  Mar.,  1876. 

VIII  lib.  The  returning  by  a  dismissed,  etc.,  officer  or  soldier  to 
the  service  does  not  revive  a  jurisdiction  for  offenses  committed 
while  he  was  in  the  service  which  had  lapsed  upon  his  being  separated 
from  it.i  R.  6,  314,  Nov.,  1863;  35,  649,  Nov.,  1874;  50,  501,  July, 
and  634,  ^ug.,  1886;  C.  22840,  Mar.  4,  1908. 

VIII  lie.  An  honorable  discharge  releases  from  and  marks  the 
termination  of  the  particular  contract  and  term  of  enlistment  to 
which  it  relates  only,  and  does  not  therefore  relieve  the  soldier  from 
the  consequences  of  a  desertion  committed  during  a  prior  enlistment. 
P.  49,  442,  Oct.,  1891;  53,  179,  Apr.,  1892;  59,  86,  Apr.,  1893.  Simi- 
larly held  with  respect  to  a  discharge  without  honor.  C.  2115,  Mar., 
1896.  These  discliarges  release  the  soldier  from  amenability  for  all 
offenses  charged  agamst  him  within  the  particular  term  to  which 
they  relate,  including  that  of  desertion,  except  as  provided  in  the 
sixtieth  article  of  war.  C.  2041,  May,  1896'.  But  a  dishonorable 
discharge  (i.  e.,  by  sentence)  does  not  relate  to  any  particular  contract 
or  term  of  enlistment ;  it  is  a  discharge  from  the  military  service  as  a 
punishment — a  complete  expulsion  from  the  Army — and  covers  all 
unexpired  enlistments.  A  soldier  thus  dishonorably  discharged  can 
not  be  made  amenable  for  a  desertion  or  other  military  offense  com- 
mitted under  a  prior  enlistment,  except  as  provided  in  the  sixtieth 
article  of  war.  Nor  would  a  subsequent  enlistment  after  such  dis- 
honorable discharge  operate  to  revive  the  amenability  of  the  soldier 
for  such  offenses.  P.  53,  179,  supra;  55,  165,  Aug.,  1892;  59,  55, 
Apr.,  1893;  C.  7614,  Jan.,  1900. 

VIII  lid.  The  retention  of  military  control  over  a  dishonorably 
discharged  soldier  for  the  purpose  of  execution  of  sentence  does  not 
confer  military  jurisdiction  over  offenses  that  may  have  been  com- 
mitted by  him  previous  to  his  separation  from  the  service,  as  he  is 
held  under  control  as  a  general  prisoner,  not  as  a  soldier.  R.  31 ,  34, 
Nov.,  1870;  32,  190,  Dec,  1871;  33,  354,  Sept.,  1872;  41,  228,  May, 
1878;  C.  7614,  Jan.,  1900;  8051,  Apr.  19,  1900;  9406,  Dec.  20, 1900; 
10003,  Apr.  25,  1901;  13926,  Jan.  12,  1903;  17857,  Apr.  17,  1905. 
Held,  that  the  act  of  June  18,  1898  (30  Stat.,  483),  which  conferred 
military  jurisdiction  over  general  prisoners,  did  not  confer  upon 
courts-martial  jurisdiction  as  to  offenses  committed  by  such  men  pre- 
vious to  their  dishonorable  discharge.  C.  7762,  Mar.,  1900;  8051, 
Apr.,  1900;  9406,  Dec,  1900. 

VIII I  2.  On  the  question  as  to  whether  a  commissioned  officer 
could  be  tried  for  misconduct  as  a  cadet,  held,  that  there  is  ground 
for  the  view  that  a  prosecution  may  be  instituted  against  an  officer 
for  an  offense  committed  while  a  cadet,  although  no  precedent  exists 
in  the  military  service  for  such  prosecution.  Cadets  are  not  discharged 
upon  graduation,  but  may  be  promoted  second  lieutenants;  there 

^  It  is  to  be  understood  that  the  general  rule  of  the  nonamenability  to  military  trial 
of  officers  and  soldiers  after  discharge,  dismissal,  etc.,  for  offenses  committed  prior 
thereto  is  subject  to  a  specific  statutory  exception,  viz,  that  provided  for  in  the  con- 
cluding provision  of  the  sixtieth  article. 


516  DISCIPLINE   IX  A. 

would,  therefore,  appear  to  be  no  hiatus  in  the  mihtary  status  of  a 
man  between  the  time  he  serves  as  a  cadet  at  the  Military  Academy 
and  the  time  when  he  serves  under  a  commission.  C.  22475,  Mar.  2, 
1907. 

IX  A.  A  court-martial  should  in  general  be  left  to  determine  its 
own  course  of  procedure,  except  where  the  same  is  defined  by  law, 
regulation,  or  usage.  It  would  be  unwarranted  by  usage  to  require 
in  orders  that  a  court-martial  shall  adopt  a  certain  procedure  in  any 
case  or  class  of  cases  as  to  a  matter  properly  within  its  discretion. 
Thus  a  commander  could  not  properly  order  that  courts-martial  con- 
vened by  him  should  take  testimony  in  cases  in  which  the  accused 
pleaded  guilty,  though  he  might  properly  recommend  their  doing 
so.     R.  34,  138,  Feb.,  1873. 

IX  B  1 .  There  is  no  law  prohibiting  a  court-martial  of  the  United 
States  from  sitting  on  Sunday,  and  the  fact  that  a  sentence  of  such 
a  court  is  adjudged  on  that  day  can  affect  in  no  manner  its  validity 
in  law.  R.  39,  321,  627,  Nov.,  1877,  and  Aug.,  1878;  C.  2965, 
Feh.,  1897;  15591,  Dec.  9,1903. 

IX  C.  A  court-martial  is  authorized,  in  its  discretion,  to  sit  with 
doors  closed  to  the  pubhc.  Except,  however,  when  temporarily 
closed  for  deliberation,  courts-martial  in  this  country  are  almost 
invariably  open  to  the  public  during  a  trial.  R.  29,  34,  June,  1869. 
But  in  a  particular  case  where  the  offenses  charged  were  of  a  scan- 
dalous nature,  it  was  recommended  that  the  court  be  directed  to  sit 
with  doors  closed  to  the  pubhc.  C.  1637,  Aug.,  1895;  G.  G.  M. 
Record  No.  55974. 

IX  D.  A  court-martial,  after  having  entered  upon  a  trial  which  has 
to  be  suspended  on  account  of  the  absence  of  material  witnesses,  or 
for  other  cause,  is  authorized,  in  its  discretion,  to  take  up  a  new  case 
not  likely  to  involve  an  extended  investigation,  and  proceed  with  it 
to  its  termination  before  resuming  the  'trial  of  the  first  case.  R.  3, 
281,  Aug.,  1863;  9,  650,  Sept.,  1864;  ^Q,  548,  May,  1868. 

IX  E  1 .  Where  the  act  committed  involves  several  distinct  offenses, 
the  accused  may  properly  be  arraigned  upon  the  same  number  of 
separate  charges.     R.  30,  489,  July,  1870. 

IX  E  2.  A  court-martial  is  authorized,  in  any  case,  in  its  discretion, 
to  permit  an  accused  to  withdraw  a  plea  of  not  guilty,  and  substitute 
one  of  guilty,  and  vice  versa,  or  to  withdraw  either  of  these  general 
pleas  and  suDstitute  a  special  plea.  And  wherever  the  accused  apphes 
to  be  allowed  to  change  or  modify  his  plea,  the  court  should  in  gen- 
eral consent  provided  the  appHcation  is  made  in  good  faith  and  not 
for  the  purpose  of  delay,  ana  to  grant  it  will  not  result  in  unreason- 
ably protracting  the  investigation.    R.  30,  672,  Oct.,  1870. 

IX  E  3.  Facts  and  circumstances  wliich  are  properly  matters  of 
evidence  are  not  legitimate  subjects  of  pleas;  as,  for  example,  cir- 
cumstances going  to  extenuate  the  offense.  Thus  held  that  ffood 
conduct  of  the  accused  in  battle  subsequent  to  the  commission  or  the 
offense  charged  could  not  properly  be  presented  in  the  form  of  a  plea. 
R.  6,  79,  Apr.,  186 4.  So  held  that  the  fact  that  the  charge  was  pre- 
ferred through  personal  hostility  to  the  accused  was  not  matter  for 
plea,  but,  if  desired  to  be  taken  advantage  of,  should  be  offered  in 
evidence.    R.  34,  554,  Oct.,  1873. 

IX  E  4.  Where  an  accused  declined  to  plead  on  the  ground  that  he 
was  so  much  under  the  influence  of  liquor  at  the  time  of  the  acts 


DISCIPLINE  IX  E  5  a.  517 

charged  that  he  could  not  remember  what  occurred,  lield  that  the 
court  properly  directed  a  plea  of  "not  guilty"  to  be  entered.  R.  4^, 
645,  Dec,  1885. 

IX  E  5  a.  Wliile  it  can  not  properly  be  ordered  by  a  commander 
that  courts-martial  convened  by  him  shall  not  receive  pleas  of  guilty, 
or  shall  take  evidence  on  the  merits  notwithstanding  pleas  of  guilty 
are  interposed  by  the  accused,  it  is  yet  proper,  and  m  general  desir- 
able, particularly  in  cases  of  enUsted  men,  and  especially  where  the 
specifications  do  not  fully  set  forth  the  facts  of  the  case,  that  the  prose- 
cution sliould  be  instructed  or  advised  to  introduce,  with  the  consent 
of  the  court,  evidence  of  the  circumstances  of  the  offense,  where  the 
plea  is  guilty  equally  as  where  it  is  not  guilty.  This  for  the  reason 
that  the  court  may  be  better  enabled  correctly  to  appreciate  the 
nature  of  the  offense  committed  and  thus  to  estimate  the  measure  of 
punishment  proper  to  be  awarded;  and  further  that  the  reviewing 
authority  may  be  better  enabled  to  comprehend  the  entire  case,  and 
to  determine  whether  the  sentence  shall  oe  approved  or  disapproved 
(in  whole  or  in  part),  or  shall  be  mitigated  or  (in  whole  or  in  part) 
remitted.  Wliere  indeed  the  sentence  is  not  discretionary  with  the 
court,  the  former  reason  does  not  apply,  though  in  such  case  the  evi- 
dence may  be  desirable  as  the  basis  for  a  recommendation  by  the  mem- 
bers. But  where  the  sentence  is  mandatory,  the  latter  reason  applies 
with  the  greater  force,  since  the  mandatory  punishments  under 
Articles  of  War  are  in  general  of  the  severest  quahty,  and  the  review- 
ing officer  in  acting  upon  the  same  is  called  upon  to  exercise  an  espe- 
cially grave  discretion.  In  capital  cases  particularly,  it  is  most  impor- 
tant that  all  the  facts  of  the  case — all  circumstances  of  extenuation  as 
well  as  of  aggravation — should  be  exliibited  in  evidence.  B.  3,  6^7, 
Sept.,  1863;  6,  370,  Sept.,  1864;  ^9,  124,  July,  1869;  39,  206,  Oct, 
1877;  C.  5093,  Oct.,  1898.  In  practice,  the  absence  of  evidence  to 
illustrate  the  offense  has  been  found  peculiarly  embarrassing  in  cases 
of  deserters.  In  a  majority  of  these  cases  in  which  the  plea  is ' '  guilty," 
the  record  is  found  to  contain  no  testimony  whatever;  and  a  full  and 
intelligent  comprehension  of  the  nature  of  the  offense — ^whether 
desired  upon  the  original  review  of  the  proceedings  or  upon  a  subse- 
quent apphcation  for  remission  of  sentence — ^is  thus,  in  many  instances 
not  attainable.!    R.  27,  180,  Sept.,  1868. 

But  in  all  cases  where  evidence  is  introduced  by  the  prosecution 
after  a  plea  of  guilty,  the  accused  should  of  course  be  afforded  an 
opportunity  to  offer  rebutting  evidence,  or  evidence  as  to  character, 
should  he  desire  to  do  so.     R.  13,  423,  Feb.,  1865. 

IX  E  5  a  (1).  Wherever,  in  connection  with  the  plea  of  guilty  a 
statement  or  confession,  whether  oral  or  written,  is  interposed  by  the 
accused,  both  plea  and  statement  should  be  considered  together  by 

*  The  principle  that  in  cases  in  which  the  plea  is  guilty  the  court  should  take  tes- 
timony, where  necessary  to  the  comprehending  of  the  facts  and  the  doing  of  justice 
though  apparently  in  a  measure  lost  sight  of  at  a  later  period,  was  clearly  enunciated 
in  early  general  orders  of  the  War  Department.  Thus,  in  G.  O.  23  of  1830,  Maj. 
Gen.  Macomb  (commanding  the  Arm}^)  expresses  himself  as  follows:  *'In  every  case 
in  which  a  prisoner  pleads  guilty,  it  is  the  duty  of  the  court-martial,  notwithstand- 
ing, to  receive  and  to  report  in  its  proceedings  such  evidence  as  may  afford  a  full 
knowledge  of  the  circumstances;  it  being  essential  that  the  facts  and  particulars 
should  be  known  to  those  whose  duty  it  is  to  report  on  the  case,  or  who  have  discretion 
in  carrying  the  sentence  into  effect."  And  see  G.  O.  21,  of  1833,  to  a  similar  effect. 
See  G.  C.  M.  O.  69,  Hdqrs.  of  Army,  1877. 


518  DISCIPLINE  IX  E  5  a  (2). 

the  court ;  and  if  it  is  to  be  gathered  from  the  statement  that  evidence 
exists  in  regard  to  the  alleged  offense  which  will  constitute  a  defense 
to  the  charge,  or  relieve  the  accused  from  a  measure  of  culpability, 
the  court  will  properly  call  upon  or  permit  the  judge  advocate  to 
obtain  and  introduce  such  evidence,  if  practicable.  B.  I4,  585  and 
696,  June,  1865;  26,  562,  May,  1868;  28,  123,  Sept.,  1868;  29,  11, 
348,  June  and  Oct.,  1869,  and  658,  Feb.,  1870. 

IX  E  5  a  (2).  It  not  unfrequently  happens  upon  trials  of  enlisted 
men  that  the  accused,  in  pleading  guilty,  will  proceed  to  make  a 
statement  (oral  or  written)  to  the  court,  which  is  in  fact  inconsistent 
with  the  plea.  Thus,  in  a  case  where  the  accused,  being  evidently 
ignorant  of  the  forms  of  law,  pleaded  guilty  to  an  artificially  worded 
charge  and  specification,  and  immediately  thereupon  made  an  oral 
statement  to  the  court  of  the  particulars  of  his  conduct  setting  forth 
facts  quite  incongruous  with  his  plea,  and  no  evidence  whatever  was 
introduced  in  the  case;  held  that  the  statement,  rather  than  the  plea, 
should  be  regarded  as  the  intelhgent  act  of  the  accused,  and  that, 
upon  considering  both  together,  the  accused  should  not  be  deemed 
to  have  confessed  his  guilt  of  the  specific  charge.  B.  8,  274,  ^pr., 
1864;  17,  48,  June,  1865;  30,  33,  July,  1869.  In  such  a  case  the 
court  will  properly  counsel  the  accused  to  plead  not  guilty,  or  direct 
such  plea  to  be  entered,  and  proceed  to  a  trial  and  investigation  of 
the  merits  {B.  6,  357,  370,  Sept.,  1864) ;  the  judge  advocate  introduc- 
ing his  proof  precisely  as  under  an  ordinary  plea  of  not  guilty.  P.  61 , 
394,  Sept.,  1893. 

IX  E  5  a  (3).  In  the  interests  of  justice  and  for  the  purpose  of  fully 
informing  itseK  of  the  facts,  the  court  may,  in  its  discretion,  allow 
the  introduction,  by  either  side,  of  material  testimony  after  the  case 
has  been  formally  closed,^  but  before  a  finding  had  been  reached .  Such 
a  proceeding,  however,  must  be  of  course  exceptional,  and  a  party 
should  not  be  permitted  to  offer  testimony  at  this  stage,  unless  he 
exhibits  good  reason  for  not  having  produced  it  at  the  usual  and 
proper  time.  B.  12,  4OI,  May,  1865;  17,  398,  Oct.,  1865;  31,  35, 
Nov.,  1870. 

IX  E  5  b.  The  admission  of  evidence  after  reaching  a  finding  and 
receiving  the  evidence  of  previous  convictions  is  highly  irregular. 
So  long  as  the  proceedings  remain  in  its  possession  the  court  may 
properly  reconsider,  modify,  or  change  the  findings  and  sentence,  as 
it  sees  fit,  but  it  is  quite  irnproper  to  reopen  the  case  by  hearing  new 
evidence  after  reaching  a  finding  of  ''guilty"  or  "not  guilty."  C. 
18764,  May  5, 1906. 

IX  F  1  a.  An  individual  pardon  must  be  pleaded;  but  a  court  is 
bound  to  take  judicial  notice,  as  affecting  its  jurisdiction,  of  a  general 
pardon  or  amnesty.  Thus  where  a  court-martial  failed  to  do  so  in 
the  trial  of  a  deserter  who  had  returned  to  service  under  the  terms  of 

1  Compare  Eberhardt  v.  State,  47  Ga.,  598;  and  see  the  trial,  by  court-martial,  of 
B.  G.  Harris  (Ex.  Doc.  No.  14,  H.  R.,  39tli  Cong.,  1st  sess.,  p.  25),  where,  on  the  day 
on  which  the  accused  was  to  present  his  final  argument  to  the  court,  and  which  was 
two  days  after  the  formal  closing  of  the  case,  the  defense  was  allowed  to  introduce 
new  testimony  on  the  merits. 

It  is,  moreover,  the  duty  of  a  court-martial  to  see  that  injustice  is  not  done  the 
accused  by  the  admission  on  the  trial  of  improper  testimony  prejudicing  his  defense, 
or  unfairly  tending  to  aggravate  the  misconduct  charged.  In  the  interests  of  justice^ 
therefore,  the  courts  may  exclude  such  testimony,  although  its  admission  may  not  be 
objected  to  on  the  part  of  the  accused.     Compare  State  v.  O'Connor,  65  Missouri,  374. 


DISCIPLINE  IX  F  1  a  (l).  519 

the  amnesty  proclamation  of  March  11,  1865,  this  fact  appearing 
from  the  specification  to  the  charge  of  desertion  upon  which  he  was 
tried,  it  was  held  that  the  court  was  without  jurisdiction  of  the  offense 
and  that  the  trial  had  was  illegal.     C,  1274,  Ajpr.,  1895, 

IX  F  1  a  (1).  A  plea  of  a  restoration  to  duty  by  competent  author- 
ity without  trial,  under  the  Army  Regulations,  is  in  the  nature  of  a 
glea  of  a  constructive  pardon,  and  a  good  special  plea  in  bar  of  trial. 
\\\i  going  to  trial  on  the  general  issue  waives  it.^  R.  4^,  94,  May^ 
1885. 

IX  F  1  a  (2).  The  fact  that  a  sergeant  has  been  reduced  to  the 
ranks,  confined  in  arrest,  and  required  to  perform  work  under  the 
custody  of  a  sentinel,  though  such  a  disposition  may  be  in  excess  of 
authority,  can  not  constitute  a  legal  plea  in  bar  to  a  trial  upon  the 
charge  for  which  he  was  arrested.  Such  treatment  is  apposite  to  the 
case  only  as  entering  into  the  consideration  of  the  question  of  the 
quantum  of  punishment  upon  conviction.     B.  47,  242,  July,  1883. 

IX  F  2  a.  Objections  to  the  charges  or  specifications  in  matters  of 
form  should  be  taken  advantage  of  by  special  pleas  in  the  nature  of 
pleas  in  abatement,  or,  better,  by  motion  to  strike  out.  Such  are 
objections  to  the  specifications  as  inartificial,  indefinite,  or  redun- 
dant; or  as  misnaming  the  accused  (or  other  persons  required  to  be 
specified),  or  misdescribin^  him  as  to  his  rank  or  office;  or  as  con- 
taining insufficient  allegations  of  time  or  place,  etc.  In  such  cases 
the  objection  should  be  raised  by  a  special  plea  in  abatement,  or  by 
motion,  in  order  that  errors  capable  of  amendment  may  be  amended 
on  the  spot  by  the  judge  advocate,  and — the  plea  of  not  guilty  (or 
guilty)  being  then  made — the  trial  may  proceed  in  the  usual  manner. 
Objections  of  this  class,  not  thus  taken,  will  properly  be  considered 
as  waived  by  the  plea  of  guilty  or  not  guilty,  and  their  existence  will 
not  then  anect  the  validity  of  the  proceedings  or  sentence.  R.  5, 
577,  Dec,  1864;  7,  234,  Feb.,  1864;  9,  518,  Aug.,  1864;  15, 117,  Mar., 
1865;  24,  140,  Jan.,  1867;  25,  100,  Sept,  1867;  28,  372,  Feb.,  1869; 
30,  288,  Apr.,  1870;  34,  32,  Nov.,  1872;  35,  450,  June,  1874;  ^8,  654, 
June,  1877;^  51,  I44,  Feb.,  1887;  56,243,  May,  1888. 

Where  without  preliminary  objection  the  accused  pleads  guilty  or 
not  guilty  to  a  specification,  in  which  he  is  incorrectly  named  or 
described,  such  plea  will  be  regarded  as  an  admission  by  the  accused 
of  his  indentity  with  the  person  thus  designated,  and  he  can  not  there- 
after object  to  the  pleadings  on  account  of  misnomer  or  misdescrip- 
tion.2  R.  5,  577,  Dec,  1864;  15,  117,  Mar.,  1865;  25,  100,  Sept., 
1867;  51,  144,  Feb.,  1887:   G.  22215,  Nov.  4,  1907. 

IX  F  3  a.  An  insane  person  is  no  more  competent  as  a  witness  before 
a  court-martial  than  at  common  law.     Testimony  admitted  of  a 

^  Compare  Heard's  Criminal  Pleading,  296;  U.  S.  v.  Wilson,  7  Peters,  150. 

^  Objections  to  the  charges  and  specifications  on  account  of  matter  of  substance, — ^as 
that  thej^  do  not  contain  the  necessary  allegations,  or  otherwise  do  not  set  forth  facts 
constituting  military  offences, — should  properly  be  made  at  the  outset  of  the  pro- 
ceedings by  a  special  plea  in  the  nature  of  a  demurrer,  or  they  will  in  general  be 
regarded  as  waived. 

So,  objections  going  to  the  legal  constitution  or  composition  of  the  court,  or  to  its 
jurisdiction,  should  also  properly  be  specially  presented  when  the  accused  is  first 
called  upon  to  plead:  valid  objections  of  this  radical  character,  however,  are  not 
waived  if  the  accused,  instead  of  submitting  a  special  plea,  pleads  over  to  the  merits, 
since  consent  can  not  confer  jurisdiction  on  a  court  martial  where  none  exists  in  law. 
(See  C.  15627,  Dec.  7  1903.) 


520  DISCIPLINE   IX   G  1. 

person  shown  to  be  insane  should  be  stricken  out  on  motion  made. 
P.  50,  270,  Nov.,  1891. 

IX  G  1 .  Wliere  indications  of  insanity  are  developed  by  the  accused 
in  the  course  of  a  trial  by  court-martial,  the  court  will  properly 
suspend  proceedings  and  report  the  facts  to  the  convening  authority, 
adjourning  meanwhile  to  await  his  orders.^     R.  33,  661,  Jan.,  1873. 

IX  H  1.  The  object  of  the  legislation  excluding  the  judge  advocate 
from  closed  sessions  of  a  court-martial  is  not  only  that  there  should  be 
no  unfairness  to  the  accused,  but  that  there  should  be  no  possibility  of 
such  unfairness.  The  statute  does  not  contemplate  the  exercise  of 
any  discretion  by  the  court  in  the  matter,  nor  does  it  admit  of  any 
exception  being  made  to  the  procedure  described  and  required,  even 
though  such  exception  be  in  favor  of  the  accused.  A  strict  compUance 
with  its  requirements  is  necessary,  and  a  failure  to  comply  with  them 
would  probablj^  be  held  to  vitiate  the  proceedings. ^  Advised  there- 
fore in  the  particular  case,  that  if  the  court  had  not  arrived  at  a  find- 
ing, the  court  be  dissolved,  and  a  new  one  appointed  for  the  trial 
de  novo  of  the  accused.  C.  1637,  Oct.  1,  1895;  j^664,  July  23,  1898; 
12962,  July  11,  1902;   15746,  Mar.  18,  1904. 

IX  H  1  a.  The  act  of  July  27,  1892  (27  Stat.  278),  requiring  the 
withdrawal  of  the  judge  advocate  whenever  the  court  sits  ^'in  closed 
session,"  Tield  not  to  apply  to  a  meeting  of  the  court  to  hear  read  the 
record  of  the  findings  and  sentence,  such  proceeding  being  no  part 
of  the  trial.  P.  62,  363,  Nov.,  1893;  C.  11316,  Oct.  25,  1901;  15746, 
Nov.  25,  1904;  21294,  ^ug.  27,  1907. 

IX  H  1  b.  Held  that  a  court-martial  may  sit  in  closed  session  before 
it  has  been  sworn.     0.  5773,  Jan.  31,  1899. 

IX 1 1 .  It  has  not  unfrequently  happened  that  enlisted  men,  charged 
with  desertion,  have,  in  connection  with  a  plea  of  guilty,  made  a  state- 
ment disclaiming  having  had,  in  absenting  themselves,  any  intention 
of  abandoning  the  service,  and  stating  facts  which,  if  true,  constitute 
absence- without-leave  only.  In  such  a  case  the  accused  can  not  in 
general  fairly  be  convicted  of  desertion  in  the  absence  of  an  investiga- 
tion, and  the  court  will  properly,  therefore,  induce  him  to  change  his 
plea  to  not  guilty,  or  direct  this  plea  to  be  entered  and  take  such 
evidence  as  may  be  attainable,  to  show  what  offense  was  actually 
committed.^    R.  26,  562,  May,  1868. 

IX  I  2.  Statements  inconsistent  with  the  plea  have  not  rarely  been 
made  in  cases  like  larceny  where  several  distmct  elements  are  required 

^  See  a  case  of  this  nature,  where  this  course  was  pursued,  in  G.  C.  M,  O.  39,  Dept. 
of  the  Missouri,  1868.  As  to  the  similar  practice  of  the  civil  courts,  see  People  v.  Ah 
Ying,  42  Cal.  18;  also  Taffe  v.  State,  23  Ark.  34. 

2  So  held  in  cases  published  in  S.  O,  19,  Dept.  of  Colorado,  1896;  and  S.  O.  23,  Dept. 
of  the  East,  1896. 

^The  views  of  the  Judge  Advocate  General  have  been  adopted  in  the  general  orders 
of  the  War  Department  and  in  numerous  orders  of  the  various  military  department, 
&c.,  commands.  In  G.  C.  M.  O.  2,  War  Dept.,  1872,  the  Secretary  of  War  observes, 
in  regard  to  two  cases  of  soldiers,  as  follows:  "The  written  statements  submitted  by 
the  accused  are  contradictory  of  their  pleas  of  'guilty.'  The  court  should  have 
regarded  these  statements  as  neutralizing  the  effect  of  their  pleas,  and  should  have 
had  the  accused  instructed  as  to  their  legal  rights,  and  advised  to  change  their  pleas 
witb.  a  view  to  the  hearing  of  testimony.  It  not  unfrequently  happens  that  soldiers 
do  not  understand  the  legal  difference  between  absence-without-leave  and  desertion,  or 
are  wholly  unable  to  discriminate  as  to  the  grade  of  their  offences,  as  determined  by 
their  motives.  They  thus,  sometimes,  ignorantly  plead  guilty  and  are  sentenced  for 
crimes  of  which  they  may  be  actually  innocent.  The  proceedings,  findings,  and  sen- 
tences are  disapproved."     And  see  G.  C.  M.  O.  31,  War  Dept.,  1876. 


DISCIPLINE   IX   K   1.  521 

to  constitute  the  crime  in  law.  For  example,  a  soldier  will  plead 
guilty  to  a  charge  of  larceny,  and  thereupon  make  a  statement  dis- 
claiming the  peculiar  intent  (animus furandi)  necessary  to  the  offense, 
thus  really  admitting  only  an  unauthorized  taking.  In  such  cases  the 
court  will  properly  instruct  the  accused  that  he  should  change  his  plea 
to  not  guilty,  and,  if  he  declines  to  do  so,  will  properly  call  upon  the 
judge  advocate  to  introduce  evidence  showing  tlie  actual  offense  com- 
mitted.    R.  28,  677,  June,  1869;  29,  658,  Feb.,  1870. 

IX  K  1.  A  tie  vote  upon  any  proposition  submitted  to  the  court  is 
equivalent  to  a  vote  in  the  negative — a  majority  vote  being  necessary 
to  a  determination  in  the  affirmative — and  the  proposition  is  not 
approved.  Where  the  vote  is  a  tie  upon  an  objection  to  testimony, 
the  objection  is  not  sustained.  Where  it  is  tied  upon  a  certain  pro- 
posed finding  or  form  of  sentence,  the  same  is  not  adopted.  R.  31, 
511,  610,  July  and  Aug.,  1871;  32,  126,  Nov.,  1871;  45,  334,  June, 
1882;  C.  2003,  Jan.,  1896. 

IX  K  2.  The  'polling  of  a  court-martial,  in  the  manner  of  a  jury  or 
otherwise,  is  a  proceeding  wholly  unknown  to  military  law.  So, 
where  an  officer,  acting  as  the  counsel  of  a  soldier  on  trial  by  court- 
martial,  demanded,  on  the  court  ruling  adversely  upon  the  admission 
of  a  special  plea,  that  it  be  polled,  held  that  his  action  was  wholly 
irregular  as  well  as  disrespectful  to  the  court.*  R.  34,  4^4,  Sept., 
1873. 

IX  K  3.  Where  the  majority  of  the  members  of  a  court-martial  have 
come  to  a  decision  upon  any  question  paised  in  the  course  of  the  pro- 
ceedings, or  upon  the  finding  or  sentence,  no  individual  of  the  minority, 
whether  the  president  or  other  member,  is  entitled  to  have  a  protest 
made  by  himself  against  such  decision  entered  upon  the  record.  The 
conclusions  of  the  court  (except  in  cases  of  death  sentences,  where  a 
concurrence  of  two-thirds  is  required)  are  to  be  determined  invariably 
by  the  vote  of  the  majority  of  its  members,  and  it  is  much  less  impor- 
tant that  individual  members  should  have  an  opportunity  of  publish- 
ing their  personal  convictions,  than  that  the  action  of  the  court  should 
appear  upon  the  formal  record  as  that  of  the  aggregate  body,  and 
should  carry  weight  and  have  effect  as  such.  R.  11,  203,  Dec,  1864; 
25,  542,  May,  1868.  Nor  can  a  protest  (against  the  finding  or 
otherwise)  by  a  minority  of  the  members  be  appended  to  the  record 
on  a  separate  paper.     R.  36,  264;  Feh.,  1875. 

IX  L  1.  For  the  president  of  a  court-martial  to  assume  to  adjourn 
the  court  against  the  vote  of  the  majority  of  the  members  would  be  an 
unauthorized  act  and  a  grave  irregularity,  properly  subjecting  him  to 
a  charge  under  the   sixty-second  article.^     R.  30,  248,  Apr.,  1870. 

IX  L  2.  An  adjournment  sine  die  has  no  more  legal  effect  than  a 
simple  adjournment.^  It  does  not  dissolve  the  court,  as  a  court  has, 
in  fact,  no  power  to  terminate  its  own  existence.  R.  21,  679,  Nov., 
1866;  26,  588,  June,  1868;  42,  158,  Feb.,  1879.  After  an  adjourn- 
ment sine  die,  the  court  may  without  being  reconvened  by  the  con- 
vening authority  reassemble  and  take  up  and  try  a  case  referred  to 
it  by  the  convening  authority  precisely  as  if  it  had  not  adjourned  at 
aU.  R.  19,  628,  May,  1866;  4I,  282,  June,  1878.  It  may  also  be 
reconvened  by  the  convening  authority  after  an  adjournment  sine  die 

1  See  G.  C.  M.  O.  37,  War  Dept.,  1873. 

2  Case  of  Backenatos,  G.  O.  14,  War  Dept.,  1850. 

*  Brown  v.  Root,  Sup.  Ct.,  D.  C,  1900  (44087  Law);  and  see  23  Op.  Atty.  Gen.,  23. 


522  DISCIPLINE   IX   M. 

for  the  purpose  of  reconsideration  of  its  judgment  on  a  particular 
case  and  be  directed  to  reframe  the  sentence,  etc.^  R.  55,  208,  Dec, 
1887;  G.  5654,  July  24,  1899. 

IX  M.  Where,  indeed,  there  are  no  material  proceedings  after  the 
sentence,  the  subscription  of  the  latter  by  the  president  and  judge 
advocate  will  constitute  a  sufficient  authentication  of  the  record  as  a 
whole.  R.  19,  616,  May,  1866.  Where  the  president  or  judge 
advocate  has  been  changed  pending  the  trial,  it  is  of  course  the  last 
one,  the  one  who  was  serving  at  the  close  of  the  trial,  who  should  sign 
the  record.  R.  29,  604,  Jan.,  1875;  C.  5332,  Nov.,  1898.  A  judge 
advocate  appointed  after  the  conclusion  of  a  trial  would  not  be  com- 
petent to  authenticate  the  record  of  such  trial.     C.  5230,  Oct.,  1898. 

IX  N  1 .  Where  the  record  of  a  trial,  as  forwarded  to  the  reviewing 
authority  for  his  action,  is  deemed  by  him  to  exhibit  some  error, 
omission,  or  other  defect  in  the  proceedings  capable  of  being  supplied 
or  remedied  by  the  court;  as,  for  example,  an  inadequate,  illegal, 
or  irregular  sentence,  or  a  finding  not  authorized  by  the  evidence;  or 
an  omission  of  some  material  matter — as  a  failure  to  prefix  to  the 
record  a  copy  of  the  convening  order,  or  to  authenticate  the  proceed- 
ings by  the  signatures  of  the  president  and  judge  advocate,  or  to  enter 
the  proper  statement  as  to  the  members  present,  or  to  recite  as  to 
the  offering  to  the  accused  of  an  opportunity  to  object  to  the  same  or 
as  to  the  qualifying  of  the  court  by  the  prescribed  oaths,  or  to  fully 
record  the  plea,  finding,  or  sentence;  or  some  mere  clerical  error  in  a 
matter  of  form — the  court  m»y  and  in  general  properly  will  be  recon- 
vened by  the  order  of  the  reviewing  officer  (the  convening  authority  or 
his  successor  in  the  command)  for  the  purpose  of  correcting  the  record 
in  the  faulty  particular,  provided  a  correction  be  practicable.  In  a 
case  of  an  omission,  the  object  of  course  is  that  the  record  may  be 
made  to  conform  with  the /ad.  If  the  fact  is  that  the  proceeding, 
apparently  merely  omitted  to  be  recorded,  was  actually  not  had,  the 
proposed  correction  can  not  of  course  be  made.  There  is  no  limit  to 
the  number  of  times  that  a  court  may  be  reconvened  for  a  revision  of 
its  proceedings.  It  is  not  often,  however,  reassembled  a  second  time 
where  it  declines  on  the  first  occasion  to  make  the  correction  desired. 
R.  1,  487,  Dec,  1862;  2,  154,  Apr.,  1863;  11,  490,  Feb.,  1865;  16, 
202,  May,  1865;  28,  286,  Bee,  1868,  and  304,  Jan.,  1869;  C.  15833, 
Jan.  28,  1904. 

IX  N  2.  The  order  reassembling  the  court  will  properly  indicate 
the  particular  or  particulars  as  to  which  a  revision  or  correction  is 
desired,  or  refer  to  papers,  accompanying  it,  in  which  the  supposed 
omission  or  other  defect  is  set  forth.  R.  11,  93,  Nov.  1864-  Whether 
to  make  the  proposed  correction  will  be  in  the  discretion  of  the 
court.  The  reviewing  authority  can  not  of  course  compel  and  would 
scarcely  be  authorized  to  command  the  court  to  make  it.  R.  7,  112, 
Nov.,  1863;  24,  435,  Sept.,  1873. 

IX  N  3.  A  correction  can  be  made  only  by  a  legal  court.  At  least 
five  therefore  of  the  members  of  the  court  who  acted  upon  the  trial, 
must  be  present.  That  there  are  fewer  members  at  the  reassembling 
than  at  the  trial  is  immaterial,  provided  five  are  present.  R.  35, 
656,  Oct.,  1874.  The  judge  advocate  should  be  present.^  R.  1,  487, 
Dec,  1862. 

^  Brown  v.  Root,  cited  supra. 

2  If  the  court  closes  he  should  withdraw  (act  of  July  27,  1892,  s.  2). 


DISCIPLINE  IX   N  4.  523 

IX  N  4.  It  is  not  in  general  necessary  or  desirable  that  the  accused 
be  present  at  a  revision.  Where,  however,  any  possible  injustice  may 
result  from  his  absence,  he  should  be  reqiiired  or  permitted  to  be 

gresent,  and  with  counsel,  if  prefeiTed.  Thus,  where  the  defect  to 
e  corrected  consists  in  an  omission  properly  to  set  forth  a  special 
f)lea  made  or  objection  taken  by  the  accused,  it  may  be  desirable  that 
le  should  be  present  in  order  that  he  may  be  heard  as  to  the  proper 
form  of  the  proposed  correction.  Where  the  error  is  clerical  merely, 
or,  though  relating  to  a  material  particular,  consists  in  the  omission 
of  a  formal  statement  only,  the  presence  of  the  accused  is  not  in 
general  called  for.     R.  9,  653,  Sept.,  I864. 

IX  N  5.  It  is  now  settled  in  our  law  that  a  court  martial  is  not 
empowered,  at  this  proceeding,  to  take  or  receive  testimony.*  R, 
16,  562,  Sept.,  1865;  19,  4I,  Oct.,  1865;  42,  275,  Apr.,  1879. 

IX  N  6.  The  amendment  can  only  be  made  by  the  court  when 
duly  reconvened  for  the  purpose,  iind  when  made  must  be  the  act  of 
the  court  as  such.  A  correction  made  by  the  president  or  other  mem- 
ber, or  by  the  judge  advocate,  independently  of  the  court,  and  by 
means  of  an  erasure  or  interlineation  or  otherwise,  is  unauthorized 
and  a  grave  irregularity. ^  R.  28,  304,  Jan.,  1869.  The  correction 
must  be  wholly  made  and  recorded  in  and  by  the  formal  proceedings 
upon  the  revision.  The  record  of  the  correction,  as  thus  made,  wfll 
refer  of  course  to  the  page  or  part  of  the  record  of  the  trial  in  which 
the  omission  or  defect  occurs;  but  this  part  of  the  record  must  be 
left  precisely  as  it  stands.  The  court  is  no  more  authorized  to  correct 
the  same  by  erasure  or  interlineation  on  the  page,  or  by  the  substi- 
tution for  the  defective  portion  of  a  rewritten  corrected  statement, 
than  would  be  the  judge  advocate  or  a  member.  R.  2,  97,  Mar., 
1863;  11,  93,  Nov.,  1864;  16,  202,  May,  1865;  34,  4I6,  Aug.,  1873; 
45,  439,  Sept.,  1882. 

IX  N  6  a.  The  revision  here  contemplated  is  of  course  quite  dis- 
tinct from  the  ordinary  revision  and  correction  of  its  proceedings  by 
a  court  martial  from  day  to  day  during  a  trial  and  beroro  the  record 
is  completed.     R.  27,  581,  Mar.,  1869. 

IX  N  6  b.  Held,  that  an  indorsement  by  the  trial  judge  advocate 
can  not  be  received  in  place  of  a  regular  amendment  of  the  record  by 
the  court.     C.  4642,  Aug.  4,  1898. 

IX  N  7.  Where  the  court  has  been  dissolved,  or,  by  reason  of  any 
casualty  or  exigency  of  the  service,  can  not  practically  be  reconvened, 
there  can  of  course  be  no  correction  of  its  proceedings.  R.  31,  108, 
Dec,  1870;  C.  19854,  June  29,  1906. 

IX  O.  A  court  martial  is  not  legally  dissolved  till  officially 
informed  of  an  order,  from  competent  authority,  dissolving  it.  The 
proceedings  of  a  court  martial,  had  after  the  date  of  an  order  dis- 
solving it  but  before  the  court  has  become  officially  advised  of  such 
order,  wiU  thus  be  quite  regular  and  valid.  Where  an  order  dis- 
solving forthwith  a  court  martial  has  been  duly  officially  received 
by  the  court  and  has  thus  taken  effect,  an  order  subsequently  received 
revoking  this  order  wiU  be  entirely  futile.  It  will  not  revive  the 
court,  but  the  same,  to  be  qualihed  for  further  action,  must  be 
formally  reconvened  as  a  new  and  distinct  tribunal.  R.  4^,  160, 
Jan.,  1880;  P.  32,  29,  Apr.,  1889. 

1  See  G.  O.  47,  Hdqrs.  of  Army,  1879. 
2 See  par.  19,  S.  O.  99,  A.  G.  0.,  1900. 


524  DISCIPLINE  X  A  1. 

X  A  1.  Desertion  is  not  a  felony  and  does  not  render  a  witness 
incompetent  at  common  law  or  before  a  court-martial.  Nor  does  the 
loss  of  citizenship  upon  conviction  of  desertion,  under  sections  1996 
and  1998,  R.  S.,  have  such  effect;  the  competency  of  a  witness  not 
depending  upon  citizenship.  A  pardon  of  a  person  thus  convicted 
would  not  therefore  add  to  his  competency.  But  where  it  was  pro- 
posed to  introduce  such  a  person  as  a  material  witness  for  the  prosecu- 
tion in  an  important  case,  advised  that  it  would  be  desirable  to  remit 
the  unexecuted  portion  of  his  sentence,  if  any.     R.  51, 264,  l^ec,  1886. 

X  A  2.  The  president  or  any  member  of  a  court-martial,  as  also  the 
judge  advocate,  may  legally  give  testimony  before  the  court.  That 
the  court,  at  the  time  of  a  member's  testifying,  is  composed  of  but 
five  members  will  not  affect  the  validity  of  the  proceedmgs,  since  in 
so  testifying  he  does  not  cease  to  be  a  member.  It  is  in  general, 
however,  most  undesirable  that  the  judge  advocate,  and  stSl  more 
that  a  member,  should  appear  in  the  capacity  of  a  witness,  except 
perhaps  where  the  evidence  to  be  given  relates  simply  to  the  good 
character  or  record  of  the  accused.  R.  2,  584,  June,  1863;  7,  202, 
Feb.,  1864;  11,  299,  Dec,  1864;  4^,  472,  Jan.,  1880. 

X  A  3.  It  is  not  an  objection  to  the  competency  of  a  witness  that  he 
is  the  officer  upon  whom  will  devolve  the  duty  of  reviewing  authority 
when  the  proceedings  are  terminated.     R.  39,  518,  Apr.,  1878. 

X  A  4.  it  is  not  an  objection  to  the  competency  of  a  witness  that  his 
name  is  not  on  the  list  of  witnesses  appended  to  the  charges  when 
served.  The  prosecutor  is  not  obliged  to  furnish  any  list  of  witnesses, 
but  it  is  better  practice  to  do  so.^     R.  25,  350,  Feb.,  1868. 

X  A  5.  Where  a  court-martial  refused  to  admit  in  evidence  (as  being 
incompetent)  the  testimony  of  the  wife  of  the  prosecuting  witness, 
held  that  its  action  was  entirely  erroneous,  no  legal  objection  existing 
to  the  competency  of  such  a  person.  R.  43, 106,  Dec,  1879;  0. 17946, 
May  3,  1905;  18100,  June  5,  1905. 

X  B  1 .  It  has  been  uniformly  lield  that  the  wife  of  a  person  on  trial 
before  a  court-martial  could  not  properly  be  admitted  as  a  -Witness  for 
or  against  him;^  and  the  statute  authorizing  accused  parties  to  testify 
does  not  affect  this  rule.     R.,  30,  672,  Oct.,  1870;  47,  521,  Sept,  1884. 

X  B  1  a.  A  wife  is  not  a  competent  witness  to  prove  a  charge  of 
failing  to  support  her,  for  which  ner  husband  is  on  trial.^  R.  47,  521, 
Sept.,  1884. 

X  B  2.  A  person  who  is  insane  at  the  time  is  incompetent  as  a  wit- 
ness. An  objection,  however,  to  a  witness  on  account  of  alleged 
insanity  will  not  properly  be  allowed,  unless  sustained  by  clear  proof, 
a  man  being  always  presumed  to  be  sane  till  proven  to  be  otherwise. 
R.  33,  91,  June,  1872. 

^  When  the  list  is  furnished,  the  prosecution  is  not  obliged  to  confine  itself  to  the 
witnesses  specified.  The  fact  that  material  testimony  is  given  by  an  unexpected 
witness  may  however  constitute  ground  for  an  application  by  the  accused  (under 
art.  93)  for  further  time  for  the  preparation  of  his  defense. 

2  Nor  will  the  testimony  of  the  wife  of  an  accused  be  admissible  in  favor  of  or  against 
a  party  jointly  charged  with  him,  where  her  testimony  will  be  material  to  the  merits 
of  the  question  of  the  guilt  or  innocence  of  her  husband .  See  Territory  v .  Paul ,  2  Mont . 
314. 

^The  common  law  rule  is  that,  except  in  the  case  of  violence  upon  her  person,  the 
wife's  testimony  can  not  be  received  to  criminate  her  husband,  or  to  disclose  confiden- 
tial communications.  Bassett  ?;.  U.  S.  (137  U.  S.,  496);  In  re  Mayfield  (141  U.  S.,  113); 
Hopkins  t;.  Grimshaw  (165  U.  S.,  349);  Stein  v.  Bowman  (13  Peters.,  209). 


DISCIPLINE  X  B   3.  525 

X  B  3.  Where  a  conviction  of  rape  rested  mainly  on  the  testimony 
of  the  victim,  a  child  of  8  years  of  age,  lield  that  the  competency  of 
the  witness  was  doubtful,  and  that  the  trial  should  have  been  sus- 
suspended  and  the  child  instructed.^     R.  50,  37,  Feb.,  1886. 

X  C  1 .  The  rules  governing  the  competency  of  witnesses  before 
the  criminal  courts  of  the  United  States  and  the  States  are,  where 
apposite,  generally  (though  not  always  necessarily)  followed  in  the 
practice  of  courts-martial.  R.  29,  A80,  Dec,  1869;  SO,  672.  Oct .  1870; 
4^,  74,  Dec,  1878. 

X  D.  Except  where  their  testimony  will  be  merely  cumulative, 
and  will  clearly  add  nothing  whatever  to  the  strength  of  the  defense 
the  accused  is  in  general  entitled  to  have  any  and  all  material  wit- 
nesses summoned  to  testify  in  his  behalf.^  A  prompt  obedience  to  a 
summons  is  incumbent  upon  all  witnesses,  nor  is  a  commanding  or 
superior  officer  in  general  authorized  to  place  any  obstacles  in  the 
way  of  the  prompt  attendance,  as  a  witness,  of  an  inferior  duly  sum- 
moned or  ordered  to  attend  as  such.^  R.  33,  100,  June,  1872;  43,  341, 
June,  1880;  0.  17212,  Feb.  17,  1905;  17666,  Mar.  13,  1905. 

X  D  1.  An  accused  party  at  a  militaiy  trial  can  rarely  be  entitled 
to  demand  the  attendance,  as  a  witness,  of  a  chief  of  a  staff  corps, 
much  less  that  of  the  President  or  Secretary  of  War,  especially  as 
some  minor  official  can  almost  invariably  furnish  the  desired  facts. 
If,  however,  the  testimony  of  one  of  these  officials  be  found  to  be 
necessary  or  most  desirable,  and  the  same  can  not  legally  be  taken 
by  deposition,  the  court,  if  convened  at  a  distance,  may  properly  be 
adjourned  to  Wasliington  or  other  convenient  point,  m  order  that 
the  witness  may  be  enabled  to  attend  without  detriment  to  the 
public  mterests.     R.  39,  517,  Apr.,  1878. 

X  E.  By  deposition.    X^^e  Ninety-first  article  of  war.) 

X  F  1.  A  summons  may  legally  be  served  either  by  a  military  or  a 
civil  person,^  but  will  in  general  preferably  be  served  by  an  officer  or 
noncommissioned  officer  of  the  Army.  A  judge  advocate,  or  a  com- 
manding or  other  officer  to  whom  a  summons  is  sent  for  service,  will 
not  be  authorized,  by  employing  for  the  purpose  a  United  States 
marshal  or  deputy  marshal,  or  other  civil  official,  to  commit  the  United 
States  to  the  payment  of  fees  to  such  official.  R.  43,  284,  Apr.,  1880. 
The  action,  however,  of  a  judge  advocate  in  employing  a  deputy 
marshal  to  serve  a  summons,  where  apparently  the  service  could  not 
otherwise  be  so  effectually  or  economically  made,  has  in  a  few  cases 
been  so  far  ratified  by  the  Secretary  of  War  as  to  allow,  out  of  the 
appropriation  for  Army  contingencies,  the  payment  of  a  small  and 
reasonable  account  of  charges  rendered  by  such  official.  R.  37,  570, 
May,  1876. 

X  F  2.  There  is  no  fee  or  compensation  established  or  authorized 
to  be  paid,  by  statute  or  regulation,  for  the  service  of  subpoenas,  for 
the  attendance  of  witnesses  before  military  courts.  Neither  a  com- 
manding officer  nor  a  judge  advocate  is  authorized  to  employ  a  civil 
official  or  any  civilian  tor  such  service  or  to  commit  the  United  States 
to  the  payment  of  any  compensation  to  such  a  person.  But  in  a  case 
where  the  employment  of  a  civilian  for  such  purpose  had  been  resorted 

^  Greenleaf  on  Evidence,  sec.  367. 

2  See  G.  C.  M.  O.  21,  24,  War  Dept.  1872;  do.  128,  Hdqrs.  of  Army,  1876. 

3  See  G.  C.  M.  O.  18,  Dept.  of  the  Platte,  1877. 
*  See  G.  0.93,  Hdqrs.  of  Army,  1868. 


526  DISCIPLINE   X   F   3. 

to,  and  it  clearly  appeared  that,  to  employ  him,  was  the  most  eco- 
nomical as  well  as  enectual  course  open  to  the  officer,  advised  that  his 
reasonable  compensation  be  paid  out  of  the  appropriation  for  con- 
tingencies of  the  Army.  P.  32,  365,  May,  1889;  51,  JfiH ,  Jan.,  1892; 
C.  5549,  Dec,  1898;  13^18,  Oct.  9,  1902. 

X  F  3.  Subpoenas  for  witnesses  residing  in  foreign  territory  should 
be  transmitted  thi'ough  the  Department  of  State  for  service.  G. 
13046,  Aug.  7,  1902. 

X  G  1 .  A  witness  can  have  no  authority  to  discharge  or  relieve 
himself  from  attendance  on  the  ground  that  the  testimony  desired  of 
him  is  immaterial,  or  for  any  other  reason.  In  the  civil  practice  such 
an  act  would  be  a  grave  contempt  of  court.  It  is  for  the  court  to 
judge  as  to  the  materiality  or  pertmency  of  the  evidence  of  witnesses; 
and  unless  a  witness  has  been  determined  by  the  court  to  be  incom- 
petent or  his  testimony  to  be  inadmissible,  he  should  remain  and  stand 
his  examination  till  duly  informed  by  the  court  or  judge  advocate 
that  his  attendance  is  no  longer  required  in  the  case.  B.  39,  354, 
Dec,  1877. 

X  H  1.  The  privilege,  recognized  by  the  common  law,  of  a  witness 
to  refuse  to  respond  to  a  question,  the  answer  to  which  may  criminate 
him,  is  a  personal  one,  which  the  witness  may  exercise  or  waive  as  he 
may  see  nt.  It  is  not  for  the  judge  advocate  or  accused  to  object  to 
the  question  or  to  check  the  witness,  or  the  court  to  exclude  the  g[ues- 
tion  or  direct  the  witness  not  to  answer.  Where,  however,  he  is  igno- 
rant of  his  right,  the  court  may  properly  advise  him  of  the  same.  B. 
11,  220,  Dec,  I864.  But  where  a  military  witness  declines  to  answer 
a  question  on  the  ground  that  it  is  of  such  a  character  that  the  answer 
thereto  may  criminate  him,  but  the  court  decides  that  the  question  is 
not  one  of  this  nature  and  that  it  must  be  answered,  the  witness  can 
not  properly  further  refuse  to  respond,  and,  if  he  does  so,  will  render 
himself  liable  to  charges  and  trial  under  article  62.^  R.  34,  242,  Apr., 
1873. 

X  H  1  a.  Upon  the  trial  of  a  cadet  of  the  Military  Academy,  the 
court,  against  the  objection  of  the  accused,  required  another  cadet, 
introduced  as  a  witness  for  the  prosecution,  to  testify  as  to  facts  which 
would  tend  to  criminate  him.  Held  that  such  action  was  erroneous, 
the  not  answering  in  such  cases  being  a  privilege  of  the  witness  only,^ 
who  (whether  or  not  objection  were  made)  could  refuse  to  testify,  and 
who,  if  ignorant  of  his  rights,  should  be  instructed  therein  by  the 
court.     P.  38,  194,  Jan.,  1890. 

X  H  2.  The  ninetieth  article  of  war  charges  the  judge  advocate  of 
a  court-martial  with  the  duty  of  objecting,  during  the  progress  of  a 
trial,  ''to  any  question  to  the  prisoner  the  answer  to  which  might  tend 
to  criminate  himseh.''  Held  that  to' 'compel"  is  to  constrain  a  witness, 
by  force  or  duress,  to  give  incriminating  testimony  under  the  sanction 
01  an  oath,  or  otherwise,  but  no  such  case  arises  where,  in  the  execu- 
tion of  the  physical  examination  imposed  by  a  competent  military 
superior,  a  medical  officer  becomes  possessed  of  information  in  respect 
to  the  person  of  an  enlisted  man ;  and  he  may  testify  to  any  facts  that 
have  come  under  his  observation  in  the  course  of  such  physical  exam- 
ination.    C.  24624,  Mar.  13,  1909. 

1  See  G.  C.  M.  O.  23,  War  Dept.,  1873;  also  Brown  v.  Walker,  161U.  S.,  591. 

2  That  the  accused  can  not  take  advantage  of  the  error,  see  Greenleaf  on  Evidence, 
16th  edition,  vol.  1,  sec.  469  d,  p.  613. 


DISCIPLINE   XII.  527 

X  I  1 .  To  entitle  a  witness  to  the  payment  of  fees,  it  is  not  abso- 
lutely essential  that  he  should  produce  a  formal  summons  or  subpoena 
addressed  to  and  complied  witn  by  him,  or  that  he  should  have  been 
formally  summoned  in  the  case.  It  will  in  general  be  sufhcient  if  he 
has  duly  attended  in  compliance  with  a  verbal  or  informal  written 
request  from  the  judge  advocate,  or  even  at  the  instance  of  the  accused, 
if  this  action  has  been  acquiesced  in  by  the  judge  advocate.^  But  a 
party  can  not  entitle  himself  to  witness  fees  by  merely  appearing  in 
court  on  his  own  responsibihty  and  not  at  the  instance  of  eitner  party. 
R.  23,  196,  Aug.,  1S66;  C.  7890,  Apr.,  1900;  15789,  Jan.  19,  1904. 

X  I  2.  Where  a  party  who  had  attended  as  a  witness  before  a  mili- 
tary court,  claimeu,  in  addition  to  the  regular  per  dieTn  compensation, 
to  be  indemnified  for  the  loss  of  time  and  injury  to  his  business  alleged 
to  have  been  occasioned  by  reason  of  his  being  obliged  to  attend  as 
such  witness;  held  that  such  claim  could  not  be  allowed  by  the  execu- 
tive branch  of  the  Government,  the  loss  and  injury  complained  of 
being  disadvantages  to  which  citizens  were  liable  to  be  subjected  in 
the  course  of  the  discharge  of  their  obligations  to  civil  society,  and  for 
which  the  law  has  provided  no  remedy.     R.  22,  264,  July,  1866. 

X  I  3.  The  compensation  allowed  by  the  Secretary  of  War  for 
witnesses  summoned  as  experts  in  handwriting  before  courts-martial, 
held  payable  out  of  the  annual  appropriation  ''for  compensation  of 
witnesses  attending  upon  courts-martial  and  courts  of  inquiry."  ^  P. 
49,  187,  Sept.,  1891;  C.  16556,  July  7,  1904,  and  Apr.  20,  1911. 

X  I  4.  When  giving  e\idence  by  deposition.  {See  Ninety -first  arti- 
cle of  war.) 

X  I  5.  Held  that  the  annual  appropriation  by  Congress  for  the  com- 

Eensation  of  witnesses  attending  before  courts-martial  was  evidently 
ased  upon  the  understanding  that  such  compensation,  not  being 
prescribed  by  statute,  was  one  left  to  be  fixed  by  the  Secretary  of 
War  (the  authority  charged  with  the  expenditure  of  the  appropria- 
tion), and  was  indeed  that  which  had  been  so  fixed  and  published  in 
Army  Regulations.  Thus  the  appropriation,  made  as  it  is  from  year 
to  year,  is  to  be  regarded  as  made  in  knowledge  and  recognition  of 
the  rates  of  compensation  as  estabhshed  by  such  regulations.  Sec- 
tion 848,  R.  S.,  prescribing  witness'  fees,  and  constituting  a  part  of 
the  chapter  entitled  ''The  Judiciary,"  has  reference  to  such  fees  in 
the  Federal  civil  courts  only,  and  has  no  appHcation  whatever  to 
courts-martial,  which  are  no  part  of  the  judiciary  of  the  United  States. 
P.  57,  490,  Feb.,  1893. 

X 1 6.  Fees  to  foreign  civilian  witnesses  before  courts-martial  are  the 
same  as  those  allowed  by  United  States  courts  at  the  place  of  trial.^ 
C.  13046,  Aug.  6,  1902. 

X  I  7.  Wliere  the  voucher  of  a  witness  has  been  lost,  a  new  voucher 
may  be  issued  by  the  judge  advocate  upon  a  satisfactory  showing  of 
such  loss,  supported  by  affidavit.     The  new  voucher  should  be  so 

^  A  strict  observance,  however,  of  the  Army  Regulations  would  call  for  the  issue  of 
formal  summonses  or  subpoenas  to  the  witnesses  on  both  sides,  and  it  is  the  better 
practice  for  the  judge  advocate  to  cause  such  to  be  served  in  each  instance,  particu- 
larly in  the  case  of  civilian  witnesses. 

2  See  Smith  v.  U.  S.,  24  Ct.  Cls.,  209.  Cir.  30,  War  Department,  July  18,  1904, 
requires  that  when  the  necessity  for  the  employment  of  an  expert  arises,  such  neces- 
sity must  be  shown  by  a  resolution  of  the  court,  and  the  authority  of  the  Secretary  of 
War  must  be  secured  in  advance, 

3  See  act  of  Mar.  2,  1901  (31  Stat.,  950);  I  Comp.  Dec.  79. 


528  DISCIPLINE  X  I  8. 

noted  as  to  indicate  its  character,  and  should  be  forwarded  to  the 
Paymaster  General  for  settlement.     C.  21516,  May  8,  1907. 

X  I  8.  Policemen  of  the  District  of  Columbia  are  ^'civilians  in  the 
employ  of  the  Government "  in  the  sense  contemplated  by  (paragraph) 
(1006,)  Army  Regulations  (1910).     C.  17^81,  Feb.  1,  190^. 

XI  9.  A  postmaster  is  a  ' 'civilian  in  the  employ  of  the  Govern- 
ment" in  the  sense  contemplated  by  paragraph  1006,  Army  Regula- 
tions (1910).     G.  17481,  Mar.  10,  1910. 

X  K  1 .  To  authorize  a  resort  to  an  attachment  there  must  have 
been  a  formal  summons,  duly  issued  and  served  upon  the  witness, 
and  not  complied  with.     R.  36,  162,  Dec,  1874. 

X  K  2.  Held  that  the  statute  could  not  properly  be  construed  as 
authorizing  the  issue  of  an  attachment  to  compel  a  witness  to  attend 
before  a  commissioner  or  other  person  and  give  his  deposition.  R.  36, 
152,  Dec,  1874. 

X  K  3.  A  judge  advocate  can  not  properly  direct  an  attachment  to 
a  United  States  marshal  or  deputy  marshal,  or  other  civil  official. 
Some  military  officer  or  person  should  be  designated  by  him,  or 
detailed  for  the  purpose  by  superior  authority.^  R.  27,  147,  Aug., 
1868.  In  executmg  the  attachment,  the  needful  force  may  be  em- 
ployed.    R.  11,234,  Dec,  1864. 

X  L  1 .  The  principle  of  the  common  law  by  which  a  witness  is  pro- 
tected from  arrest^  should  in  general  be  applied  to  military  cases.  If 
it  can  well  be  avoided,  an  arrest  should  certainly  not  be  imposed  upon 
an  officer  or  soldier  while  attending  a  court-martial  as  a  witness.  But 
such  an  arrest  would  constitute  an  irregularity  only,  and  would  not 
affect  the  validity  of  the  proceediags  of  a  trial  to  which  the  party  thus 
arrested  was  subsequently  subjected.     R.  39,  12,  May,  1876. 

XI  A  1.  Courts-martial  should  in  general,  of  course,  follow — so 
far  as  apposite  to  military  cases — the  rules  of  evidence  observed 
by  the  civil  courts,  and  especially  the  courts  of  the  United  States,  m. 
criminal  cases.^    They  are  not  bound,  however,  by  any  statute  in  this 

^  Upon  the  subject  of  the  execution  of  process  of  attachment  in  military  cases,  see 
the  opinion  of  the  Atty.  Gen.  in  12  Op.,  501;  also  the  directions — ^based  upon  the 
same— in  G.  0.  93,  Hdqrs.  of  Army,  1868. 

Prior  to  the  adoption  of  the  Constitution,  Congress  (then  the  Government)  appears 
to  have  relied  upon  the  State  authorities  for  the  necessary  process  to  compel  the 
attendance  of  witnesses  before  militarj^  courts.  See  resolution  of  Nov.  16,  1779 — III 
Journals  of  Congress,  392,  In  the  British  law,  by  a  provision  first  incorporated  in 
the  mutiny  act  in  the  year  1800,  witnesses  neglecting  to  comply  with  a  summons 
requiring  their  presence  at  such  courts,  are  made  "liable  to  be  attached  in  the  Court 
of  Queen's  Bench,"  etc.  This  provision  well  illustrates  the  close  connection  between 
executive  and  the  other  governmental  powers  in  the  British  constitution,  where  the 
sovereign  is  a  part  of  the  judiciary  as  well  as  of  the  legislature.  The  fact  of  the  express 
distinction  and  separation  of  the  three  powers  in  our  own  organic  law,  one  result  of 
which  has  been  to  leave  courts-martial,  as  agencies  of  the  executive  power,  quite 
independent  of  any  review  or  control  on  the  part  of  the  United  States  courts,  has  also 
no  doubt  availed  to  preclude  the  devolving  upon  the  Federal  tribunals  of  a  power, 
fitly  conferred  in  the  foreign  statute,  but  which,  with  us,  would  be  exceptional  and 
out  of  harmony  with  our  constitutional  system. 

It  may  be  added,  in  regard  to  the  exercise  of  the  authority  to  issue  compulsory 
process,  as  vested  in  judge  advocates  by  the  act  of  1863  (sec.  1202,  R.  S.),_that  the 
occasions  of  such  exercise  have  not  been  frequent  in  practice,  and  no  case  is  known 
in  which  such  authority  has  been  abused. 

2  1  Greenl.  Ev.,  sec.  316;  Smythe  v.  Banks,  4  Dallas,  329. 

3  See  3  Greenl.  Ev.,  sec.  476;  Lebanon  v.  Heath,  47  N.  Hamp.,  359;  People  v.  Van 
Allen,  55  N.  York,  39;  2  Op.  At.  Gen.,  343, 17  id.,  310;  Grant  v.  Gould,  2  H.  Black,  87; 
1  McArthur,  47;  McNaghten,  180;  Harcourt,  76;  DeHart,  334;  O'Brien,  169;  G.  O.  51, 
Middle  Dept.,  1865;  G.  C.  M.  O.  60,  Dept.  of  Texas,  1879;  do.  3,  52,  Dept.  of  the 
East,  1880. 


DISCIPLINE   XI  A  2.  529 

particular,  and  it  is  thus  open  to  them,  in  the  interest  of  justice,  to 
aj)i)ly  these  rules  with  more  indulgence  than  the  civil  courts — to 
allow,  for  example,  more  latitude  in  the  introduction  of  testimony 
and  in  the  examination  and  cross-examination  of  witnesses  than  is 
commonly  permitted  by  the  latter  tribunals.  In  such  particulars,  as 
persons  on  trial  by  courts-martial  are  ordinarily  not  versed  in  legal 
science  or  practice,  a  liberal  course  should  in  general  be  pursued,  and 
an  overteclinicality  be  avoided.^  R.  29,  480,  Dec,  1869;  31,  273, 
Mar.,  1871;  42,  74,  Dec,  1878;  55,  497,  Mar.,  1888;  G.  8471,  June, 
1900. 

XI  A  2.  The  law  presumes  that  public  officers  duly  perform  their 
official  functions,  and  tliis  presumption  continues  till  the  contrary 
is  shown.     P.  42,  246,  Aug.,  1890. 

XI  A  3.  The  rules  of  evidence  should  be  appHed  by  military  courts 
irrespective  of  the  rank  of  the  person  to  be  affected.  Thus  a  witness 
for  tlie  prosecution,  whatever  be  his  rank  or  office,  may  always  be 
asked  on  cross-examination,  whether  he  has  not  expressed  animosity 
toward  the  accused,  as  well  as  whether  he  has  not  on  a  previous 
occasion  made  a  statement  contradictory  to  or  materially  different 
from  that  embraced  in  liis  testimony.  Such  questions  are  admissible 
by  the  estabHshed  law  of  evidence  and  imply  no  disrespect  to  the 
witness  nor  can  the  witness  properly  decfine  to  answer  them  on  the 
ground  that  it  is  disrespectful  to  him  thus  to  attempt  to  discredit  him.^ 
R.  32,  642,  May,  1872;  41,  33,  Oct.,  1877. 

XI  A  4  a.  Where  a  soldier  charged  with  desertion  pleads  guilty  of 
absence  without  leave  but  not  guilty  of  desertion;  lield,  that  the 
operation  of  such  a  plea  is  to  cast  upon  the  judge  advocate  the  burden 
of  proving  the  animus  non  revertendi,  which  is  the  gist  of  the  offense 
of  desertion.  While  the  circumstance  that  the  absence  has  been 
exceptionally  protracted  "will,  when  unexplained,  ordinarily  furnish 
a  presumption  of  the  existence  of  the  necessary  intent,  the  court  will 
not  be  justified  in  arriving  at  a  finding  of  guilty  upon  the  plea  of  the 
accused  where  the  plea  amounts  to  a  traverse  of  the  charge,  and 
practice  rec[uires  that  evidence  be  introduced,  although  it  be  of 
necessity  slight,  to  enable  the  court  to  correctly  arrive  at  such  a  find- 
ing.    C.  17313,  Dec  23,  1904. 

XI  A  5.  Official  communications  between  the  heads  of  the  depart- 
ments of  the  Government  and  their  subordinate  officers  are  privileged. 
Were  it  otherwise  it  would  be  impossible  for  such  superiors  to  adniin- 
ister  effectually  the  pubfic  affairs  with  which  they  are  intrusted.  P  .52, 
344,  Mar.,  1892. 

XI  A  6  a.  The  fact  that  a  party  is  a  public  enemy  of  the  United 
States  or  has  engaged  in  giving  aid  to  the  enemy  does  not  affect  the 
competency  of  his  testimony  as  a  witness  before  a  court-martial. 
Where  testifying,  however,  in  time  of  war,  either  in  favor  of  a  person 
in  the  enemy's  service  or  an  ally  of  or  sympathizer  with  the  enemy, 
or  against  a  Federal  officer  or  soldier,  his  statements  (like  those  of  an 
accompfice)  are  ordinarily  to  be  received  with  caution  unless  corro- 

^  Compare  the  views  expressed  in  G.  C.  M.  O.  32,  War  Dept.,  1872;  do.  23,  Dept.  of 
Texas,  1873;  do.  60,  Dept.  of  California,  1873. 

2  See  opinion  of  the  Judge  Advocate  General,  as  adopted  by  the  President,  in  G.  C. 
M.  O.  66,  Hdqrs.  of  Army,  1879;  and  compare  remarks  of  reviewing  oflicers,  in  G. 
0.  11,  Dept.  of  CaUfornia,  1865;  G.  C.  M.  O.  31,  Dept.  of  Dakota,  1869;  do.  8,  Fourth 
Mil.  Dist.,  1867. 

31106°— 12 34 


530  DISCIPLINE  XI  A  7   a. 

borated.  R.  9,  164  and  173,  June,  1864;  10,  330,  Sept.,  1864;  13,  499, 
Mar.,  1864;  U,  645,  June,  1865;  20,  86,  Oct.,  1865;  21,  54,  Nov.,  1865. 

XI A  7  a.  A  confession  is  competent  evidence  when  free  and 
voluntary;  otherwise  where  made  through  the  influence  of  fear  or  hope 
of  favor/  So  a  confession  that  he  had  deserted,  made  by  an  alleged 
deserter  to  a  pohce  officer,  who,  on  arresting  him,  assured  him  that  if 
he  told  the  truth  he  (the  officer)  would  give  him  an  opportunity  to 
escape  before  being  delivered  up  to  the  militar;^  authorities — held 
clearly  not  admissible  in  evidence  as  having  been  induced  by  promise 
of  favor  on  the  part  of  a  person  in  authority.  R.  55,  217,  Dec,  1887; 
C.  25937,  Dec.  14,  1909. 

XI  A  7  b.  Where  a  soldier  charged  with  desertion  voluntarily  con- 
fesses that  he  has  been  absent  without  authority  such  confession  may 
be  used  in  evidence  at  his  trial;  held,  that  before  the  admission  of  the 
confession  the  corpus  delicti  must  be  proved.  In  a  case  of  desertion 
the  corpus  is  the  unauthorized  absence,  the  intent,  which  makes  the 
difference  between  absence  without  leave  as  an  offense  and  desertion, 
is  a  matter  of  opinion  for  the  court  to  determine  after  considering  all 
the  evidence  attainable.     C.  17635,  Mar.  7,  1905. 

XI  A  8.  Upon  a  trial  where  the  offense  is  drunkenness  or  drunken 
conduct  charged  under  article  62,  or  drunkenness  on  duty  charged 
under  article  38,  it  is  not  essential  to  confine  the  testimony  to  a 
description  of  the  conduct  and  demeanor  of  the  accused,  but  it  is 
admissible  to  ask  a  witness  directly  if  the  accused  ''was  drunk," 
or  for  a  witness  to  state  that  the  accused  ''was  drunk,"  on  the  occasion 
or  under  the  circumstances  charged.  Such  a  statement  is  not  viewed 
by  the  authorities  as  of  the  class  of  expressions  of  opinion  which  are 
properly  ruled  out  on  objection  unless  given  by  experts,  but  as  a  mere 
statement  of  a  matter  of  observation,  palpable  to  j)ersons  in  general, 
and  so,  proper  to  be  given  by  any  witness  as  a.  fact  in  his  knowledge.^ 
R.  22,  635,  Mar.,  1867;  24,  79,  Dec,  1876;  56,  165,  May,  1888. 

XI  A  8  a.  While  drunkenness  is  no  excuse  for  crime,^  and  one  who 
becomes  voluntarily  drunk  is  criminally  responsible  for  all  offenses 
committed  by  him  while  in  such  condition,  yet  the  fact  of  the  exist- 
ence of  drunkenness  may  be  proper  evidence  to  determine  the  ques- 

^  United  States  v.  Pumphreys,  1  Cranch  C.  C,  74;  .United  States  v.  Hunter,  id., 
317;  United  States  v.  Charles,  2  id.,  76;  United  States  v.  Pockliiigton,  id.,  293;  United 
States  V.  Nott,  1  McLean,  499;  United  States  v.  Cooper,  3  Qu.  L.  J.,  42. 

If  an  officer  were  to  admit  to  a  superior,  in  writing,  the  commission  of  a  military 
offense  and  promise  not  to  repeat  the  same,  under  the  well-founded  hope  and  belief 
that  a  charge  which  had  been  preferred  against  him  therefor  would  be  withdrawn, 
the  admission  thus  made,  in  case  he  were  actually  brought  to  trial  upon  such  charge, 
would  not  properly  be  received  in  evidence  against  his  objection.  Confessions  made 
by  private  soldiers  to  officers  or  noncommissioned  officers,  though  not  shown  to  have 
been  made  under  the  influence  of  promise  or  threat,  should  yet,  in  view  of  the  mili- 
tary relations  of  the  parties,  be  received  with  caution.  See  G.  C.  M.  O.  3,  War  Dept., 
1876;  G.  O.  54,  Dept.  of  Dakota,  1867.     And  compare  Cady  v.  State,  44  Miss.,  332. 

Mere  silence  on  the  part  of  an  accused,  when  questioned  as  to  his  supposed  offense, 
is  not  to  be  treated  as  a  confession.     See  Campbell  v.  State,  65  Ala.,  80. 

2  People  V.  Eastwood,  14  N.  York,  562;  Stacy  v.  Portland  Pub.  Co.,  68  Maine,  279; 
Svdleman  v.  Beckwith,  43  Conn.,  12;  State  v.  Huxford,  47  Iowa,  16;  G.  O.  42,  Dept. 

01  the  Platte,  1871.     Lawson  on  expert  and  opinion  evidence,  p.  473  et  seq. 

^  Coke,  in  laying  down  the  doctrine,  now  general,  that  drunkenness  does  not  exten- 
uate but  rather  aggravates  the  offense  actually  committed,  says:  *  'It  is  a  great  offense 
initself."  Beverly's  case,  4  Coke,  123  b.  So  ''The  law  will  not  suffer  any  man  to 
privilege  one  crime  by  another."  Blackstone  Com.,  v.  4,  p.  26.  "The  vices  of  men 
can  not  constitute  an  excuse  for  their  crimes. "    Story,  J.,  in  United  States  v.  Cornell, 

2  Mason,  91,  111. 


DISCIPLINE   XI  A  9.  531 

tion  of  the  species  or  grade  of  crime  actually  committed,  especially 
where  the  point  to  be  decided  is  whether  the  accused  was  actuated 
by  a  certain  specific  intent  Thus  the  fact  and  measure  of  the  drunk- 
enness of  the  accused  may  properly  be  considered  by  the  court  as 
affecting  the  question  of  the  existence  of  an  animus  furandi  in  a  case 
of  alleged  larceny.*  R.  23,  222,  Aug.,  1866;  SO,  337,  May,  1870;  C. 
16402,  May  31,  1904. 

XI  A  9.  It  is  a  well  settled  rule  of  the  common  law  that  to  sustain 
the  charge  of  perjury  the  evidence  of  two  witnesses  or  of  one  witness 
with  strong  corroborating  circumstances  is  necessary  to  prove  the 
falsity  of  the  statements  to  which  a  witness  has  testified.  R.  12, 
631,  Sept.,  1865. 

XI  A  9  a.  Under  this  charge  testimony  wliich  consists  of  answers 
to  questions  going  to  the  credit  of  a  particular  witness  or  of  other 
witnesses  whom  he  corroborated  is  ''material  to  the.  issue."  P.  36, 
359,  Nov.,  1889;  54,  316,  July,  1892. 

XI  A  10.  Where  a  witness  for  the  prosecution  was  permitted  by  a 
court-martial  to  temporarily  suspend  his  testimony  and  leave  the 
court  room  for  the  purpose  of  reiresliing  his  memory  as  to  certain 
dates,  held  that  such  action  was  irregular  and  the  further  testimony 
of  the  witness  as  to  such  dates  inadmissible.  By  the  course  pursued 
the  court  and  accused  were  prevented  from  knowing  by  what  means 
the  memory  of  the  witness  had  been  refreshed — whether,  for  instance, 
it  may  not  have  been  refreshed  by  oral  statements  of  some  person  or 
persons.     P.  24,  284,  May,  1888. 

XI  A  11.  Evidence  of  the  good  character,  record,  and  services  of 
the  accused  as  an  officer  or  soldier  is  admissible  in  all  military  cases 
without  distinction— ^in  cases  where  the  sentence  is  mandatory  as 
well  as  those  where  it  is  discretionary — upon  conviction.  For,  where 
such  evidence  can  not  avail  to  affect  the  measure  of  punishment,  it 
may  yet  form  the  basis  of  a  recommendation  hj  the  members  of  the 
court,  or  induce  favorable  action  by  the  reviewing  officer  whose 
approval  is  necessary  to  the  execution  of  the  sentence.  R.  19,  35, 
Oct.,  1865;  36,  446,  471,  May,  1875.  Where  such  evidence  is  intro- 
duced, the  prosecution  may  offer  counter  testimony,  but  it  is  an 
established  rule  of  evidence  that  the  prosecution  can  not  attack  the 
character  of  the  accused  until  the  latter  has  introduced  evidence  to 
sustain  it,  and  has  thus  put  it  in  issue.^     R.  28,  593,  May,  1869. 

^  Rex  V.  Pitman,  2  C.  &  P.,  423;  1  Bish.  Cr.  L.,  sec.  490.  So  in  fact  the  drunkenness 
has  been  held  admissible  in  evidence  in  cases  of  homicide  upon  the  question  of  the 
existence  of  malice  as  distinguishing  murder  from  manslaughter;  as  also  upon  the 
question  of  deliberate  intent  to  kill  in  States  where  the  law  distinguishes  degrees  of 
murder.  State  v.  Johnson,  40  Conn.,  136,  and  41  id.,  588;  People  v.  Rogers,  18  N. 
York,  9;  People  v.  Hammill,  2  Parker,  223;  People  v.  Robinson,  id.,  235;  State  v. 
McCants,  1  Spears,  384;  Kelly  v.  State,  3  Sm,  &  M.,  518;  Shannahan  v.  Common- 
wealth, 8  Bush.,  463;  Swan  v.  State,  4  Humph.,  136;  Pirtle  v.  State,  9  id.,  663;  Haile 
V.  State,  11  id.,  154;  People  v.  Belencia,  21  Cal.,  544;  People  v.  King,  27  id.,  509; 
People i;.  Williams,  43  id.,  344;  3  Greenl.  Ev.,  sees.  6, 148;  1  Bish.  Cr.  L.,  sees.  492,  493. 

^  In  commencing  the  examination  of  a  witness  it  is  a  leading  of  the  witness  and 
objectionable  to  read  to  him  the  charge  and  specification  or  specifications  since  he 
is  thus  instructed  as  to  the  particulars  in  regard  to  which  he  is  to  testify  and  which 
he  is  expected  to  substantiate.  So,  to  read  or  state  to  him  in  substance  the  charge 
and  ask  him  "what  he  knows  about  it,"  or  in  terms  to  that  effect,  is  loose  and 
objectionable,  as  encouraging  irrelevant  and  hearsay  testimony.  The  witness  should 
simply  be  asked  to  state  what  was  said  and  done  on  the  occasion,  etc.  A  witness 
should  properly  also  be  examined  on  specific  interrogatories  and  not  be  called  upon 
to  make  a  general  statement  in  answer  to  a  single  general  question.     Compare  General 


532  DISCIPLINE   XI  A  11  a. 

XI  A  1 1  a.  Without  regard  to  any  action  of  the  defense,  the  judge 
advocate  may,  with  the  consent  of  the  court,  introduce  evidence  as 
to  the  sanity  of  the  accused  for  the  purpose  of  removing  any  doubt 
on  that  subject  that  may  exist  in  the  njind  of  any  member  of  the 
court.  Held,  however,  that  in  the  absence  of  such  doubt  by  any 
member  of  the  court  he  need  not  introduce  such  evidence.^  C.  2994, 
Aug.  30,  1897. 

XI  A  12.  At  the  trial,  in  1894,  of  an  officer  charged  with  a  disorder 
and  breach  of  disciphne  which  involved  the  killing  by  him  of  another 
officer,  there  was  offered  in  evidence,  on  the  part  of  the  accused,  to 
exliibit  the  character  and  disposition  of  the  officer  killed,  a  copy  of  a 
general  court-martial  order  of  1872,  setting  forth  certain  charges 
alleging  dishonest  and  unbecoming  conduct,  upon  which  the  latter 
officer  was  then  tried  and  convicted,  and  the  findings  of  the  court 
thereon.  Held,  that  such  evidence  was  wholly  inadmissible  for  the 
purpose  designed.     P.  65,  270,  June,  1894. 

XI  A  13.  Except  by  the  consent  of  the  opposite  party,  the  testi- 
mony contained  m  the  record  of  a  previous  trial  of  the  same  or  a 
similar  case  can  not  properly  be  received  in  evidence  on  a  trial  by 
court-martial;  nor  can  the  record  of  a  board  of  investigation  ordered 
in  the  same  case  be  so  admitted  without  such  consent.  In  all  cases 
(other  than  that  provided  for  by  the  one  hundred  and  twenty-first 
article  of  war)  testimony  given  upon  a  previous  hearing,  if  desired 
to  be  introduced  in  evidence  upon  a  trial,  must  (unless  it  be  otherwise 
speciaUy  stipulated  between  the  parties)  be  offered  de  novo  and  as 
original  matter.     R.  19,  41,  1865;  27,  818,  Oct.,  1868. 

XI  A  14  a.  It  is  in  general  competent,  on  trials  by  court-martial, 
for  the  accused  to  put  in  evidence  any  facts  going  to  extenuate  the 
offense  and  reduce  the  punishment,  as  the  fact  that  he  has  been  held 
in  arrest  or  confinement  an  unusual  period  before  trial;  the  fact  that 
he  has  already  been  subjected  to  punishment  or  special  discipline  on 
account  of  his  offense ;  the  fact  that  his  act  was  m  a  measure  sanc- 
tioned by  the  act  or  practice  of  superior  authority,  etc.  R.  28,  IO4, 
Aug.,  1868. 

XI  A  14  b.  The  testimony  of  an  accused  party  is  competent  only 
when  presented  as  authorized  by  the  act  of  March  16,  1878,  c.  37,  viz, 
when  the  party  himself  requests  to  be  admitted  to  testify.  Such 
testimony  is  not  excepted  from  the  ordinary  rules  governing  the 
admissibility  of  evidence,  nor  from  the  application  of  the  usual  tests 

Orders  12,  Department  of  the  Missouri,  1862;  General  Orders  36,  id.,  1863;  General 
Orders  29,  Department  of  California,  1865;  General  Orders  67,  Department  of  the 
South,  1874;  General  Court-Martial  Orders  14,  24,  Department  of  Dakota,  1877. 

^  U.  S.  1;.  Davis,  160  U.  S.,  469,  492,  where  the  Supreme  Court  of  the  United  States 
quoted  with  approval  the  following  from  the  Supreme  Court  of  the  District  of  Columbia: 
"  The  principle  is  accurately  stated  by  Mr.  Justice  Cox,  of  the  Supreme  Court  of  the 
District  of  Columbia  as  follows:  'The  crime,  then,  involves  three  elements,  viz,  the 
killing,  malice,  and  a  responsible  mind  in  the  murderer.  But  after  all  the  evidence 
is  in,  if  the  jury,  while  bearing  in  mind  both  these  presumptions  that  I  have  men- 
tioned— i.  e.,  that  the  defendant  is  innocent  until  he  is  proved  guilty,  and  that  he  is 
and  was  sane,  unless  evidence  to  the  contrary  appears — and  considering  the  whole 
evidencein  the  case,  still  entertain  what  is  called  a  reasonable  doubt,  on  any  ground 
(either  as  to  the  killing  or  the  responsible  condition  of  mind),  whether  he  is  guilty  of 
the  crime  of  murder,  as  it  has  been  explained  and  defined,  then  the  rule  is  that  the 
defendant  is  entitled  to  the  benefit  of  that  doubt  and  to  an  acquittal.'  Guiteau's 
case,  10  Fed.  Rep.,  161,  163." 


I 


DISCIPLINE  XI  A  14  b  (l).  533 

of  cross-oxamination,  rebuttal,  etc.^  But  an  accused  so  testifying 
can  not  be  compelled  against  liis  objection  to  testify  or  criminate 
liimself  as  to  an  offense  in  respect  to  which  he  has  not  testified.^ 
C.  1495,  July,  1895. 

XlAl4b(l).  As  the  accused  is  not  required  to  testify  and  need 
not  go  on  tlie  stand  at  all,  held,  that  he  must,  if  he  takes  the  stand, 
testify  to  all  facts  within  his  knowledge  relevant  to  the  case  under 
tlie  rules  of  evidence,  as  would  any  witness  in  the  case.*''  C.  18006, 
May  16,  1905;  18764,  Nov.  9,  1910. 

On  objection  the  accused  can  not  be  compelled  on  cross-examination 
to  testify  to  matters  not  brought  out  on  the  direct  examination.* 
C.  1495,  July  6,  1895. 

XI A  15.  The  weight  of  evidence  does  not  depend  upon  the  number 
of  tlie  witnesses.  A  single  witness,  whose  statements,  manner,  and 
appearance  on  the  stand  are  such  as  to  conamend  him  to  credit  and 
confidence,  will  sometimes  properly  outweigh  several  less  acceptable 
and  satisfactory  witnesses.^    n.  85,  55,  Dec,  1873. 

XI  A  16.  It  IS  an  important  part  of  the  judgment  of  the  court,  in 
a  case  where  the  evidence  is  conflicting,  to  determine  the  measure  of 
the  credibility  to  be  attached  to  the  several  witnesses.  In  its  finding, 
therefore,  the  court  may,  in  connection  with  the  testimony,  properly 
take  into  consideration  the  appearance  and  deportment  of  the  wit- 
nesses on  the  stand  and  their  manner  of  testifying,  especially  when 
under  cross-examination.^    R.  30,  383,  447 ,  May  arid  June,  1870. 

XI  A  17  a  (1).  Muster-in  roUs  are  primary  evidence  of  the  dates 
of  muster  in  as  muster-out  roUs  are  of  the  dates  of  muster  out.  It 
is  not  the  primary  object  of  either  muster-and-pay  rolls  or  muster-out 
rolls  to  fix  the  date  of  muster  in.  They  can  not  therefore  be  used  to 
impeach  the  muster  in  as  fixed  by  the  muster-in  roll.  Official  records 
are  of  a  high  class  of  evidence  as  to  the  facts  which  are  recorded  in 
them  pursuant  to  the  special  objects  for  which  they  are  kept,  but 
thej  have  not  this  weight  as  evidence  with  reference  to  other  facts 
incidentally  recorded  in  them.''     C.  94^1,  Dec,  1900. 

XI A  17  a  (2)  (a)  [11  [a].  War  Department  Orders  of  May  15,  1894, 
section  XV,  paragraph  2,  provides  that  ^'official  copies  of  orders  and 
other  papers  shall  be  authenticated  solely  by  an  impressed  seal  of  the 
bureau  issuing  the  same,  e.  g.,  'Adjutant  General's  office,  official 
copy.'"  This  provision  was  intended  and  should  be  construed  to 
apply  to  copies  of  papers  to  be  used  in  the  administrative  business  of 
the  War  Department  and  not  as  evidence  before  courts,  either  civil 
or  military.  Copies  so  authenticated  would  not  be  admissible  as 
evidence  in  civil  courts.     They  would  have  to  be  authenticated  as 

»  See  G.  C.  M.  O.  8,  16,  Dept.  of  the  Platte,  1879;  do.  6,  id.,  1880;  do.  34,  Dept.  of 
Texas,  1879.  And  compare  Wheelden  v.  Wilson,  44  Maine.  11;  Marx  v.  People,  63 
Barb.,  618;  Fralich  v.  People,  65  id.,  48;  People  v.  McGungill,  41  Cal.,  429;  Clark  v. 
State,  50  Ind.,  514;    Fitzpatrick  v.  U.  S.,  178  U.  S.,  304. 

^  See  Wigmore  on  Evidence,  vol.  3,  sec.  2276. 

^  Ex  parte  Spies,  123  U.  S.,  180;  and  Jones  on  Evidence,  sec.  748,  1608;  and  Doug- 
lass Military  Law,  3d  ed.,  sec.  264;    and  Fitzpatrick  v.  U.  S.,  178  U.  S.,  315. 

'^  Seymour  v.  Lumber  Company,  58  Fed.  Rep.,  957;  also  Balliet  v.  U.  S.,  129  Fed. 
Rep.,  689;  also  Jacobs  v.  U.  S.,  161  Fed.  Rep.,  694. 

^  Compare  Rudolph  v.  Lane,  57  Ind.,  115;  McCrum  v  Corby,  15  Kans.,  117. 

^  That  a  court  can  not  arbitrarily  disbelieve  and  reject  from  consideration  the  state- 
ment, duly  in  evidence,  of  a  witness,  not  clearly  shown  to  have  perjured  himself,  is 
held  in  the  case  of  Evans  v.  George,  80  111.,  51. 

^  Greenleaf  Ev.,  16  ed.,  vol.  1,  sees.  491,  493.  Am.  and  Eng.  Ency.  of  Law,  1st  ed., 
vol.  20,  p.  513. 


534  DISCIPLINE  XI  A  17  a  (2)  (a)  [1]  [h]. 

rec[uired  by  section  882,  R.  S.  In  some  cases  copies  of  papers  for  use  as 
evidence  before  courts-martial  have  been  authenticated  m  the  manner 
specified  in  section  882,  but  in  the  majority  of  cases  they  have  been 
authenticated  by  the  official  stamp  of  the  bureau  in  the  manner  stated 
above.  In  the  absence  of  objection,  copies  so  authenticated  by  the 
bureau  stamp  would  be  legally  admissible  before  courts-martial;  and  as 
courts-martial  are  not  bound  to  follow  strictly  the  rules  of  evidence 
observed  by  the  civil  courts,  the  Secretary  of  War  could  legally  provide 
by  regulation  that  in  court-martial  trials  such  copies  would  be  admis- 
sible notwithstanding  the  objection  of  the  accused.^  0.  8471,  June, 
1900;  5914,  Apr.  5,  1901;  18723,  Oct.  13,  1905;  15656,  Bee.  29, 1908. 

XI A  17  a  (2)  {a)  [1]  \h].  The  enlistment  paper,  the  physical  exami- 
nation paper,  and  the  outline  card  are  original  writings  made  by  officers 
in  the  performance  of  duty  and  are  competent  evidence  of  the  facts 
recited  therein.  Copies,  authenticated  under  the  seal  of  the  War 
Department,  according  to  section  882,  R.  S.,  are  equally  admissible 
with  the  originals.2    P.  61,  218,  Aug.,  1893;   C.  8471,  June  23,  1900. 

XI  A  17  a  (2)  {a)  [1]  [c\.  Copies  of  records  of  courts-martial  authen- 
ticated under  the  seal  of  the  War  Department,  as  provided  hj  section 
882,  R.  S.,  are  admissible  in  evidence  ''equally  with  the  originals." 
R.  54,  77,  July,  1887. 

XI  A  17  a  (2)  (a)  [1]  [d].  Held  that  papers  which  contain  evidence 
of  title,  such  as  deeds,  conveyances,  etc.,  by  which  the  United  States 
holds  lands,  and  which  are  on  file  in  the  War  Department,  may  be 
proven  by  copies,  as  provided  by  section  882,  R.  S.  G.  784,  Dec, 
1894;  1577,  July,  1895. 

XI A  17  a  (2)  (a)  [1]  [e].  The  muster  rolls  on  file  in  the  War  Depart- 
ment are  official  records  and  copies  of  the  same,  duly  certified,  are 
evidence  of  the  facts  originally  entered  therein  and  not  compiled 
from  other  sources — subject  of  course  to  be  rebutted  by  proper  evi- 
dence that  they  are  mistaken  or  incorrect.  R.  3,  523,  Aug.,  1863; 
0.  17635,  Mar.  7,  1905.  So,  though  such  rolls  are  evidence  that  the 
soldier  was  duly  enhsted  or  mustered  into  the  service  and  is  therefore 
duly  held  as  a  soldier,  they  may  be  rebutted  in  this  respect  by  proof 
of  fraud  or  illegality  in  the  enlistment  or  muster  (on  the  part  of  the 
representative  of  the  United  States  or  otherwise) ,  properly  invalidat- 
ing the  proceeding  and  entitling  the  soldier  to  a  discharge.^  R.  8, 
488,  May,  I864. 

^  In  accordance  with  these  views,  the  following  regulation  by  the  Secretary  of  War 
was  published  in  G.  O.  91,  A.  G.  O.,  1900:  "Copies  of  any  records  or  papers  in  the 
War  Department  or  any  of  its  bureaus,  if  authenticated  by  the  impressed  stamp  of 
the  bureau  or  office  having  custody  of  the  originals  (e.  g.,  'Adjutant  General's  office, 
official  copy '),  may  be  admitted  in  evidence  equally  with  the  originals  thereof  before 
any  court-martial,  court  of  inquiry,  or  in  any  administrative  matter  under  the  War 
Department."    See  G.  O.,  198,  series  1908,  War  Department. 

2  Compare  Evanston  v.  Gunn,  99  U.  S.,  660;  Sandy  White  v.  U.  S.,  164  U.  S.,  100. 

^  But  note  in  this  connection  the  ruling  of  the  Supreme  Court  of  Massachusetts  in 
the  case  of  Hanson  v.  S.  Scituate,  115  Mass.,  336,  that  an  official  certificate  from  the 
Adjutant  General's  office  to  the  effect  that  certain  facts  appeared  of  record  in  that 
office  but  which  did  not  purport  to  be  a  transcript  from  the  record  itself,  and  was 
therefore  simply  a  personal  statement,  was  not  competent  evidence  of  such  facts. 

It  was  hem  by  the  United  States  Supreme  Court  m  Evanston  v.  Gunn,  9  Otto,  660, 
that  the  record,  made  by  a  member  of  the  United  States  Signal  Corps  of  the  state  of 
the  weather  and  the  direction  and  velocity  of  the  wind  on  a  certain  day,  was  competent 
evidence  of  the  facts  reported,  as  being  in  the  nature  of  an  official  record  kept  by  a 
public  officer  in  the  discharge  of  a  public  duty. 

But  that  the  entries  in  such  rolls  are  not  proof  of  the  commission  of  an  offense,  as 
desertion  for  example. 


DISCIPLINE  XI  A  17  a  (2)  (a)  [1]  [e]  [a].  535 

XI A  17  a  (2)  (a)  [1]  [e]  [A],  Absence  without  leave  of  a  soldier  may 
be  shown  by  extracts  from  the  muster  rolls,  covering  the  period  of 
absence,  authenticated  in  the  manner  specified.  Of  course,  if  the 
entry  be  that  the  soldier  deserted  or  was  in  desertion,  the  entry  would 
be  evidence  of  the  fact  of  absence  without  leave — the  intent  being  one 
for  the  determination  of  the  court  in  the  light  of  all  the  facts  and 
circumstances.  An  extended  absence  without  leave,  shown  in  this 
way,  was  unexplained,  together  with  the  fact  of  apprehension  in 
civilian  clothes  at  a  point  distant  from  the  station  of  the  soldier's 
company,  would,  it  is  believed,  justify  the  court  in  convicting  the 
soldier  oi  desertion.     C.  17635,  Mar.  7,  1905;  16965,  Oct  1,  1904. 

XI  A  17  a  (2)  (a)  [2].  A  compiled  statement  is  not  admissible  as 
evidence  before  courts-martial,  as  it  is  not  a  copy  of  an  original  record, 
but  simply  a  statement  of  what  is  therein  contained.  Held  that  its 
authentication  by  the  impressed  stamp  ''official  copy"  of  the  bureau 
or  office  having  custody  of  the  original  would  be  improper.*  C. 
15556,  Nov.  27,  1903. 

XI  A  17  a  (2)  (Jb)  [1].  General  orders  issued  from  the  War  Depart- 
ment or  Headquarters  of  the  Armv  may  ordinarily  be  proven  by 
printed  official  copies  in  the  usual  form.  The  court  will  in  general 
properly  take  judicial  notice  of  the  printed  order  as  genuine  and 
correct.  A  court-martial,  however,  snould  not,  in  general,  accept 
in  evidence,  if  objected  to,  a  printed  or  written  special  order,  which 
has  not  been  made  pubhc  to  the  Army,  without  some  proof  of  its 
genuineness  and  official  character. ^  B.  15,  216,  May,  1865;  C.  SJfll, 
Nov.  19,  1908,  and  Jan.  15,  1909. 

XI  A  17  a  (2)  (Jb)  [2].  The  Morning  Report  Book  is  an  original 
writing.  To  properly  admit  extracts  in  evidence,  the  book  should 
be  first  identified  by  the  proper  custodian,  and  the  extracts  then  not 
merely  read  to  the  court  by  the  witness,  but  copied  and  the  copies, 
properly  verified,  attached  as  exhibits  to  the  record  of  the  court. 
P.  61,  218,  Aug.,  1893. 

XI  A  17  a  (2)  (h)  [3].  Copies  of  pay  accounts  (charged  to  have 
been  duphcated)  are  admissable  in  evidence  where  the  accused  has 
by  his  own  act  placed  the  originals  beyond  the  reach  of  process,  and 
fails  to  produce  them  in  court  on  proper  notice.  R.  47,  269,  Aug., 
1883.  Similarly  lidd,  where  the  origmals  were  in  the  hands  of  a 
person  who  had  left  the  United  States  so  that  they  could  not  be 
reached,  on  notice  to  the  accused  to  produce  them  or  otherwise. 
R.  56,  6O4,  Sept.,  1888. 

XI  A  17  a  (2)  (Jb)  [4].  A  descriptive  fist  is  but  secondary  evidence 
and  not  admissible  to  prove  the  facts  recited  therein.  It  is  not  a 
record  of  original  entries,  made  by  an  officer  under  a  duty  imposed 
upon  him  by  law  or  the  custom  of  the  service,  but  is  simply  a  com- 
pilation of  facts  taken  from  other  records.  P.  61,  218,  Aug.,  1893; 
C.  15556,  Nov.  27,  1903;  15953,  Feb.  23,  1904;  16107,  Mar.  27,  1905. 

1 155  Mass.,  336;  and  Oakes  v.  Hill,  14  Pick.,  442;  and  20  Pick.,  345. 

2  See  par.  II  (G.  O.  198),  series  1908:  which  provides  that: 

"Copies  of  any  records  or  papers  in  the  War  Department  or  any  of  its  bureaus, 
or  at  the  headquarters  of  an  army,  corps,  division,  or  brigade,  or  of  a  territorial  division 
or  department,  if  authenticated  by  the  impressed  stamp  of  the  bureau  or  office  of 
the  War  Department,  or  of  the  headquarters  having  custody  of  the  originals  (e.  g., 
'  The  Adjutant  General's  Office,  official  copy, ')  may  be  admitted  in  evidence  ec^ually 
with  the  originals  thereof  before  any  military  court,  commission  or  board,  or  in  any 
administrative  matter  under  the  War  Department. " 


536  DISCIPLINE  XI  A  17  b  (i)  (a). 

XI  A  17  b  (1)  (a).  To  the  admission  in  evidence  of  a  letter  written 
and  signed  by  the  accused  (of  which  the  introduction  is  contested), 
proof  of  his  handwriting  is  necessary.  P.  61,  218,  Aug.,  1893.  Evi- 
dence of  handwriting  by  comparison  is  not  admissible  at  common 
law  except  where  the  standard  of  comparison  is  an  acknowledged 
or  proved  genuine  writing  already  in  evidence  in  the  case.  A  writing 
not  in  evidence  and  simply  offered  to  be  used  as  a  standard  is  not 
admissible.     R.  49,  566,  Dec.,  1885;  C.  25937,  Dec.  14,  1909. 

XI  A  17  b  (2)  (a).  In  view  of  the  embarrassment  which  must 
generally  attend  the  proof  before  a  court-martial  of  the  sending  or 
receipt  of  telegraphic  messages  by  means  of  a  resort,  by  suhprnna 
duces  tecum,  to  the  originals  in  possession  of  the  telegraph  company,* 
advised  that  the  written  or  printed  coj)y,  furnished  by  the  company 
and  received  by  the  person  to  whom  it  is  addressed,  should  in  general 
be  admitted  in  evidence  by  a  court-martial  in  the  absence  of  circum- 
stances casting  a  reasonable  doubt  upon  its  genuineness  or  correct- 
ness. But  where  it  is  necessary  to  prove  that  a  telegram  which 
was  not  received,  or  the  receipt  of  which  is  denied  and  not  proven, 
was  actually  duly  sent,  the  operator  or  proper  official  of  the  company, 
or  other  person  cognizant  of  the  fact  of  sending,  should  be  sum- 
moned as  a  witness.     B.  5,  458,  Dec,  1863;  14,  259,  Mar.,  1865. 

XI  A  17  c.  Affidavits,  taken  ex  parte,  and  not  as  depositions  under 
article  91,  are  in  no  case  admissible  as  evidence  on  a  trial  by  court- 
martial,  if  objected  to.^    R.  7,  113,  Feh.,  I864. 

XI  A  18.  feepeated  false  statements  of  the  accused  relative  to 
the  public  moneys  for  which  he  was  accountable  are  competent 
evidence  going  to  sustain  a  charge  of  embezzlement  under  article 
60.     R.  47,  475,  Sept,  188 4. 

XII  A  1.  Where  no  evidence  is  introduced,  the  general  rule  is  that 
the  finding  should  conform  to  the  plea.  R.  37,  409,  Mar.,  1876;  38, 
188,  July,  1876. 

XII  A  2.  The  finding  on  the  charge  should  be  supported  by  the 
finding  on  the  specification  (or  specifications),  and  the  two  findings 
should  be  consistent  with  each  other.  A  finding  of  guilty  on  the 
charge  would  be  quite  inconsistent  with  a  finding  of  not  guilty,  or 
guilty  without  attaching  criminality,  on  the  specification.  So,  a 
finding  of  guilty  upon  a  well-pleaded  specification,  apposite  to  the 
charge,  followed  by  a  finding  of  not  guilty  either  of  the  offense 
charged  or  some  lesser  offense  included  in  it,  would  be  an  incongru- 
ous verdict.  R.  4,  ^75,  Oct,  1863;  5,  576,  Jan.,  1864;  O.  12234, 
Mar.  19,  1902.  No  matter  how  many  specifications  there  may  be, 
it  requires  a  finding  of  guilty  or  not  guilty  on  but  one  specification 
(apposite  to  the  charge)  to  support  a  similar  finding  upon  the  charge. 
R.  9,  90,  May,  1864;  0.  17328,  Jan.  4,  1905. 

^  The  subject  of  the  extent  of  the  authority  of  the  courts  to  compel  telegraph  com- 
panies to  produce  original  private  telegrams  for  use  in  evidence  is  most  fully  treated 
m  an  essay  by  Henry  Hitchcock,  Esq.,  on  the  "Inviolability  of  Telegrams,"  pub- 
lished in  the  Southern  Law  Review  for  October,  1879. 

2  See  G.  C.  M.  O.  10,  Hdqrs.  of  Army,  1879;  G.  O.  21,  Dept.  of  the  Missouri,  1863; 
do.  17,  Dept.  of  Arkansas,  1866;  do.  19,  Third  Mil.  Dist.,  1867;  do.  49,  Dept.  of 
Dakota,  1871. 

As  applied  to  military  cases,  it  would  be  better  to  say,  in  lieu  of  the  expression 
"if  objected  to,  "  "unless  expressly  consented  to  by  the  accused  with  full  knowledge 
of  his  rights. " 


DISCIPLINE  XII  A  2  a.  537 

XII  A  2  a.  It  is  not  competent  for  a  court-martial  to  find  an 
accused  not  guilty  of  the  specification,  and  yet  guilty  of  the  charge, 
where  there  is  but  one  specification.  By  finding  him  not  guilty  of 
the  specification  they  acquit  him  of  all  that  goes  to  constitute  the 
ofTense  described  in  the  charge.  Where  the  court  beheve  that  the 
accused  is  guilty  of  the  charge,  but  not  precisely  as  laid  in  the  speci- 
fication, they  should  find  him  ^ilty  of  the  latter  with  such  excep- 
tions or  substitutions  as  may  be  necessary  to  present  the  facts  as 
proved  on  the  trial,  and  then  guilty  of  the  charge.  R.  5,  576,  Jan., 
1864. 

XII  A  3.  There  should  be  a  separate  and  independent  finding  upon 
each  charge  and  specification,  and  each  separate  finding  should  cover 
the  charge  or  specification  as  to  which  it  is  made;  so  that  if  any 
charge  or  specification  is  deemed  by  the  court  to  be  proved  only  in 
part,  the  finding  shall  show  specifically  what  is  found  to  be  proved 
and  what  not.     R.  5,  398,  Feb.,  1865;  16,  73,  Apr.,  1865. 

XII  A  4.  When  the  accused  pleads  guilty  to  the  specification  and 
not  guilty  to  the  charge,  the  court  is  called  upon  to  pass  on  the  ques- 
tion of  whether  or  not  the  specification  sustains  the  charge  as  a  matter 
of  law.  If  it  so  decides,  it  should  find  the  accused  guilty,  not  only 
of  the  specification  but  of  the  charge.  P.  4^,  471,  Oct.  19,  1891, 
C.  11092,  Aug.  16,  1901;  12177,  Mar.  8,  1902;  12234,  Mar.  19, 1902; 
12375,  Apr.  8,  1902. 

XII  A  5.  It  is  a  pecuUarity  of  the  finding  at  military  law  that  a 
court-martial,  where  of  opinion  that  any  portion  of  the  allegations 
in  a  specification  is  not  proved,  is  authorized  to  find  the  accused 
guilty  of  a  part  of  a  specification  only,  excepting  the  remainder;  or, 
in  finding  lum  guilty  of  the  whole  (or  any  part),  to  substitute  correct 
words  or  allegations  in  the  place  of  such  as  are  shown  by  the  evi- 
dence to  have  been  inserted  through  error.  And  provided  the  excep- 
tions or  substitutions  leave  the  specification  still  appropriate  to  the 
charge  and  legally  sufficient  thereunder,  the  court  may  then  properly 
find  the  accused  guilty  of  the  charge  in  the  usual  manner.  R.  5,  576, 
Jan.,  1864;  ^S,  188,  Aug.,  1866;  C.  18764,  Feb.  3,  1906;  25937,  Dec. 
14,  1909. 

XII  A  5  a.  Familiar  instances  of  the  exercise  of  the  authority  to 
except  and  substitute  in  a  finding  of  guilty  occur  in  cases  where,  in  the 
specification,  the  name  or  rank  of  the  accused  or  some  other  person 
is  erroneously  designated,  or  there  is  an  erroneous  averment  of  time 
or  place,  or  a  mistaken  date,  or  an  incorrect  statement  as  to  amount, 
quantity,  quality,  or  other  particular,  of  funds  or  other  property,  etc. 
R.  13,  398,  402,  Feb.,  1865;  14,  228,  Mar.,  1865;  26,  4S5,  Feb.,  1868. 

XII  A  5  b.  In  finding  guilty  upon  a  specification,  to  except  from 
such  finding  the  word  or  words  which  express  the  gravamen  of 
the  act  as  charged  and  found  is  contradictory  and  irregular.  As, 
from  a  finding  of  guilty  on  a  specification  to  a  charge  of  fraud  under 
article  60,  to  specially  except  the  word  ''fraudulent"  or  ''fraudu- 
lently," while  at  the  same  time  finding  the  accused  guilty  generally 
upon  the  charge.     R.  11,  4U  44  o^^^  81,  Oct.,  1864- 

XII  A  6  a.  The  practice  of  making  exceptions  and  substitutions  in 
the  findings  is  well  illustrated  by  the  finding — authorized  at  mifitary 
law  when  called  for  by  the  evidence  ^ — or  a  lesser  hindred  offense 

1  See  13  Op.  Atty.  Gen.,  460. 


538  DISCIPLINE   XII  A  6  b. 

included  as  a  constituent  element  in  the  specific  offense  cTmrged}  Of  this 
form  of  verdict  the  most  familiar  instance  is  the  finding  of  guilty  of 
absence  without  leave  under  a  charge  of  desertion.  A  full  acquittal  of 
desertion  includes,  of  course,  an  absence  without  leave  if  it  is  mvolved 
in  it;  but  where  the  evidence  falls  short  of  estabhshing  a  desertion  but 
shows  an  unauthorized  absenting  of  himself  by  the  accused,  he  may 
and  should,  be  convicted  of  absence  without  leave,  as  his  actual 
offense.  In  arriving  at  this  conclusion,  the  findings  on  the  specifica- 
tion and  charge  should  be  consistent,  and  the  finding  on  the  former 
should  be  such  as  to  support  the  latter.  In  their  finding  of  guilty 
upon  the  specification,  the  court  should  in  terms  .except  from  its 
appKcation  such  words  of  the  specification  as  allege  or  describe 
desertion  exclusively,  and  substitute  words  describing  the  lesser 
offense;  the  words  ^'did  desert,"  for  example,  being  excepted,  and 
the  words  ''did  absent  himself  without  authority"  being  substituted. 
The  finding  on  the  charge  should  regularly  be  ''not  guilty,  but  guilty 
of  absence  without  leave."  ^  R,  7,  357, 616,  6S4,  Mar.  and  May,  1864; 
9,  24,  26,  46,  and  49,  May,  1864;  IS,  655,  May,  1865;  O.  12177,  Mar. 
11,  1902;  12234,  Mar.  19,  1902;  12375,  Apr.  8,  1902;  12577,  May  7, 
1902;  18934,  Dec.  11,  1905. 

XII  A  6  b.  It  is  a  further  peculiarity  of  the  finding  at  military  law 
that,  where  an  accused  is  charged  with  "conduct  unbecoming  an 
officer  and  a  gentleman,"  or  with  any  specific  offense  made  punishable 
by  the  Articles  of  War,  and  the  court  is  of  opinion  that  while  the 
material  allegations  in  the  specification  or  specifications  are  substan- 
tially made  out,  they  do  not  fully  sustain  the  charge  as  laid  but  do 
clearly  establish  the  commission  of  a  neglect  of  military  duty  or  a 
disorder  in  breach  of  military  discipline  as  mvolved  in  the  acts  alleged, 
the  accused  may  properly  be  found  guilty  of  the  specification  (or 
specifications)  and  not  guilty  of  the  charge  but  guilty  of  "conduct  to 
the  prejudice  of  good  order  and  military  discipline."  Such  a  form 
of  finding  is  now  common  in  our  practice^  especially  where  the  charge 
is  laid  under  article  61,  and  its  legality  is  no  longer  questioned.  R. 
5,  265,  Nov.,  1863;  9,  656,  Sept,  1864;  11,  87,  Nov.,  1864;  29,  299, 
Oct.,  1869;  P.  64,  193,  Mar.,  1894. 

XII  A  6  c.  The  authority  thus  to  find,  however,  has  not  been 
extended  beyond  the  case  indicated  in  the  last  paragraph :  the  reverse, 
for  example,  of  this  form  of  finding,  has  never  been  sanctioned.  A 
finding  or  guilty  of  a  certain  specific  offense,  under  a  charge  of  another 
specific  offense,  or  under  a  charge  of  "conduct  unbecoming  an  officer 
and  a  gentleman,"  or  of  "conduct  to  the  prejudice  of  good  order  and 
military  discipline,"  would  be  wholly  irregular  and  invalid.  Thus  a 
finding  of  guilty  of  disobedience  of  orders  (or  of  a  violation  of  article 
21)  under  a  charge  of  mutiny  in  violation  of  article  22,  or  a  finding  of 
drunkenness  on  duty  (or  of  a  violation  of  article  38)  under  a  charge  for 
a  drunken  disorder  laid  under  article  61  or  62,  would  be  not  only  unau- 
thorized but  now  almost  unprecedented,  and,  if  such  a  finding  were 
made,  it  could  scarcely  fail  to  be  formally  disapproved.  And  so  of  a 
finding  of  "conduct  unbecoming  an  officer  and  a  gentleman"  under  a 
charge  of  "conduct  to  the  prejudice  of  good  order  and  military  dis- 

*  Compare  Reynolds  v.  People,  83  111.,  479,  and  note  the  similar  authority  given  in 
criminal  cases  in  the  United  States  courts,  by  sec.  1035,  R.  S. 

2  A  simple  finding,  however,  of  guilty  of  absence  without  leave,  though  an  irregular 
form,  would  amount  in  law  to  an  acquittal  of  the  higher  offense  charged.  Compare 
Morehead  v.  State,  34  Ohio  St.,  212. 


DISCIPLINE  XII   A  7.  539 

cipline."  B.  11,  274,  Dec,  1864;  16,  532,  Sept,  1865;  C.  15114, 
Aug.  15,  1903. 

XII  A  7.  Held  that  a  court  may  not  substitute  a  finding  of  larceny 
on  a  charge  of  burglary.  C.  12177,  May  15, 1902;  12334,  ^pr-  28  and 
May  3,  1902;  12689,  "May  I4,  1902.  Held  further  that  when  a  charge 
is  laid  under  a  specific  article  a  finding  under  any  other  specific 
article  is  wholly  irreo^lar.     C.  15114,  Aug.  15,  1903. 

XII A  8  a  (1).  To  justify  a  conviction  of  a  capital  offense  of  offering 
violence  against  a  superior  officer  under  the  twenty-first  article  of  war 
it  should  be  made  to  appear  in  evidence  that  the  accused  knew  or 
believed  that  the  person  assaulted  was  in  fact  an  officer  in  the  Army 
and  was  his  "superior"  in  rank.*     R.  29,  485,  Dec,  1869. 

XII  A  8  a  (2).  Under  a  charge  of  a  violation  of  article  21  in  offering 
violence  to  a  superior  officer,  it  should  be  alleged  and  proved  that  the 
officer  assaulted  was  at  the  time  "  in  the  execution  of  his  office."  R.  1 , 
462,  Dec,  1862;  9,  90,  May,  I864. 

XII  A  8  a  (3) .  Under  a  charge  of  a  disobedience  of  the  order  of  a 
superior  officer  in  violation  of  article  21,  it  should  bo  alleged,  and 
should  appear  from  the  evidence  introduced,  that  the  order  or  ''com- 
mand" was  ''lawful."  R.27,  488,  Jan.,  1869.^  An  officer  or  soldier 
is  not  punishable  under  this  article  for  i:lisobeying  an  unlawful  order. 
R.  26,  603,  June,  1868.  But  the  order  of  a  proper  superior  is  to  be 
presumed  to  be  lawful,  and  should  be  obeyed,  where  it  is  not  clearlj 
and  obviously  in  contravention  of  law.  Unless  the  ^  illegality  is 
unquestionable,  he  should  obey  first,  and  seek  redress,  if  entitled  to 
any,  afterwards.  A  military  inferior  in  refusing  or  failing  to  complj 
with  the  order  of  a  superior  on  the  ground  that  the  same  is,  in  nis 
opinion,  unlawful,  does  so,  of  course,  on  his  own  personal  responsi- 
bihty  and  at  his  own  risk.    R.  26,  256,  Dec,  1867. 

XIIA8a(3)  (a).  To  justify,  from  a  miHtary  point  of  view,  a 
military  inferior  in  disobeying  the  order  of  a  superior  the  order  must 
be  one  requiring  something  to  be  done  which  is  palpably  a  breach  of 
law  and  a  crime  or  an  injury  to  a  third  person,  or  is  of  a  serious  char- 
acter (not  involving  unimportant  consequences  only)  and,  if  done, 
would  not  be  susceptible  of  being  righted.  An  order  requiring  the 
performance  of  a  military  duty  or  act  can  not  be  disobeyed  with 
impunity  unless  it  has  one  of  these  characters.  If  not  triable  under 
the  twenty-first  article  such  disobedience  may  be  tried  under  the 
sixty-second.  Held  that  there  could  be  no  more  dangerous  principle 
in  the  government  of  the  Army  than  that  each  soldier  should  deter- 
mine for  himseK  whether  an  order  requiring  a  military  duty  to  be 
performed  is  necessary  or  in  accordance  with  orders,  reflations, 
decision  circulars,  or  custom,  and  may  disobey  the  order  if,  in  his 
judgment  (taking,  of  course,  all  risks  in  case  his  judgment  should  be 
erroneous),  it  should  not  be  necessary,  or  should  be  at  variance  with 
orders,  regulations,  decision  circulars,  or  custom.  It  is  his  duty  to 
obey  such  order  first,  and  if  he  should  be  aggrieved  thereby  he  can 
seek  redress  afterwards. "^     C.  97,  July,  1894- 

1  See  G.  0.  34,  Dept.  of  Virginia,  1863, 

^  The  civil  responsibility  is  another  matter.  Civil  courts  have  sometimes  made 
allowance  for  the  requirements  of  military  discipline,  but,  if  they  should  not,  the 
military  obligation  would  remain  unimpaired.  The  Boldier,  in  entering  the  service, 
has  voluntarily  submitted  himself  to  this  double  and  possibly  conflicting  liability. 
The  evil  of  an  undisciplined  soldiery  would  be  far  greater  than  the  injustice  (apparent 
rather  than  actual)  of  this  principle. 


540  DISCIPLINE  XII  A  9  a. 

XII  A  9  a.  Where  a  court  in  its  findings  substituted  the  words 
''under  the  influence  of  intoxicating  hquor"  for  the  word  ''di-unk"  in 
a  speciiication  under  article  38,  and  found  ''not  guilty"  of  the  charge 
but  "guilty"  of  conduct  to  the  prejudice,  etc.,  remarked,  that  such  a 
discrimination  as  this  finding  apparently  attempts,  can  not  safely  be 
encouraged  in  the  disposition  of  cases  arising  under  article  38.  The 
object  of  the  article  is  manifestly  to  enforce  that  measure  of  sobriety 
which  is  essential  to  the  full  and  calm  control  of  both  the  mental  and 
physical  faculties,  and  thus  to  protect  the  military  administration 
from  the  great  miscliief  to  which  it  may  be  liable  from  the  blunders 
and  excesses  of  officers  attempting  to  perform  their  duties  under  the 
influence  of  drink.  Any  intoxication  which  is  sufficient  to  sensibly 
impair  the  rational  and  full  exercise  of  the  mental  and  physical 
faculties  is  drunkenness  within  the  meaning  of  the  article ;  and  should 
the  condition  of  an  officer  accused  of  that  offense  not  have  partaken 
of  this  description,  it  is  better  that  he  be  acquitted  than  that  courts  by 
endeavoring  to  mark  degrees  of  drunkenness  should  attempt  distinc- 
tions, which  in  practice  would  tend  to  defeat,  in  great  measure,  the 
purpose  of  the  article.  Recommended,  therefore,  that  the  findings  in 
this  instance  be  disapproved.*  R.  36,  ^4,  Apr.,  1875;  37, 118, 152,and 
673,  Nov.,  1875,  to  June,  187.6;  38,  272,  Aug.,  1876;  4I,  339,  July, 
1878.  It  is  not  a  sufficient  defense  to  a  charge  of  drunkenness  on 
duty  to  show  that  the  accused,  though  under  the  influence  of  liquor, 
contrived  to  get  through  and  somehow  perform  the  duty.  R.  37,  118, 
Nov.,  1875;    C.  25940,  Jan,  15,  1910. 

XII  A  10  a.  It  is  no  defense  to  a  charge  of  "sleeping  on  post"  that 
the  accused  had  been  i>reviously  overtasked  by  excessive  guard  duty ;  ^ 
or  that  an  imperfect  discipline  prevailed  in  the  command  and  similar 
offenses  had  been  allowed  to  pass  without  notice;  ^  or  that  the  accused 
was  irregularly  or  informally  posted  as  a  sentinel.^  Evidence  of  such 
circumstances,  however,  may  in  general  be  received  in  extenuation 
of  the  offense ;  or,  after  sentence,  may  form  the  basis  for  a  mitigation 
or  partial  remission  of  the  punishment.^  An  officer  who  places  or 
continues  a  soldier  on  duty  as  a  sentinel  when  from  excessive  fatigue, 
infirmity,  or  other  disability,  he  is  incompetent  to  perform  the  impor- 

^  This  opinion  and  recommendation  were  concurred  in;  see  the  order  publishing 
the  case,  G.  C.  M.  O.  33,  War  Department,  1875. 

Article  38  has  been  repeatedly  construed  in  general  orders.  In  G.  O.  No.  53, 
headquarters  Army  of  the  Potomac,  of  1862,  the  general  commanding,  in  stating  that 
he  finds  it  hard  to  understand  the  doubts  sometimes  entertained  '  'as  to  the  degree  of 
intoxication  which  unfits  a  soldier  for  the  performance  of  his  duties,"  observes: 

*  'Unfitness  may  be  more  or  less  complete;  but  to  be  intoxicated  at  all  unfits  a  man 
either  to  give  an  order  or  to  execute  it. " 

In  a  subsequent  general  order  of  the  same  Army,  No.  98,  of  1862,  it  is  said : 

*  'Nothing  can  be  more  erroneous  than  to  suppose  that  as  long  as  an  officer  is  not 
drunk  to  insensibility — a  condition,  moreover,  in  which  he  is  far  less  apt  to  do  mischief 
than  when  he  is  simply  drunk  enough  to  be  indiscreet — he  is  not  drunk  at  all .  *  *  * 
The  fullest  possession  of  his  faculties  by  every  officer  is  necessary  to  fit  him  to  discharge 
his  duties  properly.  These  duties  are  not  so  simple  as  to  be  within  the  competency  of 
a  half  sober  person. " 

See  also  G.  C.  M.  O.  21,  Dept.  of  the  Mo.,  1870;  do.  48,  Dept.  of  Va.  &  N.  C,  1864; 
do.  33,  Dept.  of  the  Platte,  1871. 

2  See  G.  O.  74,  Army  of  the  Potomac,  1862. 

3  G.  O.  10,  Middle  Mil.  Dept.,  1865;  do.  166,  Dept.  of  the  South,  1864. 

4  See  G.  O.  10,  62,  Dept.  of  Va.  &  N.  C,  1863;  do.  2,  Northern  Dept.,  1865;  do.  67, 
Dept.  of  Washington,  1866;  do.  9,  Dept.  of  the  South,  1870;  G.  C.  M.  O.  44,  Dept.  of 
Texas,  1875. 


DISCIPLINE  XII  A  11  a.  541 

tant  duties  of  such  a  position,  will  ordinarily  render  himself  hable  to 
charjres.i     C.  18036,  May  23,  1905;  20325,  Sept.  4,  1906. 

XII  Alia.  It  is  no  defense  whatever  to  a  charge  under  article  61, 
that  between  the  date  of  the  refusal  by  the  United  States  to  pay  the 
assignee  of  a  duplicated  voucher  and  the  date  of  the  arraignment  of 
the  officer  or  of  the  service  of  the  charges,  the  money  due  has  been 

Kaid,  or  somehow  secured  or  made  good  to  the  assignees,  or  that  he 
as  been  induced  to  withdraw  or  suspend  his  claim  against  the  officer.^ 
P.  50,  45,  Oct.,  1891. 

XII  A  12  a.  Held  that  a  specification  alleging  homicide,  but  not 
adding  ''with  malice  aforethought,"  or  in  terms  to  that  effect,  was 
pleading  of  manslaughter  only  and  thus  \vithin  article  62.  R.  47,  385, 
July,  1884. 

XII  A  12  b.  It  is  a  defense  to  a  charge  under  article  62  of  the 
embezzlement  defined  in  section  5490,  R.  b.,  as  consisting  in  a  failure 
to  safely  keep  public  moneys  by  an  officer  charged  with  the  safe- 
keeping of  the  same,  that  the  funds  alleged  to  have  been  embezzled 
were,  without  fault  on  the  part  of  the  accused,  lost  in  transportation 
or  fraudulentlv  or  feloniously  abstracted.     R.  1,  ^55,  Nov.,  1862.^ 

XII  B  1  a.  tJnder  the  Executive  order  of  March  30,  1898,  previous 
convictions  ''whatever  their  number  within  the  prescribed  period," 
are  admissible  to  aid  the  court  in  determining  upon  the  proper  meas- 
ure of  punishment,^  whether  the  limit  of  punishment  is  within  or 
gi'eater  than  the  punishing  power  of  an  inferior  court;  but  if  greater 
the  prescribed  limit  can  only  be  increased  on  account  of  such  convic- 
tions. (See  p.  58,  Manual,  1908.)  The  limits  of  punishment  are, 
however,  operative  only  "in  time  of  peace."  (Act  of  Sept.  27, 1890; 
Manual,  1908,  p.  51.)  In  time  of  war,  therefore,  courts-martial  are 
remitted  to  the  discretion  conferred  upon  them  by  the  Articles  of  War. 
C.  5781,  Feb.,  1899. 

XII  B  1  a  (1).  Previous  convictions  except  of  desertion  on  a  trial 
for  desertion,  not  adjudged  during  the  current  pending  enlistment  of 
the  soldier  but  incurred  during  a  prior  enlistment,  are  not  admissible. 
R.  56,  305,  July,  1888;  P.  61;  225,  Aug.,  1893.  Nor  is  evidence  of  a 
previous  conviction  by  a  civil  court  admissible  in  this  procedure." 
P.  26,  380,  Sept.,  1888;  C.  I4I6I,  Feb.  13,  1903. 

XII  B  1  a  (1)  (a).  Evidence  of  a  previous  conviction  is  not  admis- 
sible where  the  findings  and  sentence  were  disapproved  by  the  proper 
reviewdng  authority.  R.  52,  121,  508,  liar,  and  Sept.,  1887.  As  to 
all  trials  (except  those  had  by  a  summary  court  where  the  post  com- 
mander acts  as  the  court,  and  no  approval  of  the  sentence  is  required 
by  law),  the  term  "previous  conviction"  means  a  conviction  to  which 
effect  has  been  given  by  the  approval  of  the  sentence  by  competent 
authority.^    P.  58,  210,  Mar.,  1893;  G.  11830,  Bee.  30,  1901. 

XII  B  1  a  (1)  (Jb).  A  court-martial  refused  to  take  into  considera- 
tion evidence  of  previous  convictions  offered  by  the  judge  advocate 

^  See  G.  O.  15,  Army  of  the  Potomac,  1861;  do.  62,  Dept.  of  Va.  &  N.  C,  1863; 
G.  C.  M.  O.  50,  Dept.  of  Texas,  1872;  do.  80,  Dept.  of  the  Missouri,  1875. 

^  See  the  remarks  of  the  reviewing  authority  in  the  cases  published  in  G.  C,  M,  O. 
88  of  1886  and  56  of  1893. 

^  This  provision  is  repeated  in  the  new  Executive  order  of  June  12,  1905,  prescrib- 
ing limits  of  punishment,  published  in  G.  0. 204,  War  Dept. ,  Dec.  15, 1908,  as  amended 
by  G.  O.  77,  War  Dept.,  June  10,  1011. 

^  See  S.  O.  No.  23,  Dept.  of  the  Columbia,  Feb.  1, 1905  (G.  C.  M.  O.  Rec.  No.  42626). 

«  See  Circ.  10,  A.  G.  O.  1803. 


542  DISCIPLINE  XII  B  1  a  (i)  (c). 

on  the  grounds — (1)  that  the  accused  had  been  previously  punished 
for  each  offense;  (2)  that  he  had  not  introduced  any  testimony  in 
support  of  his  character,  and,  in  the  absence  of  such  testimony,  the 
rules  of  evidence  preclude  attacking  the  same.  Held  that  such  objec- 
tions were  not  well  taken.^     R.  50,  6Jf7,  Aug.,  1886. 

XII  B  1  a  (1)  (c).  The  proper  evidence  of  a  previous  conviction 
is  the  record  of  the  trial  or  a  duly  authenticated  copy  of  the  record 
or  of  the  order  of  promulgation.  R.  52,  508,  Sept.  8,  1887.  Copy  of 
the  summary  court  record  should  be  certified  by  the  post  commander 
or  adjutant  to  be  a  true  copy.  P.  64,  36,  Feh.  20,  1894;  65,  170, 
June,  1894.  The  certificate  of  the  company  commander  to  the  fact 
of  conviction  as  shown  by  the  company  records  is  not  a  legal  substi- 
tute. P.  65,  170,  June,  1894-  When  the  proof  produced  is  the  copy 
furnished  the  company  or  other  conomander  it  should  be  returned 
to  him  and  a  copy  attached  to  the  record  of  the  general  court-martial 
before  which  the  trial  is  had.  C.  208,  Sept.,  1894-  The  statement 
of  service  required  by  Army  Regulations  to  be  furnished  the  conven- 
ing authority  with  general  charges  is  not  evidence  of  previous  convic- 
tions.    P.  39,  459,  Mar.  20,  1890. 

XII  B  1  a  (1)  ((^).  As  the  date  of  approval  fixes  the  date  of  con- 
viction. Held  that  the  date  of  approval  is  the  date  which  should  be 
considered  in  the  receipt  of  evidence  of  previous  convictions.  G. 
11830,  Bee.  30,  1901. 

XII  Bib.  Held  that  after  an  acquittal  evidence  of  previous  con- 
factions  should  not  be  presented  to  the  court.  G.  12459,  Apr.  19, 
1902;  12579,  May  2,  1902. 

XII  B  2.  In  a  case  where  its  sentence  is  discretionary,  a  court- 
martial  may  impose  any  punishment  that  is  sanctioned  by  custom 
of  the  service,  although  (m  cases  of  soldiers)  the  same  may  not  be 
included  in  the  list  of  the  more  usual  punishments  contained  in  the 
Army  Regulations.  R.  4,  131,  217,  Sept.  and  Oct.,  1863;  22,  555, 
Jan.,  1867;  24,  192,  479,  Jan.  and  Apr.,  1867. 

XII  B  2  a.  The  order  prescribing  maximum  punishments  also 
provides  for  certain  substitutions  of  fjunishment.  The  purpose  of 
these  provisions  is  not  only  to  determine  the  measure  but  also  the 
kind  of  punishment,  which  should  be  considered  authorized,  so  far 
as  the  offenses  specified  in  the  order  are  concerned.  Thus  where  the 
prescribed  limit  is  forfeiture  and  confinement,  a  reprimand  in  lieu 
thereof  cannot  legally  be  adj'udged.     G.  436,  Oct.,  1894- 

XII  B  2  b.  While  a  specific  punishment  may  be  recommended  in 
orders  to  be  adjudged  by  courts-martial  in  a  certain  class  of  cases, 
it  is  not  competent  to  order  such  courts  to  adopt  a  particular  form 
of  sentence  in  any  case.  The  duty  and  discretion  of  courts-martial 
in  the  imposition  of  punishments  are  prescribed  and  defined  by  the 
Articles  of  War.     R.  31,  354,  May,  1871. 

XII  B  2  c.  Wliile  upon  the  conviction  of  an  officer  or  soldier 
under  a  charge  of  a  crime,  such  as  manslaughter,  robbery,  larceny, 
etc.,  to  the  prejudice  of  good  order  and  military  discipline,  the  statute 
of  the  United  States  or  State,  providing  for  its  punishment  as  a  civil 
offense,  may  well  be  referred  to  as  indicating  the  nature  and  extent 
of  the  punishment  deemed  proper  for  the  same  by  the  civil  authori- 

^  A  statute  imposing  heavier  penalties  on  a  person  convicted  of  a  felony,  if  twice 
before  convicted  of  a  crime,  is  not  unconstitutional,  as  putting  twice  in  jeopardy. 
McDonald  v.  Mass.,  180  U.  S.,  311. 


DISCIPLINE   XII   B  2  d.  543 

ties,  the  punishment  to  be  imposed  by  the  court-martial  should  never- 
theless be  measured  less  by  the  criminality  of  the  act  as  a  cbnl  offense 
than  by  its  gravity  as  a  breach  of  mihtary  discipline.  Thus  where  a 
soldier,  having  been  brought  to  trial  before  a  civil  court  for  the  homi- 
cide of  another  soldier,  and  inadeauately  sentenced,  was  subsequently 
tried  by  a  general  court-martial  lor  the  military  offense  involved  in 
his  act,  held  that  the  court  would  only  properly  impose  upon  him  a 
penalty  proportioned  to  the  injury  done  to  the  good  order  and  dis- 
cipline oT  the  service,  and  should  not,  by  an  excessive  punishment, 
attempt  to  compensate  for  the  overlement  judgment  of  the  civil 
court.     R.  41,  188,  Apr,  1878;  C.  1^851,  July  13,  1903. 

XII  B  2  d.  Drunkenness  on  duty  on  occasions  other  than  those 
specified  in  the  order  prescribing  maximum  punishments  are  offenses 
under  the  thirty-eighth  article,  for  which  maximum  punishments 
have  not  been  prescribed.  They  remain,  therefore,  punishable  at 
the  discretion  of  the  court-martial  as  authorized  by  the  Articles  of 
War  and  the  custom  of  the  service.     P.  64,  44^,  Apr.,  1894. 

XII  B  2  e.  Held  in  a  case  arising  in  1898  in  the  Department  of 
Porto  Rico  under  the  fifty-eighth  article  of  war  that  the  provision  in 
the  fifty-eighth  article  of  war  that  punishment  ''in  any  such  case  shall 
not  be  less  than  the  punishment  provided  for  the  Hke  offense  by  the 
laws  of  the  State,  Territory  or  district  in  which  such  offense  may  have 
been  committed, "  did  not  refer  to  the  laws  of  Porto  Rico  at  that  time 
or  to  the  laws  of  foreign  Governments  where  penalties  might  possibly 
be  of  a  nature  entirely  foreign  to  American  modes  of  punishment. 
Held  further  that  a  court  can  properly  under  such  circumstances 
proceed  to  fix  such  punishment  as  may  seem  adequate  to  the  offense. 
C.  5267,  Nov.  7,  1898;  5848,  Feb.  9,  1899. 

XII  B  3  a.  The  best  approved  practice  of  military  courts  in 
determining  upon  their  sentences  is  believed  to  be  as  follows:  For 
each  member  to  write  a  sentence  and  deposit  it  with  the  judge  advo- 
cate; and  (no  sentence  having  been  adopted  by  a  majority  of  votes) 
for  the  court,  after  all  the  sentences  have  been  read  to  it  by  the  judge 
advocate,  to  proceed  to  vote  upon  them  in  the  order  of  their  severity, 
beginning  with  the  least  severe,  until  some  one  of  those  proposed  is 
agreed  upon  by  a  majority  of  votes.^  It  is  not  essential,  indeed,  that 
this  form  of  voting  should  be  pursued — it  being  open  to  the  court, 
in  its  discretion,  to  adopt  a  different  one.  B.  21,  551,  July,  1866; 
C.  15627,  Dec.  7,  1903. 

XII  B  3  b.  After  a  conviction  each  member  of  the  court  should 
vote  for  a  punishment  appropriate  to  the  offense  of  which  the  accused 
has  been  found  guilty  without  regard  to  whether  or  not  he  believes 
the  accused  innocent  or  guilty.  Held  that  a  refusal  by  a  member  to 
vote  a  punishment  after  a  conviction  is  a  neglect  of  duty  under  the 
sixty-second  article  of  war.     R.  30,  145,  Mar.  10,  1870. 

XII  B  3  c.  Care  should  be  taken  that  there  be  no  variance  in 
the  statement  of  the  name,  etc.,  of  the  accused,  between  the  finding 
or  sentence  and  the  charges.     R.  2,  545,  June,  1863. 

XII  B  3  d.  A  court-martial,  in  imposing  the  punishment  of  repri- 
mand, will,  if  adding  anything  in  regard  to  its  execution,  properly 
direct  that  the  reprimand  be  administered  by  the  commander  who 
convened  the  court.     A  sentence  to  be  reprimanded  by  an  officer 

^  The  practice  here  referred  to  is  now,  of  course,  modified  to  conform  to  the  require- 
ments of  the  act  of  July  27,  1892,  excluding  the  judge  advocate  from  closed  sessions. 


544  DISCIPLINE  XII  B  3  e  (l). 

inferior  to  the  convening  authority  is  not  in  accordance  with  the 
approved  practice  of  the  service.  It  is  not  necessary  or  desirable, 
however,  that  the  court  should  direct  as  to  the  execution  of  the 
sentence,  the  same  being  the  proper  province  of  the  reviewing  officer. 
R.  12,  18,  Oct.,  1864. 

XII  B  3  e  (1).  Pay  can  not  be  forfeited  (in  a  sentence)  by  impli- 
cation. If  the  court  intends  to  forfeit  pay,  the  penalty  of  forfeiture 
should  be  adjudged  in  express  terms  in  the  sentence.^  No  other  pun- 
ishment, imposable  by  court-martial — neither  a  sentence  of  death, 
dismissal,  suspension,  dishonorable  discharge,  nor  imprisonment — 
involves  per  se  a  forfeiture  or  deprivation  of  any  part  of  the  pay  or 
allowances  due  the  party  at  the  time  of  the  approval  or  taking  effect 
of  the  sentence.2  R.  5,  409,  Dec,  1863;  16,  676,  Nov.,  1865;  28, 
338,  Jan.,  1869;  30,  52,  Sept.,  1869;  32,  236,  Jan.,  1872;  P.  54, 192, 
June,  1892;  62,  340,  Nov.,  1893.  ^       ^ 

XII  B  3  e  (2).  A  court-martial,  in  forfeiting  pay  by  sentence, 
should  so  fix  the  amount  to  be  forfeited  that  the  same  will  clearly 
and  unmistakably  appear  from  the  sentence  itself  without  a  reference 
to  any  order  or  other  source  of  information  being  necessary.  So 
held  that  a  sentence  which  required  a  soldier  to  forfeit  an  amount  of 
pay  sufficient  to  reimburse  the  United  States  for  the  value  of  certain 
property  appropriated  by  him,  without  fixing  the  value  of  such 
property,  was  irregular,  and  might  properly  be  disapproved  unless 
corrected  by  the  court  on  being  reassembled  for  a  revision.^  R.  37, 
186,  Oct.,  1868. 

XII  B  3  e  (3).  Where  a  soldier,  on  enfisting,  was  paid  an  amount 
of  money  as  local  bounty,  and  this  money,  under  an  existing  regula- 
tion of  the  provost  marshal  general's  office,  adopted  with  a  view  to 
prevent  desertion  and  for  the  safekeeping  of  the  funds,  was  taken 
from  the  possession  of  the  soldier  by  the  mifitary  authorities,  and  the 
soldier  presently  deserted  and  was  subsequently  apprehended  and 
brought  to  trial,  held  that  the  court  was  not  authorized  to  forfeit 
this  money  by  its  sentence;  the  same  being  private  property  of  the 
soldier  held  by  the  authorities,  not  as  money  due  him  by  the  United 
States  but  as  a  special  bailment  and  trust  for  his  personal  benefit. 
R.  22,  642,  Mar.,  1867. 

XII  B  3  e  (4).  An  officer  on  trial  apphed  to  have  certain  witnesses 
summoned  from  a  distance  and  a  continuance  granted  to  await  their 
appearance.  To  this  the  court  consented  on  his  making  an  affidavit 
setting  forth  material  matter  expected  to  be  established  by  the  wit- 
nesses. When  these  appeared  it  was  found  that  they  could  give  no 
material  testimony  upon  the  points  indicated  in  the  affidavit.  The 
court,  in  making  up  its  sentence  upon  conviction,  proposed  to  impose 
upon  the  accused  (in  connection  with  imprisonment)  a  fine  of  two 

1  Compare  Elliott  v.  Railroad  Co.,  9  Otto,  573. 

2  This  principle  is  well  illustrated  by  the  opinion  of  the  Attorney  General  (13 
Opins.,  103),  concurring  with  an  opinion  of  the  Judge  Advocate  General  in  the  case 
ot  Maj.  Herod,  where  it  was  held  that  the  fact  that  the  accused  had  been  sentenced 
to  death  on  conviction  of  murder  did  not  affect  his  right  to  his  pay  from  the  date 
of  his  arrest  to  that  of  the  final  action  taken  on  the  sentence  by  the  President.  And 
see  the  more  recent  opinion  of  the  Attorney  General  of  November  9,  1876  (15  Op., 
175),  to  the  effect  that  the  pay  of  officers  and  seamen  of  the  Navy  is  not  divested  by 
the  operation  of  sentences  of  imprisonment  or  suspension,  but  only  when  forfeited  in 
si-)ecific  and  express  terms  in  the  sentence. 

3  Compare  case  in  G.  C.  M.  O.  65,  Dept.  of  Dakota,  1880. 


DISCIPLINE  XII  B  3  f  (l)  (a),  545 

hundred  dollars  as  the  estimated  cost  to  the  Government  of  procur- 
ing the  attendance  of  the  said  witnesses.  Held  that  the  facts 
stated  did  not  constitute  a  proper  basis  for  the  imposition  of  such 
fine  as  a  punishment  for  the  offense  for  which  the  officer  was  convicted. 
His  conouct  in  the  matter,  if  deemed  so  culpable  as  to  constitute  a 
mihtary  offense,  should  be  made  the  subject  of  a  separate  charge  to 
be  investigated  on  a  separate  trial.     R.  29,  829,  Oct.,  1869. 

XII  B  3  f  (1)  {a).  A  court-martial,  in  sentencing  a  noncommis- 
sioned officer  to  be  reduced  to  the  ranks,  is  not  empowered  to  direct 
that  when  reduced  he  be  transferred  to  another  regiment  or  company.* 
R.  11,  205,  Dec,  1864. 

XII  B  3  f  (2).  Loss  of,  or  reduction  in,  files  or  steps  (i.  e.,  relative 
rank),  in  the  fist  of  the  officers  of  his  grade,  is  a  recognized  le^al  pun- 
ishment by  sentence  of  court-martial,  in  a  case  of  a  commissioned 
officer.  Like  disqualification,  it  belongs  to  the  class  of  continuing 
punishments.2  R.  21,  382,  May,  1866;  51,677,  Mar.,  1887;  P.  P, 
380,  July,  1890;  56,  434,  Dec,  1892. 

XII  B  3  f  (3)  (a).  The  punishment  of  susi)ension,  as  imposed  by- 
sentence,  is  usually  in  the  form  of  a  suspension  from  ranlc  or  from 
command  for  a  stated  term,  sometimes  accompanied  by  a  suspension 
from  pay  for  the  same  period.  Suspension  from  rank  includes  sus- 
pension from  command.^    R.  7,  8,  Jan.,  1864- 

XII  B  3  f  (3)  (6).  Like  dismissal,  suspension  takes  effect  upon  and 
from  notice  of  the  approval  of  the  sentence  officially  communicated 
to  the  officer,*  either  by  the  promulgation  of  the  same  at  his  station 
or,  where  he  is  absent  therefrom  by  authority,  by  the  delivery  to  him 
of  a  copy  of  the  Order  of  approval  or  other  form  of  official  personal 
notification  of  the  fact  of  the  approval.  R.  27,  241,  Sept.,  1868;  33, 
109,  June,  1872;  38,  341,  Oct.,  1876. 

XII  B  3  f  (3)  (c).  Suspension  from  rank  does  not  involve  a  status 
of  confinement  or  arrest.  R.  7,  242,  Feb.,  186 4.  In  sentencing  an 
ofl^icer  to  be  suspended  from  rank,  it  is  indeed  not  unusual  for  the 
court  to  require  that  he  be  confined  during  the  term  of  suspension  to 
his  proper  station,  or  that  of  his  regiment,  etc.,  i.  e.,  that  the  sentence 
be  executed  there.  Where  this  is  not  done,  while  the  suspended 
officer  is  not  entitled  to  a  leave  of  absence,  it  can  not  affect  the  execu- 

*  The  authority  to  order  the  transfer  of  soldiers  is  expressly  vested  by  the  Army 
Regulations  in  certain  military  commanders. 

2  See  12  Op.  Atty.  Gen.,  547. 

The  effect  of  this  punishment  is  to  deprive  the  officer  of  such,  relative  right  of  pro- 
motion, as  well  as  right  of  command,  and  of  precedence  on  courts  or  boards  and  in 
selecting  quarters,  etc.,  as  he  would  have  had  had  he  remained  at  his  original  num- 
ber.    Such  effect  continues  unless  the  sentence,  pending  its  execution,  is  remitted. 

This  punishment  has  sometimes  been  remarked  upon  as  an  objectionable  one, 
apparently  mainly  on  account  of  the  inequaUty  of  its  effect  upon  other  officers  of  the 
grade  of  the  officer  sentenced.  Thus,  where  an  officer  is  reduced  a  certain  number 
of  files,  those  below  whom  he  is  placed  are  advanced  while  those  below  him  gain 
nothing.  (See  G.  C.  M.  O.  25,  War  Dept.  1873;  do.  2,  Dept.  of  Dakota,  1873.)  Where 
he  is  reduced  to  the  foot  of  the  list,  this  objection  does  not  apply;  this  form  of  the 
punishment,  however,  where  the  list  is  a  long  one,  is  extreme  and  severe;  more 
severe,  often,  than  suspension  for  a  fixed  term. 

^McNaghten,  Annotations  of  the  Mutiny  Act,  p.  17,  et  seq. 

*  Suspension,  as  a  punishment  for  a  noncommissioned  officer,  is  not  authorized  in 
terms  m  art.  101,  nor  is  it  contemplated  in  the  Army  Regulations.  It  has  been 
adjudged  in  but  rare  cases,  and  can  not  be  regarded  as  sanctioned  by  principle  or 
usage.  But  see  a  comparatively  late  instance  in  G.  C.  M.  O.  33,  Dept.  of  the  East, 
1872. 

31106°— 12 35 


546  DISCIPLINE   XII  B   3   g  (l). 

tion  of  his  sentence  to  grant  him  one,  and  leaves  of  absence  are  not 
unfreqtiently  granted  under  such  circumstances.  R.  36,  226,  Feb., 
1875. 

XII B  3  g  (1).  In  imposing  a  sentence  of  confinement  at  a  military 
prison,  the  court  should  properly  add  '^at  such  place  as  the  proper 
authority  may  designate/'  or  words  to  that  effect.  To  direct  that 
the  place  of  confinement  be  designated  by  an  officer  inferior  to  the 
convening  authority  is  irregular  and  improper.  R.  4,  356,  and  5,  309, 
Nov.,  1863;  9,  600,  Sept.,  I864. 

XII  B  3  g  (2).  It  is  now  established  by  a  long  series  of  precedents 
that  a  general  court-martial  is  authorized  to  adjudge,  by  sentence,  a 
term  of  imprisonment  to  extend  beyond  the  end  of  the  pending  term 
of  enlistment  of  the  soldier,  or  beyond  his  legal  period  of  service. 
Thus,  for  example,  where  the  term  of  the  enlistment  of  the  accused 
has  still  a  year  to  run,  the  court — the  gravity  of  the  offense  justifying 
it — may  sentence  him  to  an  imprisonment  for  two  years  or  longer; 
so,  it  may  sentence  him  to  be  dishonorably  discharged  (thus  itself 
discontinuing  his  period  of  service),  and  then  confined  for  a  desig- 
nated term.  And  such  sentences  may  be  executed  with  the  same 
legality  as  any  other  sentence  of  imprisonment.  In  the  former  case 
the  soldier  will  not  be  entitled  to  be  released  from  the  confinement  at 
the  end  of  his  enlistment,  nor,  in  the  latter,  will  he,  upon  the  execution 
of  the  discharge,  become  so  entitled.  In  each  case,  upon  the  determi- 
nation of  the  enlistment  or  service,  the  party  contmues  to  be  held 
under  his  sentence  not  as  a  soldier  but  as  a  civilian.  R.  31,  89,  Dec, 
1870,  353,  May,  1871;  38,  513,  Mar.,  1877;  39,. 509,  Apr.,  1878, 
Where  the  approval  of  a  sentence  of  confinement  in  a  case  of  a  soldier, 
in  which  proceedings  had  been  duly  commenced  pending  his  term  of 
enlistment,  was  not  promulgated  till  after  such  term  had  actually 
expired,  but  no  discharge  had  been  given  to  the  soldier  before  pro- 
mulgation, held,  that  it  would  be  legal  to  subject  him  to  the  confine- 
ment adjudged  by  the  sentence.  R.  19,  600,  Apr.,  1866;  0.  11156, 
Sept.  12,  1901;  13378,  Sept.  30,  1902;  15133,  Aug.  18,  1903;  15158, 
Aug.  25,  1903. 

XII  B  3  g  (3).  Sentences  of  imprisonment  tiU  a  fine,  also  imposed 
by  the  sentence,  is  paid,  are  sanctioned  by  the  usage  of  the  service. 
Held  that  it  is  proper  in  such  sentences  to  affix  a  limit  beyond  which 
the  confinement  shall  not  be  continued  in  any  event.  R.  13,  j^72, 
Mar.,  1865;  20,  16,  Oct.,  1865;  32,  47,  Oct.,  1871. 

XII  B  3  g  (4).  The  fact  that  the  accused  has  been  confined  for  an 
unreasonable  period  awaiting  trial  may  properly  be  taken  into  con- 
sideration by  the  court  in  estimating  the  period  of  confinement  to  be 
imposed.     R.  28,  IO4,  Aug.,  1868. 

XII  B  3  h.  The  punishment  of  ball  and  chain,  though  sanctioned 
by  the  usage  of  the  service,  should  be  imposed  only  in  extreme  cases. 
Its  remission  has  in  general  been  recommended  by  this  office  except 
in  cases  of  old  offenders  or  aggravated  crimes,  where  deemed  service- 
able as  a  means  of  obviating  violence  or  preventing  escape.  R.  26, 
508,  631,  662,  664,  Apr.  and  July,  1868;  28,  16,  93,  July  and  Aug., 
1868,  and  501,  532,  Apr.,  1869.  This  penalty  has  (as  have  also  those 
of  shaving  the  head  and  drumming  out  of  the  service)  become  rare 
in  our  Army.^     0.  3773,  June,  1898. 

*  See  ninety-eiglith  article  of  war,  which  forbids  sentences  calling  for  flogging, 
branding,  marking,  or  tattooing. 


DISCIPLINE   XII   B  3  i.  547 

XII B  3  i.  Courts-martial  are  required  to  adjudge  dismissal  upon 
officers  of  the  Army  by  the  tliird,  sixth,  eighth,  thirteenth,  fourteenth, 
fifteenth,  eighteenth,  twenty-sixth,  twenty-seventh,  twenty-eighth, 
thirty-eighth,  fiftieth,  fifty-fourth,  fifty-ninth,  sixtj^-first,  and  sixty- 
fifth  articles  of  war,  upon  conviction  of  the  specific  offenses  therein 
described.  In  articles  8  and  50  the  punishment  of  dismissal  is 
referred  to  as  ''cashiering" — a  term  which  has  almost  passed  out  of 
use  in  our  service,  and  when  employed  means  no  more  than  dismissal. 
R.  7,  601,  June,  1864;  H,  563,  Oct,  1873. 

XII B  4  a.  Military  duty  is  honorable,  and  to  impose  it  in  any 
form  as  a  punishment  must  tend  to  degrade  it,  to  the  prejudice  of 
the  best  interests  of  the  service.  Thus  advised  that  sentences  impos- 
ing ''guard  duty"  for  certain  periods  should  properly  be  disapproved. 
R.  4,  402,  Dec,  1863;  26,  507,  Apr.,  1868.  So  held  of  a  sentence 
imposing,  in  connection  with  a  term  of  confinement  in  charge  of  the 
guard,  the  penalty  of  ''sounding  all  the  bugle  calls  at  the  post  during 
the  same  period.  R.  37,  4^9,  May,  1876.  So  held  in  regard  to  a 
sentence  which  required  a  deserter — not  for  the  purpose  of  making 
good  the  time  lost  by  his  desertion  but  as  a  punishment — to  serve 
for  an  additional  year  after  the  expiration  of  his  term  of  enlistment.^ 
R.  14,  396,  Apr.,  1865. 

XII  B  4  b.  Held  that  a  sentence  can  not  legally  extend  the  time 
of  the  service  of  a  soldier  as  such  beyond  the  term  for  which  he 
ori^ally  contracted.  P.  4^,  HO,  Mar.,  1890.  Thus  the  existing  law 
fixing  the  term  of  a  soldier's  enlistment  at  five  years, ^  a  court-martial 
can  have  no  power  to  prolong  it  by  adding  to  such  term  an  additional 
period  by  way  of  punishment.  So  a  sentence  "to  make  good,  at  the 
expiration  of  his  term,  a  period  of  57  days  during  which  his 
services  were  lost  to  the  United  States  by  being  held  in  hospital  on 
account  of  pistol  wound  received  by  him  while  in  the  commission  of 
a  disorder  in  violation  of  the  sixty-second  article  of  war,"  held  unau- 
thorized and  properly  disapproved.^    R.  50,  413,  June,  1886. 

XII  B  4  c.  Held  that  a  court-martial  can  not  legally  sentence  a 
soldier  to  deposit  any  part  of  his  pay.  P.  32,  252,  and  283,  May  8 
and  14,  1889;  34,  22,  and  124,  Ju^  18  and  23,  1889. 

XII  C.  The  remarking  by  the  court,  in  connection  with  the  finding 
or  sentence,  unfavorably  upon  an  officer  or  soldier  (other  than  the 
accused)  whose  conduct  is  exhibited  by  the  testimony,  or  upon  an 
act  or  practice  deemed  proper  to  be  noted  in  the  interests  of  military 
discipline,  though  now  comparatively  unusual,  is  sanctioned  by  the 
authorities  as  permissible  and  regular  in  a  proper  case.*  R.  28,  626, 
May,  1869;  29,  216,  Aug.,  1869. 

XII D.  A  court-martial  may,  in  connection  with  its  judgment, 

Eroperly  animadvert  upon  a  witness  not  only  as  testifying  falsely, 
ut  as  giving  evasive  and  disingenuous  testimony;  but  the  power  to 

^  See — as  in  accord  with  the  spirit  of  this  paragraph — the  following  orders:  G.  C. 
M.  0.  329,  War  Dept.,  1864;  G.  O.  17,  Dept.  of  the  Missouri,  1861;  do.  56,  Army  of 
the  Potomac,  1862;  do.  3,  Dept.  of  the  Northwest,  1864;  do.  49,  Middle  Dept.,  1864. 

2  Now  fixed  at  three  years  by  the  act  of  Aug.  1,  1894. 

^  That  the  liability  to  make  ^ood  time  lost  by  desertion  results  from  a  violation  of 
the  enlistment  contract,  that  it  is  independent  of  any  punishment  which  may  be 
adjudged,  and  that  it  need  not  be  adjudged  or  mentioned  in  the  sentence. 

*  See  Simmons,  sees.  699-707;  Kennedy,  196,  7;  De  Hart,  182, 3;  O'Brien,  268.  In 
Jekyll  V.  Moore,  2  Bos.  &  Pul.  341,  the  expression  of  opinion  by  a  court-martial,  in 
acquitting  an  accused,  that  the  prosecution  had  been  actuated  by  malice,  v>'as  held 
not  to  constitute  a  libel. 


548  DISCIPLINE   XII  E  1. 

thus  animadvert  upon  witnesses  should  be  exercised  with  caution. 
P.  J^2,  156,  July,  1890. 

XII E  1.  A  recommendation  of  the  accused  to  clemency  is  no  part 
of  the  official  record  of  the  trial,  or  of  the  proceedings  of  the  court 
as  such,  but  is  merely  the  personal  act  of  the  members  who  sign  it. 
It  should  not  therefore  be  incorporated  with  the  record  proper,  but 
should  be  appended  to  or  transmitted  with  the  same  as  a  separate  and 
independent  paper.    R.  12,  672,  Sept.,  1865. 

XII E  1  a.  It  is,  of  course,  always  discretionary  with  a  member  of  a 
court-martial  whether  he  will  make  or  join  in  a  recommendation  to 
clemency.  Members,  however,  will,  in  general,  do  well  to  refrain 
from  subscribing  recommendations  where  the  testimony  on  the  trial 
as  to  the  merits  of  the  case  or  the  character  of  the  accused  fails 
clearly  to  justify  a  remission  or  mitigation  of  the  punishment.  Weak 
and  ill-considered  recommendations  have  not  unfrequently  given  rise 
to  severe  criticism  on  the  part  of  reviewing  officers.  Thus  in  General 
Court-Martial  Order  92,  Headquarters  of  Army,  1867,  the  Secret aiy 
of  War  expresses  himself  as  ^'surprised  to  find  that  any  officer  of 
the  court  could  recommend  remission  or  commutation  of  the  sen- 
tence of  dismissal  in  a  case  where  the  conduct  of  the  officer  tried 
was  as  reprehensible  as  that  of"  the  accused.^  Members,  in  offering 
recommendations,  should  be  careful  to  state  the  specific  grounds  upon 
which  they  base  the  same.^     R.  33,  4I8,  Oct.,  1872. 

XII  E  1  b.  Members  of  a  court-martial,  desiring  to  recommend 
an  accused  to  clemency  need  not  all  sign  the  same  statement.  There 
may  be,  in  any  case,  two  or  more  separate  recommendations  each 
signed  by  different  members.^    R.  37,  121,  Nov.,  1875. 

XII  E  1  c.  Where  the  members  of  a  court-martial  who  had 
joined  in  a  recommendation  which  had  been  appended  to  the  record 
and  regularly  transmitted  to  the  reviewing  authority,  applied  to  have 
the  same  withdrawn  on  the  ground  that,  because  of  information 
since  received,  their  opinions  had  been  changed,  advised  that  such  a 
proceeding  would  be  exceptional  and  irregular,  and  that  the  prefer- 
able course  would  be  to  file  with  the  record  the  application  and  state- 
ment of  j:he  members  so  that  the  same  might  be  referred  to  and  con- 
sidered in  connection  with  the  recommendation.  R.  33,  580,  Dec, 
1872. 

XII  F.  Where,  after  a  sentence  had  been  duly  adjudged,  and  the 
record  forwarded  to  the  reviewing  officer,  a  majority  of  the  members 
of  the  court  transmitted  to  him  a  written  statement  to  the  effect  that 
the  sentence  was  intended  to  have  a  certain  meaning  not  conveyed 

*  In  G.  O.  36  of  1843,  the  Secretary  of  War,  Hon.  J.  M.  Porter,  in  reviewing  a  case, 
remarks  as  follows:  "The  practice  of  the  members  of  a  court-martial  first  finding  an 
officer  guilty,  and  then  recommending  him  for  clemency,  is  to  be  deprecated.  ^  It  is 
an  endeavor,  too  frequently  made,  to  transfer  the  responsibility  of  their  finding  to 
the  Department  of  War  when  it  should  rest  upon  the  court  itself."  And  see  G.  O. 
342,  War  Dept.,  1863;  G.  C.  M.  O.  27,  id.  1871. 

2  In  G.  O.  70,  Dept.  of  Dakota,  1870,  Maj.  Gen.  Hancock,  the  reviewing  authority, 
observes:  "As  the  members  of  the  court  are  silent  with  regard  to  the  considerations 
by  which  they  were  influenced  in  making  their  recommendation  in  the  prisoner's 
behalf,  it  is  impossible  for  the  reviewing  autnority  to  determine  whether  their  reasons 
for  making  the  recommendation  were  sufficient  to  justify  a  mitigation  of  the  sentence. 
No  consideration  can,  therefore,  be  paid  to  it.  The  sentence  is  approved,  and  will  be 
duly  carried  into  execution." 

^  A  case  in  which  there  were  two  recommendations — one  signed  by  a  single  mem- 
ber— is  published  and  remarked  upon  in  G.  C.  M.  O.  92,  War  Dept.,  1875. 


DISCIPLINE  XIII  A.  549 

by  its  terms — i.  e.,  was  not  intended  to  operate  as  a  forfeiture  of 
certain  pay  clearly  forfeited  by  it  as  recorded — lield  that  such  irregu- 
lar statement  could  have  no  effect  as  a  correction  of  the  sentence;  that 
the  proposed  correction  could  only  be  made  by  the  court  itself,  after 
having  been  reconvened  to  reconsider  the  sentence.  R.  S3,  5^7, 
Sept,  1872. 

XIII  A.  It  is  clearly  contemplated  by  the  statute  law  (see  the  one 
hundred  and  thirteenth  and  one  hundred  and  fourteenth  articles  of 
war,  taken  from  the  old  ninetieth  article;  also  the  later  provision  in- 
corporated in  section  1199,  R.  S.)  that  a  court-martial  shall  make  a 
formal  record  of  its  proceedings,  and  the  Army  Regulations  and  Court- 
Martial  Manual  direct  as  to  the  substance  and  form  of  the  record  in 
certain  particulars.  Upon  such  basis,  the  record  of  a  court-martial 
has  come  to  be,  in  our  practice,  a  full  report  and  recital  of  the  details 
of  the  trial  in  each  case,  including  all  the  testimony  introduced.*  R,  2^, 
540,  May,  1867;  27,  6^7,  May,  1869;  32,  130,  Nov.,  1871.  _ 

XIII  A  1.  It  is  the  better  practice  that  all  the  proceedings — even 
those  that  are  irregular — which  transpire  in  connection  with  a  trial 
or  at  a  revision  should  be  set  out  in  the  record  for  the  information 
of  the  reviewing  authority.  R.  26,  251,  Dec,  1867.  It  is,  however, 
not  necessary  to  encumber  a  record  by  spreading  upon  it  documents, 
or  other  writing  or  matter,  excluded  oy  the  court.  But  the  charac- 
ter of  the  writing  and  the  grounds  upon  which  it  was  ruled  out  should 
be  specified.     R.  49,  6I4,  Dec,  1885. 

XIII  B.  The  copy  of  the  convening  order,  directed,  by  Army  Regu- 
lations to  be  "set  out"  in  each  case,  should  properly  be  prefixed  to 
the  proceedings,  as  constituting  the  initial  authority  for  the  existence 
and  action  of  the  court.  R.  32,  130,  Nov.,  1871;  83,  391,  Oct.,  1872. 
This  order  should  of  course  be  complete,  and  should  exhibit,  by  its 
heading  and  its  subscription,  that  it  has  proceeded  from  a  commanding 
officer  competent  to  order  the  court.  R.  23,  636,  Aug.,  1867.  Where 
several  cases  are  tried  by  the  same  court,  a  separate  copy  of  the  order 
should  be  incorporated  in  the  record  in  each  case :  Only  to  prefix  a 
single  copy  to  the  first  of  a  series  of  records  attached  together  is 
irregular  and  in  violation  of  the  regulation  as  well  as  the  general  rule 
that  every  record  should  be  "complete  in  itself."  R.  4i  ^07,  Feb., 
I864.  Where  subsequent  orders  have  been  issued,  adding  or  reliev- 
ing members  or  a  judge  advocate,  or  otherwise  modifying  the  original 
convening  order,  copies  of  these  should  follow  the  original  or  be  else- 
where incorporated  in  the  record.  R.  13,  384,  Fel.,  1865.  In  their 
absence  it  may  not  be  possible  to  determine  on  the  face  of  the  record 
whether  the  officers  who  composed  the  court  on  the  trial  were  actually 
or  legally  detailed  therefor,  or  whether  the  prosecuting  judge  advo- 
cate, or  the  judge  advocate  who  authenticates  the  proceedings,  was 
so  detailed.  R.  21,  488,  June,  1866;  G.  5323,  Nov.,  1898.  In  con- 
nection, however,  with  any  order  making  a  change  in  the  original 
detail  of  members  or  substituting  a  new  judge  advocate,  the  record 
should  note  the  fact  of  the  new  member  taking  his  seat,  or  new  judge 
advocate  commencing  to  officiate,  according  to  the  order,  on  a  certain 
day.     R.  29,  6O4,  Jan.,  1870. 

XIII  B  1 .  Held  that  the  record  of  proceedings  of  a  general  court- 
martial  should  show  the  authority  under  which  each  member  of  the 
court  acts  as  such.     C.  5331,  Nov.  16,  1898. 

*  Testimony  taken  before  inferior  courts-martial  need  not  be  reduced  to  writing. 


550  DISCIPLINE  xm  C  1. 

XIII  C  1.  The  record  should  show  that  the  court  met  and  organized 
pursuant  to  the  order  or  orders  constituting  it.  It  is  necessar}' ,  j^rs^, 
to  the  due  organization  of  a  general  court-martial  that  there  should 
assemble  at  the  time  and  place  indicated  in  the  order  at  least  a 
quorum,  i.  e.,  five,  of  the  officers  detailed  as  members.  And  the 
record  should  show  that  at  least  five  members  were  present  and  act- 
ing, not  only  at  the  original  assembling  and  proceeding  to  business 
as  well  as  at  the  formal  organization  after  the  right  of  challenge  has 
been  fully  exercised,  but  also  at  every  day's  session  throughout  the 
trial  to  the  end.  R.  3,  413,  Aug.,  1863;  6,  384,  Sept.,  I864.  The 
record  of  the  first  assembling  should  specify  the  members  present  by 
name,  rank,  etc.  A  statement  to  the  effect  that  the  same  members 
were  present  as  at  a  previous  trial  by  the  same  court  is  improper,  as 
being  in  contravention  of  the  rule  that  the  record  of  each  case  should 
be  an  entiretv  and  not  made  up  as  to  any  particular  by  a  reference 
to  a  record  01  a  previous  case.  R.  3,  402,  Aug.  I4, 1863.  It  is  not, 
however,  irregular  to  state  at  the  commencement  of  any  day's  pro- 
ceedings— subsequent  to  the  day  of  the  first  session  of  the  court  in 
any  case — that  all  the  members  and  the  judge  advocate,  without 
specially  naming  them,  were  present.  R.  21,  351,  Apr.,  1866;  26, 
616,  Am.,  1868.  The  record  should  also  show  the  presence  of  the 
accused  at  the  time  of  the  organization  of  the  court  for  his  trial,  as 
also  at  all  the  material  stages  and  portions  of  the  proceedings.^  R. 
24,  488,  Apr.,  1867. 

In  the  record  of  the  proceedings  of  a  court-martial  at  its  organiza- 
tion for  the  trial  of  a  case  the  officers  detailed  as  members  and  judge 
advocate  should  be  noted  by  name  as  present  or  absent.  In  the 
record  of  the  proceedings  of  subsequent  sessions  the  following  form  of 
words  should  DC  used,  subject  to  such  modifications  as  the  facts  may 
require:  'Present,  all  the  members  of  the  court  and  the  judge 
advocate."  When  the  absence  of  an  officer  who  has  not  qualified,  or 
who  has  been  relieved  or  excused  as  a  member,  has  been  accounted 
for,  no  further  note  should  be  made  of  it.^    P.  46,  395,  Apr.,  1891. 

XIII  C  2.  The  record  should  show  that  the  order  or  orders  con- 
vening the  court  and  detailing  the  members  were  read  to  the  accused 
or  communicated  to  him,  and  that  he  was  afforded  an  opportunity  of 
objecting  to  any  member;  that  is  to  say,  that  the  privilege  of  ctial- 
lenge,  accorded  and  defined  by  the  eighty-eighth  article  of  war  was 
extended  to  him.  R.  2,  83,  Mar.,  1863;  C.  16471,  June  I4,  1904. 
This  testing  of  the  members  is  the  second  essential  to  the  due  organiza- 
tion of  the  court,  and,  though  the  phraseology  of  the  question  put  to 
the  accused,  or  of  his  answer  thereto,  need  not  be  given  in  the  record, 
it  should  clearly  appear  either  that  he  had  (or  made)  no  objection, 
or  if  he  made  any,  what  it  was.  R.  9,  166,  May,  I864.  Where  a 
specific  challenge  is  offered,  it  should,  preferably,  be  recorded  in  the 
terms  in  which  it  is  expressed  by  the  accused;  and,  in  connection 
with  each  challenge,  the  record  snould  set  forth  the  remarks  of  tlie 
member,  if  any,  and  the  action  of  the  court,  as  also,  if  an  issue  be 
joined  on  the  challenge,  the  evidence,  if  any,  introduced,  and  the 

'  Compare  Long  v.  State,  52  Miss.,  23.  Should  the  accused  escape  or  depart  from 
the  jurisdiction  of  the  court,  the  record  should  so  state,  at  the  first  session  at  which  he 
is  absent,  and  should  the  court  continue  the  trial  of  the  case  the  record  should  at 
each  session  show  the  absence  of  the  accused. 

2  See  Circular  5,  A.  G.  O.,  1891. 


DISCIPLINE  XIII  c  2  a.  651 

argument  had.  Where  a  member  is  added  to  the  court  at  a  subse- 
quent stage  of  the  proceedings,  the  record  should  simihirl}^  show  that 
tne  accused  was  afforded  an  opportunity  of  objecting  to  him,  and  set 
forth  the  action  taken  if  objection  was  made.  R.  8,  662,  July,  I864. 
It  may  be  added  that  while,  with  the  convening  order,  any  subse- 
quent orders  by  wliich  the  original  detail  may  have  been  modified, 
snould  be  read  to  the  accused — the  fact  that  other  orders  relating  to 
the  court,  but  not  to  its  personnel,  such  as  an  order  changing  the 
place  of  meeting  or  an  order  authorizing  the  court  to  sit  without 
regard  to  lioui-s,  may  not  have  been  so  read,  will  not  constitute  an 
irregularity.  It  is  usual,  however,  and  proper,  to  read  all  such  orders, 
equally  with  those  relating  to  the  composition  of  the  court,  in  the 
presence  of  the  accused.     S.  39,  289,  Oct.,  1877. 

XIII C  2  a.  As  a  general  court-martial  controls  its  own  proceedings, 
the  right  of  challenge  guaranteed  to  the  accused  by  the  statute  can  oe 
exercised  by  him  only  when  the  opportunity  to  do  so  is  extended  by 
the  court,  and  this  is  true  whether  the  opportunity  to  exercise  the 
right  of  challenge  was  extended  to  the  accused  by  the  court  as  a 
result  of  his  request,  or  on  the  initiative  of  the  court.  There  is  no 
obligation  on  the  part  of  the  accused  to  demand  his  statutory  rights. 
The  obligation  is  on  the  court  to  see  that  the  exercise  of  them  is 
accorded  to  him.  If,  therefore,  the  record  of  the  proceedings  does 
not  show  affirmatively  that  the  opportunity  to  exercise  this  statutory 
right  of  challenge  was  accorded  the  accused,  no  intendment  can  be 
made  in  favor  01  the  regularity  of  the  record,  as  the  extension  to  the 
accused  of  the  opportunity  to  exercise  this  statutory  right  is  vital 
to  the  regularity  of  the  proceedings,  and  the  record  of  it  must  be 
shown  affirmatively.     O.  18764,  Oct.  23,  1907;  28190,  Apr.  24, 1911. 

XIII  C  3.  The  record  should  show,  as  the  final  essential  to  the  due 
organization  of  the  court,  that  the  members  and  judge  advocate  were 
qualified  by  being  duly  sworn.  And  this  should  be  shown  in  the 
record  of  every  case  tried  by  the  same  court,  since  the  court  and 
judge  advocate  must  be  sworn  independently  and  anew  for  each 
trial.^  R.  35,  8,  Apr.,  1873.  The  approved  form  for  recording  this 
proceeding  is:  ''The  members  of  the  court  and  the  judge  advocate 
were  then  duly  sworn."  Any  statement,  however,  will  be  legally 
sufficient  from  wliich  it  can  be  gathered  by  the  reviewing  officer,  or 
presumed,  that  the  members  and  judge  advocate  were  in  fact  qualified 
as  required  by  arts.  84  and  85.  Where  an  absent  member  joins  or  a 
new  member  is  added  to  the  court,  or  the  first  judge  advocate  is 
relieved^  and  a  new  judge  advocate  is  detailed,  at  a  stage  of  the 
proceedings  subsequent  to  the  original  organization  and  qualifying, 
the  record  should  show  that  such  member  or  judge  advocate,  before 
acting,  was  sworn  as  above  indicated.^-  R.  3,  548,  Aug.,  1863;  9,  222, 
June,  1864;  O.  5323,  Nov.,  1898. 

XIII  D.  The  record  should  further  set  forth  the  arraignment  of  the 
accused  on  the  charges  and  specifications,  with  the  plea  or  pleas  made. 

/Compare  Coffin  v.  Wilbour,  7  Pick.,  150.  "It  is  not  considered  a  compliance 
with"  Army  Regulations,  directing  that  "the  court  is  to  be  sworn  at  the  comi 
mencement  of  each  trial, "  "to  call  several  prisoners  into  court  at  the  same  time 
and  swear  the  members  of  the  court  once  before  them  all."  G.  O.  60,  War  Dept., 
1873. 

2  The  inversion  of  the  proper  order  of  swearing  the  court  and  judge  advocate  was 
held  by  the  Attorney  General  (13  Op.,  374)  not  to  have  invalidated  the  proceedings  of 
a  naval  court-martial 


552  DISCIPLIKE  XIII  E. 

If  special  pleas  are  interposed,  the  issue  joined  and  action  taken  upon 
the  same  should  be  clearly  stated.  R.  2,  83,  Mar..  1863;  15,  546, 
July,  1865;  C.  5166  and  5187,  Oct.,  1898.  The  charges  and  specifica- 
tions should  properly  be  embodied  in  the  record  instead  of  being 
referred  to  as  annexed.    R.  14,  39,  Jan.,  1865. 

XIII  E.  The  record  of  a  trial  by  court-martial  should  include  a  rec- 
ord of  meetings  where  no  business  is  transacted,  together  with  a  state- 
ment of  the  reason  why  none  was  transacted.     R.  4S,  209,  Jan.,  1884- 

XIII  F.  It  is  not  customary  to  take  notice  in  the  record  of  a  mere 
recess;  but  if  a  recess  be  noted  at  all,  it  should  appear  from  the 
record  that,  on  the  reassembling,  the  members,  judge  advocate,  and 
accused  were  duly  present.     P.  57,  4^8,  Jan.,  1893. 

XIII  G.  Among  the  minor  points  held  by  the  Judge  Advocate 
General,  in  connection  with  the  subject  of  the  form  of  the  record,  are 
the  following:  That  the  several  stages  of  the  proceedings  of  the 
court  should  appear  in  the  record  in  the  proper  order;  thus,  that  the 
swearing  of  the  court  should  not  be  recorded  before  the  statement 
as  to  whether  the  accused  objected  to  any  of  the  members,  etc. 
R.  11,  1,  Oct.,  1864'  That,  in  its  statement  of  the  opening  of  each 
day's  session,  the  record  may  well  mention,  if  such  was  the  fact,  that 
the  proceedings  of  the  previous  day  or  session  (if  any  were  had  in 
the  same  case)  were  read  and  approved.  R.  25,  349,  Feb.,  1868; 
34,  167,  Mar.,  1873.  Such  a  reading,  however,  though  desirable 
as  giving  the  court  an  opportunity  to  make  corrections,  is  often 
not  resorted  to.     R.  21,  679,  Nov.,  1866. 

XIII  H.  Where  the  court  is  reassembled  for  the  purpose  of  a 
revision  of  its  proceedings  in  any  particular,  the  record  should  formally 
recite  all  that  is  ordered  and  done  as  a  new  and  independent  chap- 
ter of  the  historjr  of  the  case  tried.  The  record  of  a  revision  will 
properly  begin  with  setting  forth  a  copy  of  the  order  reconvening 
the  court,  and  will  show  that  at  least  ^ve  members  assembled,  together 
with  the  judge  advocate,  and,  where  the  correction  required  is  such  as 
to  make  it  proper  that  he  be  present,  the  accused.  The  record  will 
further  show  the  action  taken  by  the  court,  in  making  the  correction 
or  otherwise,  under  the  order,  and  the  |)roceeding  will  be  finally 
authenticated  by  the  signatures  of  the  president  and  judge  advocate. 
R.  1,  487,  Dec,  1862;  2,  97,  Mar.,  1863;  9,  653,  Sept.,  1864;  11,  93, 
113,  Nov.,  1864;  15,547,  Aug.,  1865;  17,  402,  and  19, 135,  Oct.,  1865. 
Where  the  court  decides  upon  making  the  correction,  the  same  should 
be  declared  to  he  made  in  manner  and  form  as  determined  upon  and 
with  the  proper  reference  to  the  part  of  the  original  proceedings  in 
which  the  error  occurs.  The  error  itself,  however,  is  to  be  leit  as 
originally  recorded;  all  corrections  in  the  body  of  the  record  by  era- 
sure, interlineation,  etc.,  being  irregular  and  improper.  R.  11,  93, 
supra;  R.  16,  202,  May,  1865;  P.  23,  345,  Apr.,  1888. 

XIII  I.  When  the  court  closes,  the  record  should  properly  set  forth 
that  the  judge  advocate  witMrew.  (Act  of  July  27,  1892,  27  Stat., 
278.)  But  an  absence  of  a  statement  to  this  effect  will  not  impair 
the  legal  validity  of  the  record.  Where  it  simply  appears  from  the 
record  that  the  court  ''closed,''  the  presumption  will  be  that,  in 
closing,  the  requirements  of  law  were  observed.  P  56,  387,  Nov., 
1892;  65,  350,  356,  June,  1894;  O.  II4,  Aug.,  1894. 

XIII  K.  The  record  should  fully  set  forth  all  the  testimony  intro- 
duced upon  the  trial — the  oral  portion  as  nearly  as  practicable  in  the 
precise  words  of  the  witness.     R.  2,  23,  Feb.,  1863.     For  a  judge- 


DISCIPLINE  XIII  L.  55B 

advocate  to  assume  to  record  only  such  testimony  as  he  considered 
material,  or  to  summarize  the  testimony  given,  has  been  remarked 
upon  as  a  gross  irregularity.  R.  3,  189,  July,  1863;  20,  42,  Oct., 
1865. 

It  is  usual  and  proper  (though  not  essential)  to  specify  by  which 
party  the  witness  is  introduced  and  by  whom  the  questions  are  put. 
H.  3%,  435,  Sppt.,  1873.  It  is  also  usual  (though  not  essential)  to  des- 
ignate the  point  at  which  the  prosecution  is  closed  and  the  testimony 
for  the  defense  is  commenced.  R.  4j  ^^U  Sept.,  1863.  It  should 
appear  that  each  witness  (whether  or  not  his  evidence  was  important) 
was  duly  sworn  (R.  3,  650,  Aug.,  1863;  21,  43,  Nov.,  1865;  34, 
457,  Sept.,  1873),  but  it  is  not  customary  to  add  that  he  was  sworn 
in  the  presence  of  the  accused;  this  fact  that  he  was  so  sworn  being 
presumed  in  the  absence  of  any  statement  to  the  contrary.*  ^  R.  9, 
166,  May,  I864.  Objections  taken  to  the  admissibility  of  testimony 
should  be  set  forth  with  the  argument  had  thereon,  if  any,  and  the 
ruling  of  the  court  (R.  26,  643,  July,  1868);  and  where  the  court  is 
closed  on  any  interlocutory  objection,  the  fact  will  properly  be  noted. 
R.  9,221,  June,  I864. 

The  record  need  not  show  affirmatively  that  the  accused  was  offered 
an  opportunity  to  cross-examine.  Where  it  appears  that  he  did  not 
cross-examine,  the  presumption  will  be  that  he  waived  the  privilege. 
So,  the  record  need  not  state  that  the  accused  was  notified  of  his  priv- 
ilege of  being  assisted  by  counsel.  P.  44i  ^^^y  Jan.,  1891.  ^  Held  that 
where  the  accused  party  desires  to  be  sworn,  and  testifies  in  his  own 
defense,  his  testimony  is  recorded  like  that  of  any  other  witness, 
a  18764,  Nov.  9,  1910. 

XIII  L.  The  record  of  each  case  tried  by  a  court-martial— where 
several  cases  are  tried  thereby — should  "be  complete  in  itself" 
and  as  much  an  entirety,  both  in  form  and  in  substance,  as  if  it  were 
the  only  case  tried.  Each  record  should  be  separate  and  distinct 
from  every  other  record,  containing  all  that  is  essential  to  an  original 
and  independent  official  paper,  and  so  perfected  as  to  leave  no  mate- 
rial detail  to  be  supplied  from  any  previous  or  other  record.  The  pro- 
ceedings in  each  case  should  be  made  up  separately;  records  there- 
fore should  not  be  attached  together,  but  should  be  prepared  and 
transmitted  as  disconnected  documents.  R.  3,  402,  and  4i^i  ^'^9-? 
1863;  19,  336,  Jan.,  1866;  32,  130,  Nov.,  1871,  and  453,  Apr.,  1872. 
Where  a  sentence  is  pronounced,  the  record  should  contain  everything 
necessary  to  sustain  it  in  fact  and  in  law.     R.  2,  59,  Mar.,  1863. 

XIII  M.  In  a  case  of  a  death  sentence  the  record  should  state 
that  it  was  concurred  in  by  two-thirds  of  the  members.  R.  1,  4^7, 
Bee,  1862;  2,  21,  Feh.,  1863;  4,  158,  Sept,  1863.  ^ 

XIII  N.  The  record  should  set  forth  the  finding  on  each  of  the 
several  charges  and  specifications  {R.  9,  221,  June,  1864;  ^-  5166  and 
5187,  Oct.,  1898),  and  the  proper  entry  as  to  previous  convictions 
(0.  3097,  Apr.,  1897). 

XIII  O.  It  is  not  essential  that  the  record  of  the  court  should 
show  that  the  jud^e  advocate  called  the  attention  of  the  accused  to 
the  fact  of  his  privilege  of  testifying  in  his  own  behalf.  General 
Order  75  of  1887  requires  only  that  this  be  done  "before  the  assem- 
bling of  the  court."     P.  36,  185,  Oct.,  1889. 

^  There  is,  however,  no  statutory  requirement  that  a  witness  should  be  sworn  in 
the  presence  of  the  accused. 


554  DISCIPLINE  XIV  A  1. 

XIV  A  1.  This  term  (reviewing  authority)  is  employed  in  miUtary 
parlance  to  designate  the  officer  whose  province  and  duty  it  is  to 
take  action  upon  the  proceedings  of  a  court-martial  after  the  same 
are  terminated,  and,  when  the  record  is  transmitted  to  him  for 
such  action,  to  approve  or  disapprove,  etc.,  the  sentence.  This 
officer  is  ordinarily  the  commander  who  has  convened  the  court. 
In  his  absence,  however,  or  where  the  command  has  been  otherwise 
changed,  his  successor  in  command,  or,  in  the  language  of  articles 
104  and  109, ''  the  officer  commanding  for  the  time  being, "  is  invested 
(by  those  articles)  with  the  same  authority  to  pass  upon  the  pro- 
ceedings and  order  the  execution  of  the  sentence  in  a  case  of  con- 
viction.    R.  13,  J^68,  Mar.,  1865. 

XIV  A  2.  A  separate  brigade  was  merged  into  a  division.  Held 
that  the  division  commander  became  the  reiviewng  authority  in 
cases  tried  by  courts  which  had  been  convened  by  the  separate 
brigade  commander.  C.  6151,  Oct.  15,  1898;  5231,  Oct.  31,  1898; 
5274,  Nov.  9,  1898;  5294,  Nov.  8,  1898. 

XIV  A  3.  Where  the  men  who  had  been  tried  by  general  court 
martial  had  passed,  with  their  command,  from  the  department  in 
which  they  had  been  tried,  before  action  had  been  taken  on  their 
cases  by  the  reviewing  authority,  it  was  held  that  the  commanding 
general  of  the  department  in  which  they  had  been  tried  was  the 
proper  reviewing  authority  for  the  cases.  ^     C.  4^4^,  Sept.  9,  1898. 

XIV  B.  In  acting  upon  the  proceedings  of  a  court-martial,  the 
legal  reviewing  officer  acts  partly  in  a  judicial  and  partly  in  a  minis- 
terial capacity.  He  '' decides"  and  ''orders,"  and  the  due  exercise 
of  his  proper  functions  can  not  be  revised  by  superior  military 
authority.  Thus  held  that  a  reviewing  officer  who  had  duly  acted 
upon  a  sentence  and  promulgated  his  action  in  orders,  could  not 
be  required  by  a  higher  commander,  or  by  the  Secretary  of  War, 
to  revoke  such  action.  If  the  sentence  be  deemed  unwarranted 
or  excessive,  relief  may  be  extended  through  the  power  of  pardon 
or  remission;  if  void  for  want  of  jurisdiction  or  other  cause,  it  may 
be  set  aside.  R.  49,  264,  ^^9-,  1885;  50,  553,  July,  1886;  C.  11509, 
Nov.  8,  1901;  17386,  Jan.  I4,  1905;  21613,  June  1,  1907. 

XIV  C.  A  military  commander  can  not  of  course  delegate  to  an 
inferior  or  other  officer  his  function  as  reviewing  authority  of  pro- 
ceedings or  sentence  of  a  court-martial,  as  conferred  by  the  one 
hundred  and  fourth  or  one  hundred  and  ninth  article  of  war  or 
other  statute.  Nor  can  he  regularly  authorize  a  staff  or  other 
officer  to  subscribe  for  him  the  action,  by  way  of  approval,  disap- 
proval, etc.,  which  he  has  decided  to  take  upon  such  proceedings. 
An  approval  purporting  to  be  subscribed  by  the  commander,  "67/" 
his  staff  judge  advocate  or  other  staff  officer,  would  be  open  to 
question  and  quite  irregular;  as  would  also  be  any  action  subscribed 
by  such  an  officer,  purporting  to  be  taken  *'in  the  absence  and  by 
the  direction  of"  the  commander.  R.  4,  567,  Jan..  1864;  7,  19, 
and  8,  639,  July,  1864;  ^,  ^^,  ^^ciV,  1S64;  15,  548,  July,  1865;  17, 
191,  Aug.,  1865;  27,  297,  Oct.,  1868;  37,  429,  Mar.,  1876. 

^  The  same  view  was  held  in  1901  in  a  case  arising  in  China  where  the  prisoner  had 
been  sent,  with  his  command,  to  the  Philippine  Islands.  Held  that  the  department 
commander  in  the  Philippine  Islands  was  the  '  'successor  in  command' '  of  the  general 
in  China. 


DISCIPLINE  XIV  C  1.  555 

XIV  C  1 .  TTeld,  that  in  the  event  of  the  criticism  by  the  review- 
ing authority  of  an  individual  being  made  the  subject  of  an  action 
at  law  he  could  not  plead  that  his  comment  was  protected  by  ofhcial 
privilege.     C.  IJ^.02,  July  9,  1903. 

XIV  D.  A  soldier  was  dishonorably  discharged  and  thereafter  the 
record  of  another  trial  of  the  same  soldier  on  different  charges, 
which  trial  was  completed  before  he  was  dishonorably  discharged, 
was  placed  before  the  reviewing  authority.  Held  that  as  he  was 
not  then  in  the  service  the  reviewing  authority  had  no  right  to 
approve  the  second  sentence.  Further  lield  that  the  act  of  June 
18,  1898  (30  Stat.,  483),  which  provides  ''that  soldiers  sentenced  by 
court-martial  to  dishonorable  discharge  and  confinement  shall,  until 
discharged  from  such  confinement,  remain  subject  to  the  articles  of 
war  and  other  laws  relating  to  the  administration  of  military  justice," 
did  not  apply  to  his  case  as  he  was  tried  for  offenses  which  he  was 
alleged  to  nave  committed  before  he  was  dishonorably  discharged. 
C.  13926;  Jan.  12,  1903. 

XIV  E.  As  an  acquittal  is  a  sentence  in  the  sense  that  the  latter 
word  is  used  in  civil  jurisprudence,  ordinarily  meaning  judgment, 
tidd  that  an  acquittal  similar  to  a  sentence  wluch  carries  punishment 
is  inchoate  until  acted  on  by  the  reviewing  authority,  and  may  be 
returned  by  the  reviewing  authority  for  reconsideration  by  the  court. 
C.  565J^,  July  21^,  1899. 

XIV  E  1 .  A  reviewing  officer  can  not  himself  correct  the  record  of  a 
court-martial  ^  by  striking  out  any  part  of  the  finding  or  sentence,  or 
otherwise;  nor  can  he  in  general  change  the  order  in  wliich  different 
penalties  are  adjudged  by  the  court  to  be  suffered.  He  may,  how- 
ever, in  general,  specify  the  reasons  for  the  action  taken  by  him,  with- 
out transcending  liis  authority.  Thus,  where  a  department  com- 
mander disapproved  a  sentence  as  inadequate  and,  in  stating  his 
grounds  for  so  doing,  commented  unfavorably  upon  the  conduct  of 
the  accused  as  indicated  by  the  evidence,  held  that  such  comments 
were  a  legitimate  explanation  of  the  action  taken  and  did  not  con- 
stitute an  adding  to  the  punishment.^  R.  19,  676,  Aug.,  1866;  0. 
14260,  Mar.  25,  1903. 

Held  that  in  case  of  a  conviction  of  desertion  the  action  of  the 
reviewing  authority  in  approving  so  much  only  of  the  finding  as  con- 
victed the  accused,  of  the  included  offense  of  absence  without  leave 
was  unauthorized,  as  the  reviewing  authority  thereby  substituted  a 
finding  for  that  of  the  court.  R.  47,  291,  Aug.,  1883;  P.  48,  445, 
Oct.,  1891;  62,  454,  Dec,  1893. 

Held,  where  a  court  had  found  an  accused  *' guilty,  but  without 
criminality,"  and  the  reviewing  authority  in  disapproving  tliis  con- 
tradictory finding  ordered  that  the  words  after  th^  word  *' guilty"  be 
treated  as  struck  out  of  the  record,  that  he  had  no  such  authority  to 
make  such  correction  in  the  record,  and  that  if  he  desired  to  amend 
the  record  he  should  have  formally  reconvened  the  court  for  that 
purpose.     R.  12,  250,  Jan.  11, 1865. 

XIV  E  2.  It  is  a  principle  of  military  law  that  no  military  authority, 
whether  the  reviewmg  officer  or  other  commander,  can^aad  to  a  pun- 
ishment as  imposed   by  a  court-martial.     R.  2,  446,  525,   May  and 

1  See  23  Op.  Atty.  Gen.,  23. 

^  See  as  a  marked  instance  of  such  comments,  G.  C.  M.  O.  104,  Navy  Dept.,  Sept. 
lo,  lo97. 


556  DISCIPLINE  XIV  E  2  a. 

June,  1863;  11,  310,  Dec,  186/+.  Neither  forfeiture  of  pay,  for 
example,  nor  fine,  nor  a  corporal  punishment,  can  be  inflicted  upon 
an  omcer  or  soldier  where  the  sentence  fails  to  adjudge  it.  And 
neither  the  fact  that  the  punishment  awarded  by  the  court  is  regarded 
as  an  inadequate  one,^  nor  the  fact  that  the  period  is  a  time  of  war,  can 
affect  the  application  of  the  principle.  R.  8,  4-44)  ^^^>  ^(^V  ^^ 
June,  1864;  20,  430,  Feb.,  1866;^  21,  257,  Mar.,  1866;  C.  8977,  Sept. 
17,  1900.  Thus,  where  the  punishment  imposed  by  the  sentence  was 
to  carry  a  weight  of  20  pounds,  held  that  it  would  be  illegal  for  the 
officer  charged  with  the  execution  of  the  sentence  to  increase  the 
weight  to  30  pounds.  R.  27,  511,  Feb.,  1869.  So  where  the  sen- 
tence imposed  simply  a  forfeiture  of  pay,  lield  that  it  was  adding  to 
the  punishment  to  order  the  confinement  of  the  accused  in  a  military 
prison.  R.ll,  98,  Nov.,  1864;  ^0,  340,  Feb.,  1866.  ^  So  held  that  a  sen- 
tence of  simple  *'  confinement "  for  a  certain  time  did  not  authorize  the 
imposition,  in  connection  with  its  execution,  of  hard  labor.  R.  21 ,  310, 
Apr.,  1866.  Where  an  officer,  on  conviction  of  the  embezzlement  of  a 
certain  sum,  was  sentenced,  without  further  penalty,  to  be  dismissed 
the  service,  held  that  the  department  commander,  in  approving  the  sen- 
tence, could  not  legaUy  order  him  to  be  confined  at  his  station  tiU  he 
should  make  good  the  amount  embezzled,  since  this  would  be  an  adding 
to  the  punishment  imposed  by  the  court,  as  well  as  an  illegal  exercise 
of  power  over  a  civilian.  R.  28, 122,  Sept,^  1868;  C.  14260,  Mar.  25, 
1903.  Where  a  sentence  adjudges  a  fine  without  also  adding  (with  a 
view  to  enforcing  its  payment)  a  term  of  confinement,  such  a  con- 
finement can  not  of  course  legally  be  imposed  by  the  militant  com- 
mander. R.  13,  4"^^)  supra.  So  held  that  paragraph  II  of  General 
Order  61,  War  Department,  1-865,  to  the  effect  that  where  a  court- 
martial,  in  imposing  a  fine,  has  failed  to  require  that  the  prisoner  shall 
be  confined  till  the  fine  is  paid,  ''he  will  not  be  released  without  orders 
from  the  War  Department,  except  on  payment  of  the  fine,"  tran- 
scended the  authority  of  an  Executive  order,  such  a  requirement 
being  a  punishment,  which  can  be  prescribed  only  by  sentence  of 
court-martial.     R.  33,  309,  Aug.,  1872. 

XIV  E  2  a.  Nor  can  penitentiary  confinement  be  legalized  as  a 
punishment  for  purely  military  offenses  by  designating  a  penitentiary 
as  a  *' military  prison,"  and  ordering  the  confinement  there  of  soldiers 
sentenced  to  imprisonment  on  conviction  of  such  offenses.  R.  35,  377, 
May,  1874;  39,659,  Sept.,  1878. 

XIV  E  3.  It  is  no  longer  necessary  that  the  findings  of  a  court- 
martial  should  be  expressly  approved.  Formerly  the  one  hundred 
and  fourth  article  of  war  prescribed  that  no  sentence  of  a  court-martial 
should  be  carried  into  execution  until  the  whole  proceedings  were 
approved  by  the  reviewing  authority,  but  now,  as  amended  by  act  of 
July  27, 1892  (27  Stat.,  278),  it  simply  requires  that  the  sentence  shall 
be  approved  by  such  officer,  and  this  applies  as  well  in  cases  requiring 
confirmation  of  the  President  as  in  those  that  do  not.  C.  2844}  Jcb'ri., 
1897;  5095,  Oct.  8,  1898;  12723,  June  21,  1903. 

XIV  E  4  a.^  Where  the  reviewing  officer  deems  that  the  proceed- 
ings of  the  court  are  in  any  material  particular  erroneous  or  ill- 
advised,  his  proper  course  in  general  will  be  to  reconvene  the  court 
for  the  purpose  of  having  the  defect  corrected,  at  the  same  time 
furnishing  it  with  the  grounds  of  ]iis  opinion.     Thus  if  he  regards 

^  Compare  Barwis  v.  Keppel,  2  Wilson,  314. 


DISCIPLINE  XIV  E  4  b.  557 

the  sentence  inadequate,  he  should,  in  reassembUng  the  court,  for  a 
revision  of  the  same  state  why  he  so  considers  it.  R.  11,  4^0 , 
Feb.,  1865.  Wliile  he  can  not  compel  the  court  to  adopt  his  views 
in  regard  to  the  supposed  defect,  he  may,  in  a  proper  case,  express 
liis  formal  disapprooation  of  their  neglect  to  do  so.  Thus  where  a 
court  martial,  on  being  reconvened  with  a  view  of  giving  it  an  oppor- 
tunity to  modify  a  sentence  manifestly  too  lenient  for  the  offense 
found,  decided  to  adhere  to  the  sentence  as  adjudged,  and,  on  being 
again  reassembled  to  consider  further  grounds  presented  by  the 
reviewing  commander  for  the  infliction  of  a  more  severe  penalty,  again 
declined  to  increase  the  punishment,  Jield  that  it  was  within  the 
authorit}^  of  the  reviewing  officer,  and  would  be  no  more  than  proper 
and  dignified  for  him,  in  taking  final  action  upon  the  case,  to  reflect 
upon  me  refusal  of  the  court  as  ill-judged  and  as  having  the  effect 
to  impair  the  discipline  and  prejudice  the  interests  of  the  military 
service.^  R.  4,  579,  Jan.,  1864;  12,  H6,  Aug.,  1865;  C.  14260, 
Mar.  25,  1903. 

XIV  E  4  b.  The  general  finding  of  ''conduct  to  the  prejudice,'*  etc., 
on  a  charge  of  ''conduct  unbecoming"  is  sanctioned  in  order  to 
prevent  a  failure  of  justice,  not  for  the  purpose  of  relieving  the 
accused  of  any  of  his  due  share  of  culpability.  It  should  not  there- 
fore be  resorted  to  where  the  specific  offense  charged  is  substantially 
made  out  by  the  testimony.  Thus  in  a  case  where  the  facts  set 
forth  in  the  specification  to  a  charge  of  "conduct  unbecoming  an 
officer  and  a  gentleman,"  and  clearly  established  by  the  evidence, 
fixed  unmistakably  upon  the  accused  dishonorable  behavior  com- 
promising him  officially  and  socially,  held  that  a  finding  by  the 
court  that  he  was  guilty  only  of  "conduct  to  the  prejudice  of  good 
order  and  military  discipline"  should  not  be  approved.  In  such  a 
case  the  court  should  be  reconvened  for  the  purpose  of  inducing, 
if  practicable,  a  finding  in  accordance  with  the  facts  and  with  justice. 
R.  30,  495,  July,  1870. 

XIV  E  4  c.  Where  the  offense  is  alleged  to  have  been  committed 
on  a  particular  day,  and  the  evidence  shows  that  it  was  committed 
on  quite  a  different  day — in  such  case,  provided  time  is  not  of  the 
essence  of  the  offense  and  the  specific  act  charged  is  sufficiently 
identified  by  the  other  testimony,  the  variance  between  the  allega- 
tion and  the  proof  will  not  constitute  a  fatal  defect  and  need  not 
induce  a  disapproval  of  the  sentence  where  there  has  been  a  con- 
viction. A  return,  however,  of  the  record  to  the  court  for  correc- 
tion, if  practicable,  would  well  be  resorted  to  by  the  reviewing  officer 
before  taking  final  action.^    R.  13,  361,  Feb.,  1865. 

XIV  E  5.  There  is  always  a  presumption,  in  the  absence  of  obvious 
irregularity,  that  the  proceedings  were  regular  and  according  to  law. 
P.  44,  456,  Jan.,  1891. 

XIV  E  6.  Where  the  record  of  the  trial  of  a  soldier  who  had  pleaded 
not  guilty,  and  in  whose  case  considerable  evidence  had  been  intro- 
duced, was,  by  a  casualty  of  war,  lost  before  any  action  had  been 
taken  upon  th^  sentence  by  the  reviewing  authority,  tield  that,  unless 
the  court  could  be  reconvened  and  a  new  record  could  be  made  out 
from  extant  original  notes,  the  proceedings,  inasmuch  as  they  could 
not  be  intelligently  reviewed  or  formally  approved,  should  properly 

1  See  G.  C.  M.  O.  88,  A.  G.  O.,  1864. 

2  See,  to  the  same  effect,  G.  O.  16,  War  Dept.,  1853. 


558  DISCIPLINE  XIV  E  7  a. 

be  considered  as  inoperative  and  the  sentence  of  no  effect.  R.  6,  582, 
Bee,  1864. 

Similarly  held  that  the  complete  destruction  of  the  record  by  fire, 
rendering  impossible  the  preparation  of  the  record  from  notes,  before 
action  by  the  reviewing  authority,  operated  as  an  acquittal.  P.  55 j 
181,  Aug.,  1892;  65,  338,  June,  1894.  . 

Similarly  held  where  the  stenographic  notes,  the  only  record  of  the 
proceedings,  were  lost.     C.  24198,  Dec.  7,  1908,  and  Jan.  12,  1912. 

XIV  E  7  a.  A  misnaming  or  misdescription  of  the  rank  of  the 
accused  in  the  specification  should  be  taken  advantage  of  by  excep- 
tion in  the  nature  of  a  plea  in  abatement.  Where  not  objected  to, 
the  error  is  immaterial  after  sentence,  provided  the  accused  is  suffi- 
ciently identified  by  the  plea,  testimony,  etc.  B.  37,  482,  Apr.,  1876. 
.  XIV  E  7  a  (1).  A  mere  clerical  error  in  the  spelling  of  the  name  of 
the  accused,  leaving  it  idem  sonans,  is  not  a  case  of  misnomer  and 
does  not  affect  the  validity  of  the  proceedings  as  recorded.  P.  25, 
234,  June,  1888. 

XIV  E  7  b.  Where  time  or  i)lace  is  omitted  to  be  averred,  or  is 
averred  without  sufficient  definiteness,  and  the  defect  is  excepted  to 
by  the  accused  on  being  called  upon  to  plead,  the  court  will  properly 
direct  that  an  amendment  be  made.  But  where  in  either  such  case 
no  objection  is  inter j)osed  by  the  accused,  the  proceedings  will  be 
sufficient  in  law  provided  the  time  and  place  of  the  offense  can  be 
made  out  with  reasonable  certainty  from  the  testimony  in  connection 
with  the  specifications.  R.  I4,  635,  and  16,  298,  June,  1865;  20, 
280,  Jan.,  1866;  26,  412,  Jan.,  1868. 

XIV  E  7  c.  For  some  time  after  the  enactment  in  1874  of  the 
present  Articles  of  War,  charges  were  not  infrequently  laid  under 
articles  by  their  old  numbers — as  ''violation  of  the  ninth"  (old 
number),  instead  of  the  twenty-first  (new  number)  ''article,"  or 
''sleeping  on  post,  in  violation  of  the  forty-sixth"  (old  number), 
instead  of  the  thirty-ninth  (new  number)  "article."  Held,  in  such 
cases,  that  the  error  was  one  which  could  only  be  taken  advantage  of 
by  an  objection  in  the  nature  of  a  plea  in  abatement^whereupon 
indeed  an  amendment  could  at  once  be  made — and  that,  in  the  ab- 
sence of  such  objection,  the  mistake  was  to  be  treated  as  immaterial 
after  finding  and  sentence.  R.  37,  313,  Feb.,  1876;  38,  495  and  552, 
Apr.,  1877. 

XIV  E  7  d.  Held,  that  the  fact  that  the  judge  advocate  was  per- 
sonally objectionable  or  hostile  to  the  accused  could  not  affect  the 
validity  of  the  proceedings  of  a  court-martial.  R.  27, 127,  Aug.,  1868, 
and  43,  106,  Dec,  1879. 

XIV  E  7  6.  The  fact  that  an  accused  soldier  was  tried  with  hands 
or  feet  in  shackles,  or  with  ball-and-chain  attached,  these  having  been 
omitted  to  be  removed  during  the  hearing  before  the  court,  does  not, 
however  reprehensible,  affect  the  legality  of  the  proceedings  or 
sentence.  R.  50,  33,  Feb.,  1886;  53,  196,  Oct.,  1886;  55,  686,  July, 
1888. 

XIV  E  7  f .  That  a  member  of  the  court  acted  as  interpreter  on  a 
trial,  held  an  irregularity,  but  one  which  did  not  affect  the  legality 
of  the  proceedings.     R.  9,  15,  May,  I864. 

XIV  E  7  g.  A  court-martial,  member  of  court,  or  judge  advocate 
can  not  of  course  lawfully  communicate  to  a  reporter  or  clerk,  by 
allowing  him  to  record  the  same  or  otherwise,  the  finding  or  sentence 
of  the  court.     Before  proceeding  to  deliberate  upon  its  fmding,  the 


DISCIPLINE  XIV  E  7  h.  559 

court  should  require  the  reporter  or  clerk,  if  it  has  one,  to  withdraw. 
But  the  fact  that  the  finding  or  sentence,  or  both,  may  have  been 
made  known  to  the  reporter  or  clerk  of  a  court-martial,  can  not 
affect  the  legality  of  its  proceedings  or  sentence.  R.  6,  %78,  Dec, 
1868;  11,  318,  Dec,  1864;  ^S,  I46,  Oct.,  1868;  42,  218,  Mar.,  1879. 

XIV  E  7  h.  While  the  practice  of  noting  the  adjournment  of  the 
court  at  the  end  of  the  record  of  a  trial  is  usual  and  proper,  and 
is  often  of  service  in  indicating  the  sequence  of  the  cases  tried  and 
the  course  and  order  of  the  business  transacted,  a  statement  of  such 
adjournment  is  not  an  essential  part  of  the  record  of  proceedings, 
and  its  omission  will  not  affect  their  legality.  R.  23,  627,  Aug.,  1867; 
33,  456,  Nov.,  1872. 

XIV  E  7  i.  The  legal  record  of  a  court-martial  is  that  record  which 
is  finally  approved  and  adopted  by  the  court  as  a  body,  and  authen- 
ticated by  its  president  and  judge  advocate.  The  court  as  a  whole  is 
responsible  for  the  record;  and  the  instrument  which  it  approves  as 
such  is  its  record,  however  the  same  may  have  been  made  up.  It  is 
immaterial  to  the  sufficiency  of  a  record  whether  the  same  was  kept 
or  written  by  the  judge  advocate  or  a  clerk.  So,  where  a  clerk  or 
reporter,  appointed  and  sworn  to  keep  the  record,  did  not  act,  but 
the  record  was  prepared  by  the  judge  advocate  or  some  other  person 
employed  by  him  to  assist  him,  held,  that  this  circumstance  aid  not 
affect  the  legality  of  the  record  as  finaUy  approved  by  the  court. 
R.  43,  346,  June,  1880. 

XIV  E  8  a  (1).  In  passing  upon  the  findings  and  sentence  of  a 
court-martial,  the  reviewing  officer  will  properly  attach  special 
weight  to  its  conclusions  where  the  testimony  has  been  of  a  conflicting 
character.  This  for  the  reason  that,  having  the  witnesses  before  it  in 
person,  the  court  was  qualified  to  judge,  from  their  manner  in  con- 
nection with  their  statements,  as  to  the  proper  measure  of  credibility 
to  be  attached  to  them  individually.^  R.  30,  383,  447,  May  and  June, 
1870;  35,  542,  Aug.,  1874;  38,  272,  325,  Aug.  and  Sept,  1876;  C.  24518, 
Apr.  10,  1909. 

XIV  E  8  a  (2).  A  sentence,  to  be  valid,  must  of  course  rest  upon  an 
approved  finding  of  guilty  of  an  offense  for  which  the  accused  has 
been  tried.  Thus  a  duly  approved  finding  of  guilty  on  one  of  several 
charges,  a  conviction  upon  which  requires  or  authorizes  the  sentence 
adjudged,  will  give  validity  and  effect  to  such  sentence  although  the 
similar  findings  on  all  the  other  charges  are  disapproved  as  not  war- 
ranted by  the  testimony.  Where  such  a  sentence,  though  legally 
supported  by  the  finding  upon  the  single  charge,  is  deemed  too  severe 
a  punishment  for  the  one  offense,  it  may  of  course  be  mitigated  by 
the  proper  authority.  R.  11,  67,  and  12,^  30,  Oct.,  1864;  16,  70,  Apr., 
1865.  JBut  a  finding  of  guilty  of  a  specification  to  a  charge  but  not 
guilty  of  the  charge  itself  will  not  support  a  sentence  unless,  indeed, 
there  is  added  a  conviction  of  some  lesser  offense  included  in  that 
charge.  R.  7,  600,  Apr.,  1864;  9,  19,  May,  1864;  0.  11092,  Aug.  16, 
1901;  16101,  Apr.  21,  1904. 

XIV  E  9  a  (1).  Held  a  good  ground  for  the  disapproval  of  a  sentence 
that  the  court  denied  the  request  of  the  accused  to  have  summoned  a 

/See  the  early  case  of  Capt.  Weisner,  Am.  Archiv.,  5th  series,  Vol.  IT,  p.  895.  So, 
civil  courts  will  rarely  interfere,  except  in  cases  of  clear  injustice,  witli  verdicts  of 
juries  which  have  turned  upon  the  credibility  of  witnesses.  Wright  v.  State,  34  Ga., 
110;  Whitten  v.  State,  47  id.,  297. 


560  DISCIPLINE  XIV  E  9  a  (2). 

clearly  material  and  important  witness  whose  testimony  would  not 
have  been  merely  cumulative.^    R.  Ji.9,  18,  Am.,  1885. 

XIV  E  9  a  (2).  If  a  member,  absent  during  the  whole  of  the  original 
proceedings  had  in  a  trial,  is  in  fact  present  during  proceedings  had  on 
revision  to  reconsider  the  sentence,  the  revised  sentence  is  clearly 
illegal  and  should  be  disapproved.  C.  47^2, 4750,  4751 ,  4854,  and  4855, 
Aug.,  1898. 

XIV  E  9  a  (3).  A  material  variance  between  the  name  of  the  ac- 
cused in  the  specification  and  in  the  sentence  should^  if  possible,  be 
corrected  by  a  reassembling  of  the  court  for  a  revision  of  its  sentence. 
If  this  be  rendered  impracticable  by  the  exigencies  of  the  service,  the 
sentence  should  in  general  be  disapproved  as  fatally  defective.  Thus, 
held,  in  a  case  where  the  names  in  the  sentence  and  the  specification 
were  entirely  different,  the  one  being  John  Moore  and  the  other  James 
Cunningham  {R.  17,  601,  Feb.,  1866);  also  in  cases  in  which,  while  the 
surnames  were  the  same,  the  Christian  names  were  quite  different,  one 
bemg  George  and  the  other  William,  etc.  (R.  9,  27,  134,  May,  1864); 
also  in  a  case  where  the  name  in  the  sentence,  though  similar  to  that 
in  the  specification,  was  not  idem  sonans,  as  where  the  accused  was 
arraigned  upon  charges  in  which  he  was  designated  as  Woodworth, 
but  was  sentenced  under  the  name  of  Woodman.  R.  2,  555,  June, 
1863.  A  difference,  however,  in  a  middle  initial  is  not  a  material 
variance,  a  middle  name  not  being  an  essential  part  of  the  Christian 
name  in  law.^  R.  13,  48I,  Mar.,  1865;  C.  9066,  Oct.,  1900;  12396.. 
Apr.  9,  1902.  < 

XIV  E  9  a  (4).  Where  the  charges  against  a  private  soldier  were 
preferred  by  the  captain  of  his  company,  who  also  acted  not  only  as  a 
prosecuting  witness  but  as  interpreter  on  the  trial,  held  a  grave  irreg- 
ularity which  might  well  induce  a  disapproval  of  the  proceedings  and 
sentence  unless  it  quite  clearly  appeared  that  no  injustice  had  been 
done  the  accused.^    R.  7,  562,  Apr.,  I864. 

XIV  E  9  a  (5).  It  does  not  invalidate  the  proceedings  of  a  court- 
martial  that  a  member  who  has  been  i)resent  during  a  portion  of  the 
trial,  and  has  then  absented  himseK  during  a  portion,  has  subsequently 
resumed  his  seat  on  the  court  and  taken  part  m  the  trial  and  judgment. 
Nor  is  the  legality  of  the  proceedings  affected  by  the  adding  of  a  new 
member  to  the  court  pending  the  trial.  In  either  case,  however, 
the  testimony  which  has  been  introduced  and  the  material  pro- 
ceedings which  have  been  had  while  the  new  or  absent  member  was  not 
present  should  be  communicated  to  him  before  he  enters  or  reenters 
upon  his  duties  as  a  member.  Such  was  the  ruling  of  the  Secretary 
of  War  on  Gen.  HuU's  trial,*  and  this  precedent  was  followed  in 

1  See  G.  C.  M.  O.  128,  A.  G.  O.  of  1876. 

2  That  the  law  "recognizes  but  one  Christian  name,"  and  that  the  insertion  or 
omission  of  a  middle  initial  or  initials  "will  have  no  effect  in  rendering  any  proceed- 
ing defective  in  point  of  law,"  see  2  Op.  Atty.  Gen,,  332;  3  id.,  467;  also  Franklin  v. 
Tallmadge,  5  Johns.,  84;  Roosevelt  t;.  Gardinier,  2  Cow.,  463;  State  v.  Webster,  30 
Ark.,  168. 

^  That  an  important  witness  for  the  prosecution  on  a  .trial  should  not  properly  be 
permitted  to  interpret  the  testimony  of  another  such  witness,  is  remarked  in 
G.  C.  M.  O.  24,  Dept.  of  Texas,  1875. 

*  See  the  reply  dated  Mar.  17,  1814,  of  the  Secretary  of  War,  Hon.  John  Armstrong, 
to  the  communication  of  the  "acting  special  judge  advocate,"  Hon.  Martin  Van 
Buren,  submitting  questions  for  the  court.  (Forbes'  Trial  of  Hull,  Appendix,  pp. 
28-29.)  It  was  indeed  held  by  Atty.  Gen.  Berrien  (2  Op.  414)  that  a  member  of  a 
court-martial  who  has  absented  himself  during  the  taking  of  testimony  i^  disqualified 


DISCIPLINE  XIV  E  9  a  (6).  561 

repeated,  though  not  frequent,  cases  during  tlie  Civil  War.  For  a 
member,  however,  who  has  been  absent  during  a  substantial  part  of  a 
trial  to  return  and  take  part  in  a  conviction  and  sentence  is  certainly 
a  marked  irregularity,  and  one  which  may  well  induce  a  disapproval 
of  the  findings  and  sentence  in  a  case  where  there  is  reason  to  believe 
that  the  accused  may  have  suffered  material  disadvantage  from  the 
member's  action.  R.  7,  128,  411,  467,  Feb.  and  Mar.,  1864;  8,  662, 
July,  1864;  27,  584,  Mar.,  1869;  C.  18306,  Oct.  28, 1905;  22162,  Oct. 
5, 1907. 

XIV  E  9  a  (6).  A  direction  in  an  order  convening  a  general  court- 
martial  that  if  the  judge  advocate  be  prevented  from  attending,  the 
junior  member  of  the  court  will  act  in  his  stead,  held  irregular  and 
unproper;  the  function  of  a  judge  advocate  as  prosecuting  officer  (see 
art.  90)  not  being  properly  compatible  with  that  of  a  member  of  a 
court-martial.  And  the  member  having  acted  as  judge  advocate  and 
member  in  the  case,  advised  that  the  proceedings  be  disapproved  by 
the  reviewing  authoritv.  R.  2,  60,  Mar.,  1863;  21,  300,  Mar.,  1866. 
A  court-martial  has  of  course  no  authority  to  direct  or  empower  its 
junior  member  or  any  other  officer  to  act  as  its  judge  advocate.  R.  28, 
198,  Oct..  1868. 

XIV  E  9  a  (7).  A  witness  who  has  given  his  testimony  should  in 
general  be  allowed  to  modify  the  same  where  he  desires  to  do  so  in  a 
material  particular.  But  where  the  court  has  refused  to  permit  a 
witness  to  correct  his  statement  as  recorded,  such  refusal  need  not 
induce  a  disapproval  of  the  proceedings  unless  it  appear  that  the 
rights  of  the  accused  have  thus  been  prejudiced.  K.  7,  451,  Mar., 
1864. 

XIV  E  9  a  (8).  Held  that  a  sentence  of  two  months'  confinement, 
which  prescribed  that  the  confinement  for  two  days  out  of  every 
three  should  be  soHtary,  was  unauthorized  as  transcending  the  pro- 
portion fixed  by  the  Army  Regulations;  such  sentence  in  fact  requir- 
mg  that  the  confinement  should  be  solitary  for  40  days  out  of  60,  while 
the  regulations  authorize  but  eighty-four  days  of  solitary  confinement 
in  an  entire  year.     R.  28,  329,  Jan.,  1869. 

XIV  E  9  a  (9).  A  sentence  which,  in  imposing  confinement  (or 
imprisonment — the  two  terms  being  practically  synonymous  in 
sentences  of  courts-martial),  fails  clearly  to  indicate  how  long  the  same 
is  to  continue  is  irregular  and  inoperative.  Such  a  sentence  should 
be  disapproved  by  the  reviewing  authority  unless  it  can  be  procured 
to  be  corrected  by  a  reassembling  of  the  court  for  the  purpose.  R.  16, 
283,  June,  1865. 

XIV  E  9  a  (10).  Where  a  court-martial  sentenced  a  soldier,  in  con- 
nection with  confinement,  to  be  dishonorably  discharged  at  such  date 
as  might  be  fixed  by  the  reviewing  officer,  advised  that  such  a  sentence 

to  take  part  in  the  sentence.  Atty.  Gen.  Gushing,  however,  held  in  a  later  opinion 
(7  Op.  98)  that  whether  the  absent  member  should  resume  his  seat  and  act  upon  his 
return  ''must  depend  upon  his  own  views  of  propriety." 

The  Court-Martial  Manual  provides  (p.  26,  edition  of  1898)  that  "no  member  who 
has  been  absent  during  the  taking  of  evidence  shall  thereafter  take  part  in  the  trial." 
This  provision  was  at  first  viewed  as  mandatory  and  a  failure  to  comply  with  it  held 
to  invahdate  the  sentence  adjudged,  but  later  the  War  Department  apparently  treated 
it  as  directory  (see  Circ.  21,  A.  G.  O.,  1899).  It  was,  however,  manifestly  intended  to 
enjoin  a  complete  abandonment  of  the  practice  referred  to  in  the  text. 

31106°— 12 36 


562  DISCIPLINE   XIV  E  9  a  (ll). 

was  illegal,  as  devolving  upon  the  reviewing  officer  a  duty  pertaining 
to  the  court.i    E.  33,  401,  Oct,  1872. 

XIV  E  9  a  (11).  In  a  case  where  a  court-martial  made  such  excep- 
tions and  substitutions  in  its  finding  upon  the  specification  to  a 
charge  of  '' forgery  to  the  prejudice  of  good  order  and  military  dis- 
cipline" as  to  negative  the  material  allegation  of  false  writing,  lield 
that  there  was  no  legal  basis  for  the  finding  arrived  at  of  guilty  of  the 
charge.     P.  31,  117,  Mar.,  1889. 

XIV  E  9  a  (12).  Held  that  a  finding,  under  a  charge  of  desertion, 
of  not  guilty  of  desertion  but  guilty  of  a  violation  of  the  fortieth 
article  of  war,  was  not  allowable  and  should  be  disapproved;  the 
offense  made  punishable  by  that  article — quitting  guard,  etc. — not 
necessarily  being  or  involving  an  absence  without  leave  in  the  military 
sense,  and  the  finding  not  being  necessarily  a  conviction  of  the 
absence  without  leave  contained  in  desertion.  R.  57,  22,  Oct.,  1888; 
0.  15114,  Aug.  15,  1903. 

XIV  E  9  a  (13)  {a).  A  soldier  in  time  of  war  committed  an  offense 
under  the  fifty-eighth  article  of  war  and  charges  were  preferred. 
Held  that  if  peace  was  declared  before  the  charges  were  brought  to 
trial  the  court  would  have  no  jurisdiction  of  the  charges  under  the 
fifty-eighth  article  of  war.  Held  further  that  if  peace  was  declared 
before  the  sentence  was  imposed  that  the  court  was  without  juris- 
diction in  the  proceedings  and  that  the  sentence  was  illegal  and 
should  be  set  aside.  R.  24,  42,  Dec,  1866;  G.  4916,  Sept.,  1898;  6738, 
July  13,  1899;  13309,  July  25,  1902;  13653,  Nov.  13,  1902;  13770, 
Dec.  6, 1902;  14882,  June  25, 1903;  Jan.  4, 1904;  16596,  Feb.  10, 1905. 
Held  further  that  if  peace  was  declared  before  the  record  had  reached 
the  reviewing  authority,  he  could  not  legally  act  on  the  case,  as  the 
fifty-eighth  article  of  war  is  inoperative  in  time  of  peace.  C.  13653, 
Feb.  18,  1903. 

XIV  E  9  a  (13)  (6).  Held,  where  the  court  awarded  a  less  punish- 
ment under  the  fifty-eighth  article  of  war  than  that  prescribed  for 
the  offense  by  the  local  law,  that  the  sentence  was  illegal  and  inopera- 
tive. C.  11332,  Nov.  19,  1901;  11658,  Nov.  26,  1901;  11757,  Dec.  13, 
1901;  12136,  Apr.  10,  1902;  12213,  Mar.  13,  1902;  12219,  Mar.  15, 
1902;  12286,  Mar.  22,  1902;  12400,  Apr.  10  and  Aug.  18,  1902,  and 
12456,  Apr.  18,  1902. 

XIV  E  9  a  (14).  It  is  an  accepted  principle  of  interpretation  that 
under  those  articles  of  war  which  prescribe  the  sentence  of  dismissal 
upon  conviction  no  punishment  in  addition  to  dismissal  is  authorized. 
Held  therefore  that  all  punishment  in  addition  to  dismissal  should  be 
disapproved  upon  conviction  of  an  offense  under  the  tliirty-eighth 
article  of  war  \R.  14,  330,  Mar.,  1865);  or  of  the  sixty-first  article  of 
war  {R.  4,  283,  Oct.,  1863;  9,  672,  Oct.,  1864;  14,  330,  Mar.,  1865; 
C.  25078,  June  9,  1909);  or  of  the  sixty-fifth  article  of  war  {R.  8,  296, 
Apr.,  1864). 

XIV  E  9  a  (15).  The  fact  that  a  sufficient  cause  of  challenge  exists 
against  a  member  but,  through  ignorance  of  his  rights,  is  not  taken 
advantage  of  by  the  accused,  or  if  asserted  is  improperly  overruled 
by  the  court,  can  affect  in.no  manner  the  validity  in  law  of  the  pro- 
ceedings or  sentence,  though  it  may  sometimes  properly  furnish 
occasion  for  a  disapproval  of  the  proceedings,  etc.,  or  a  remission 

^  See  an  opinion  to  this  effect,  published,  as  approved  by  the  Secretary  of  War,  in 
G.  O.,  90,  WarDept.,  1872, 


DISCIPLINE  XIV  E  9  a  (l6).  663 


in  whole  or  in  part  of  the  sentence.*     R.  8,  S3 4,  June,  1S64;  ^, 
June,  1864;  ^0,  18,  Oct.,  1866;  37,  315,  491,  Feb.  and  Apr.,  1876;  39] 
240,  Oct.,  1877. 

XIV  E  9  a  (16).  Where  ''reasonable  cause"  is,  in  the  judgment 
of  the  court,  exhibited,  the  party  is  entitled  to  some  continuance 
under  article  93.  A  refusal,  indeed,  by  the  court  to  grant  such  con- 
tinuance will  not  invalidate  the  proceedings,  but,  if  tlie  accused  has 
thus  been  prejudiced  in  his  defense,  may  properly  constitute  good 
ground  for  disapproving  the  sentence,^  or  for  mitigating  or  partially 
remitting  the  punishment.  R.  22,  502,  Dec.  1866;  33,  616,  Dec, 
1872;  39,  13,  May,  1876. 

XIV  E  9  a  (17).  A  sentence  of  penitentiary  confinement  (ninety- 
seventh  article  of  war),  in  a  case  of  a  purely  military  offense  is 
wholly  unauthorized  and  should  be  disapproved.  Effect  can  not  be 
given  to  such  a  sentence  by  commuting  it  to  confinement  in  a  miUtary 
prison,  or  to  some  other  punishment  which  would  be  legal  for  sucn 
offense.  R.  24,  202,  Jan.,  1867;  27,  299,  Oct.,  1868;  30,  603,  Aug., 
1870;  C.  439,  Oct.,  1894'  Nor,  in  a  case  of  such  an  offense,  can  a 
severer  penalty — as  death — be  commuted  to  confinement  in  a 
penitentiary.     R.  11,  4iS,  Feb.,  1865;  C.  20994,  Jan.  26,  1907. 

XIV  E  9  b  (1).  While  approval  gives  life  and  operation  to  the  sen- 
tence, disapproval,  on  the  other  hand,  quite  nullifies  the  same.  A 
disapproval  of  the  sentence  of  a  court-martial  by  the  legal  reviewing 
authority  is  not  a  mere  expression  of  disapprobation,  but  a  final 
determinate  act,  putting  an  end  to  the  proceedings  in  the  particular 
case  and  rendering  them  entirely  nugatory  and  inoperative;  and  the 
legal  effect  of  a  disapproval  is  the  same  whether  or  not  the  officer 
disapproving  is  authorized  finally  to  confirm  the  sentence.  But  to 
be  tnus  operative,  a  disapproval  should  be  express.  As  frequently 
remarked  in  the  opinions  of  the  Judge  Advocate  General,  the  mere 
absence  of  an  approval  is  not  a  disapproval,  nor  can  a  mere  reference 
of  the  proceedings  to  a  superior  without  words  of  approval  operate  as 
a  disapproval  of  the  sentence.^  The  effect  of  the  disapproval,  wholly, 
of  a  sentence  is  not  merely  to  annul  the  same  as  such  but  also  to 

Erevent  the  accruing  of  any  disability,  forfeiture,  etc.,  which  would 
ave  been  incidental  upon  an  approval.  R.  26,  568,  June,  1868; 
30,  497,  July,  1870;  32,  1,  Dec,  1870;  50,  121,  Mar.,  1886;  P.  60, 
36,  June,  1893;  C.  2195,  Apr.,  1896. 

Where  the  original  reviewing  officer  disapproves  a  sentence,  to  the 
execution  of  which  the  confirmation  of  superior  authority  is  made 

^  See  Opinion  of  the  Attorney  General  of  January  19,  1878  (15  Op.  432),  in  which 
the  opinion,  expressed  by  the  Judge  Advocate  General  in  the  most  recent  of  the 
cases  upon  which  this  paragraph  is  based — that  the  fact  that  one  of  the  charges  upon 
which  the  accused  was  convicted  was  preferred  by  a  member  of  the  court  who  also 
testified  as  a  witness  on  the  trial  (but  who,  though  clearly  subject  to  objection,  waa 
not  challenged  by  the  accused),  could  not  affect  the  validity  of  the  sentence  of  dis- 
missal after  the  same  had  been  duly  confirmed — is  concurred  in  by  the  Attorney 
General.     And,  to  a  similar  effect,  see  Keyes  v.  United  States,  15  Ct.  Cls.,  532. 

In  G.  C.  M.  O.  88,  Dept.  of  Dakota,  1878,  the  point  is  noticed  that  where  a  challenge 
interposed  by  the  accused  has  been  improperly  disallowed,  a  subsequent  plea  of  guilty 
is  not  to  be  treated  as  a  waiver  of  the  advantage  to  which  he  may  be  entitled  by  reason 
of  the  improper  ruling. 

2  See  G.  C.  M.  0.  35,  War  Dept.,  1867;  do.  128,  Hdqrs.  of  Army,  1876;  G.  O.  24,  Dept. 
of  Arizona,  1874. 

^  See  16  Op.  Atty.  Gen.  312,  where  it  is  remarke'd  that  it  is  not  a  legal  disapproval 
of  a  conviction  or  sentence  for  the  original  reviewing  officer,  in  forwarding  the  pro- 
ceedings for  the  action  of  superior  authority,  to  indorse  upon  the  same  an  opinion  to 
the  effect  that  the  finding  is  not  sustained  by  the  evidence. 


564  DISCIPLINE  XIV  E  9  b  (i)  (a). 

requisite  by  the  articles  of  war — as  where  (in  time  of  peace)  the 
department  commander,  who  has  convened  the  court  in  the  case  of 
an  officer,  disapproves  a  sentence  of  dismissal  adjudged  thereby — 
the  sentence  bemg  nullified  in  law,  there  remains  nothing  for  the 
superior  authority  to  act  upon  and  to  transmit  the  proceedings  to 
him  for  action  mil  be  improper  and  unauthorized,  u.  3,  637,  Aug.j 
1863;  7,  479,  Apr.,  1864;  30,  497,  July,  1870;  32,  630,  May,  1872. 

A  reviewing  officer  can  not  disapprove  a  sentence  and  then  proceed 
to  mitigate  or  commute  the  punisnment,  since,  upon  the  disapproval, 
there  is  nothing  left  in  the  case  upon  which  any  such  action  can  be 
based.     R.  22^,  456,  Oct,  1866. 

It  is  quite  immaterial  to  the  legal  effect  of  a  disapproval  whether 
any  reasons  are  given  therefor,  or  whether  the  reasons  given  are  well- 
founded  in  fact  or  sufficient  in  law.     R.  28,  198,  Oct.,  1868. 

XIV  E  9  b  (1)  (a).  Held  that  disapproval  of  a  finding  of  guilty  has 
the  effect  of  an  acquittal.^  G.  2195,  Apr.  4,  1896;  12168,  Mar.  10, 
1902;  12375,  Avr.  23,  1902. 

XIV  E  9  b  (2).  The  formal  disapproval  by  the  reviewing  authority 
of  an  acquittal  is  a  naked  nonconcurrence  in  the  conclusions  of  the 
court,  and  is  without  legal  effect  upon  the  status  of  the  accused.  He 
still  remains  legally  not  guilty.     C.  14^^,  June,  1895. 

XIV  E  9  c.  Where  a  sentence  in  excess  of  the  legal  limit  is  divisible, 
such  part  as  is  legal  may  be  approved  and  executed.  Thus  where  a 
sentence  of  an  inferior  court  imposes  a  fine  or  forfeiture  beyond  the 
limit  of  the  eighty-third  article  of  war,  the  sentence  may  be  approved 
and  executed  as  to  so  much  as  is  within  the  limit. ^  P.  55,  349,  Sept., 
1892;  59,  27,  Apr.,  1893;  C.  439,  Oct.,  1894;  7363,  Mar.,  1899. 

XIV  E  9  d  (1)  (a).  The  fact  that  a  soldier  has  been  held  in  arrest 
for  an  unreasonably  protracted  period  before  trial,  or  while  awaiting 
the  promulgation  of  nis  sentence,  is  a  good  ground  for  a  mitigation 
of  his  punisnment.     R.  35,  504,  July,  1874. 

XIV  E  9  d  (1)  (6).  In  a  case  where  a  brief  mutiny  (twenty-second 
article  of  war)  among  certain  soldiers  of  a  colored  regiment  was 
clearly  provoked  by  inexcusable  violence  on  the  part  of  their  officer; 
the  outbreak  not  having  been  premeditated,  and  the  men  having 
been,  prior  thereto,  subordinate  and  well  conducted;  advised  that  a 
sentence  of  death  imposed  by  a  court-martial  upon  one  of  the  alleged 
mutineers  should  be  mitigated,  and  the  officer  himself  brought  to 
trial.  R.  26,  64,  Oct.,  1867.  Similarly  advised  in  the  cases  of  sen- 
tences of  long  terms  of  imprisonment  imposed  upon  sundry  colored 
soldiers,  who  (without  previous  purpose  or  revolt)  had  been  provoked 
into  momentary  mutinous  conduct  by  the  recklessness  of  their  officer 
in  firing  upon  them,  and  wounding  several,  in  order  to  suppress  certain 
insubordination  which  might  apparently  have  been  quelled  by  ordi- 
nary methods.^    R.  25,  51,  75,  160,  Aug.-Nov.,  1867, 

*  A  disapproval  of  a  sentence  by  the  proper  reviewing  authority  is  **  tantamount  to 
an  acquittal  by  the  court."     13  Op.  Atty.  Gen.  460. 

2  See  Circ.  No.  12,  A.  G.  O.  1892. 

^  Enlisted  men,  tried  and  sentenced  for  insubordinate  conduct,  where  such  conduct 
has  been  induced  or  aggravated  by  illegal  corporal  punishments  inflicted  upon  them 
bv  superiors,  have  commonly  had  their  sentences  remitted  or  mitiijated.  or  altogether 
disapproved.  See  G.  O.  49,  76,  Northern  Dept.,  1864;  do.  40,  Dept.  of  the  East,  1868; 
G.r.M.O.90,id.,1871;  G.  O.  63,  Dept.  of  DakoUi,  1868;  do.  76,  id.,  1871;  G.C.M.O. 
45,  id.,  ISSO;  do.  03,  Dept.  of  the  South,  1873. 


DISCIPLINE  XIV  E  9  e.  565 

XIV  E  9  e.  Action  taken  by  a  reviewing  officer  upon  the  proceed- 
ing's and  sentence  of  a  court-martial  may  be  recalled  and  modified 
before  it  is  published,  and  the  party  to  be  affected  is  duly  notified  of 
the  same.  After  such  notice  the  action  is  beyond  recall.  An 
approval  can  not  then  be  substituted  for  a  disapproval,  or  vice  versa. 
R.  8,  556,  June,  1864;  31,  15,  Oct.,  1870;  P.  81,  96,  and  125,  Mar., 
1889;  40,  220,  and  353^,  Ayr.,  1890;  60,  179,  June,  1893;  C.  11509, 
Nov.  8,  1901;  17386,  Jan.  14,  1905;  19854,  June  29,  1906;  23140,  Dec. 
9,1911. 

XIV  E  9  f  (1).  When  a  le^al  sentence  of  dismissal  has  been  legally 
confirmed  and  executed,  held  ih&t  the  reviewing  officer's  power  oyer 
the  case  is  exhausted.  This  is  equally  true  whether  the  reviewing 
officer  is  the  President  or  the  commanding  general  in  time  of  war. 
The  reviewing  authority  can  not  recall,  revoke,  rescind,  or  modify 
the  official  act  of  confirmation,  or  the  order  which  is  the  evidence  of 
it.  The  reviewing  authority  as  such  is  functus  officio.  Held,  also  that 
after  the  sentence  has  been  executea  that  the  case  is  beyond  the 
reach  of  the  pardoning  power.*  So  far  as  Executive  power  is  con- 
cerned, the  dismissal  is  linal  and  irreversible.  Held  that  as  the  law 
has  provided  no  court  of  appeal  or  other  revisory  authority,  the  only 
manner  in  which  a  dismissed  officer  can  reenter  the  service  is  by  a 
new  appointment.2  R.  20,  302,  Jan.  8,  1866;  26,  462,  Feb.  19,  1868; 
28,  457,  Mar.  27,  1869;  29,  575,  Jan.  8,  1870;  30,  318,  323,  420,  May 
7,  1870,  and  June  20,  1870;  34,  634,  Nov.  29,  1873;  36,  274,  330,  Feb. 
23,  1875,  and  Mar.  22,  1875;  38,  243,  Aug.  14,  1876;  39,  238,  242,  248, 
Oct.  22  and  23,  1877;  55,  221,  Dec.  19,  1887;  C.  7509,  Jan.,  1900; 
13400,  Oct.  7,  1902;  15712,  Jan.  4,  1904;  16710,  Aug.  9,  1904;  16867, 
Sept.  9.  1904;  22048,  Sept.  7,  1907;  23071,  Apr.  11,  1908. 

XIV  E  9  g.  It  is  within  the  authority  of  a  reviewing  officer,  in  a 
case  in  which  a  soldier  of  his  command,  has  been  sentenced  to  con- 
finement in  a  penitentiary,  to  designate  a  particular  penitentiaT-y 
within  such  command  as  the  place  of  confinement.^  P.  63,  330, 
Jan.,  1894. 

XIV  E  9  g  (1).  Where  the  sentence  directs  confinement  at  hard 
labor  ''in  such  place  as  the  reviewing  authority  may  direct,"  or 
words  to  that  effect,  the  reviewing  authority  may,  the  offense  war- 
ranting it,  designate  a  penitentiary;  but  if  m  such  a  case  he  desig- 
nates a  military  post  as  the  place  of  confinement,  the  place  of  con- 
finement can  not,  pending  its  execution  at  the  post,  legally  be  changed 
to  a  penitentiary.  C.  1875,  Nov.,  1895;  9558,  Jan.  8,  1901;  10828, 
Oct.  28, 1901;  11756,  Dec.  13, 1901;  14495,  Apr.  16, 1903;  14509,  Apr. 
20,  1903. 

XIV  E  9  h.  It  is  not  adding  to  the  punishment,  and  is  authorized 
at  military  law,  to  change  the  place  of  confinement  of  a  prisoner,  if 
such  a  change  is  required  by  the  exigencies  of  the  service,  provided 
that  no  more  severe  species  of  confinement  than  that  contemplated 
in  the  sentence  is  enforced  after  the  transfer.  R.  21,  49,  Nov.,  1865; 
39,  659,  Sept.,  1878;  4I,  123,  Feb.,  1878;  C.  14495,  Apr.  16,  1903; 
14509,  Apr.  20,  1903. 

XIV  E  9  i.  Although,  in  adjudging  a  reprimand,  it  is  generally 
intended  by  a  court-martial  to  impose  a  mild  punishment,  the  quality 

1  Ex  parte  Garland,  4  Wallace,  333,  381,  and  12  Op.  Atty.  Gen.,  548. 

2  See  4  Op.  Atty.  Gen.,  274  and  306;  6  id.  369  and  514;  7  id.  99;  12  id.  548;  14  id.  449. 
^  See  A.  R.  982  of  1910,  which  makes  approval  of  Secretary  of  War  necessary. 


566  DISCIPLINE  XIV  E  9  k. 

of  the  reprimand  is  nevertheless  left  to  the  discretion  of  the  authority 
who  is  to  pronounce  it,  and  it  is  open  to  him  to  make  it  as  severe  as 
he  may  deem  expedient  without  being  chargeable  with  adding  to  the 
punishment.     R.  33,  498,  Nov.,  1872. 

XIV  E  9  k.  Where  a  court-martial  convened  by  a  department  com- 
mander for  the  trial  of  an  officer  sentences  the  accused,  upon  convic- 
tion, to  the  punishment  of  a  loss  of  files  or  steps  in  the  list  of  officers 
of  his  rank,  the  approval  of  the  commander  is  sufficient  to  give  full 
effect  to  the  sentence,  and  no  action  by  superior  authority  can  add 
anything  to  its  effect  or  conclusiveness.  The  code  does  not,  as  in  the 
case  of  a  sentence  of  dismissal,  render  a  confirmation  by  the  Presi- 
dent essential  to  the  execution  of  such  a  punishment;  and  the  fact 
that  the  same  involves  a  change  in  the  Army  Register  does  not  make 
requisite  or  proper  a  revision  of  the  case  at  the  War  Department. 
All  that  is  called  for,  upon  the  approval  of  such  a  sentence  by  the 
commander,  is  simply  to  notify  the  Secretary  of  War  thereof  by  for- 
warding a  copy  of  the  order  promulgating  such  approval.  The  pro- 
ceedings (or  their  substance),  as  affecting  officers  other  than  the 
accused,  may  then  well  be  republished  in  orders  from  the  Adjutant 
General's  Office.  R.  36,  134,  Dec,  1874;  37,  83,  Oct.,  1875;  43,  286, 
Apr.,  1880. 

XIV  E  9  1.  The  record  should  exhibit,  at  the  end  of  the  proceedings 
of  the  court,  the  action  thereon — approval  or  disapproval,  etc. — of  the 
reviewing  authority.  R.  2,  550,  June,  1863.  This,  though  it  has 
sometimes  been  indorsed  on  the  outside  of  the  record,  is  preferably 
and  customarily  written  and  signed  within  the  record  on  a  page  follow- 
ing the  authenticated  judgment  or  other  final  proceeding  of  the  court. 
R.  4,  4^^)  Dec,  1863.  Where  several  cases  are  tried  by  the  same 
court,  the  action  of  the  reviewing  officer  should  be  entered  in  the  rec- 
ord of  each  trial ;  merely  to  indorse  it  upon  the  last  of  a  series  of  cases 
would  be  irregular  as  not  a  compliance  with  the  regulation.  R.  19, 
336,  Jan.,  1866.  So  it  is  irregular  for  the  reviewing  officer,  in  lieu  of 
writing  and  subscribing  his  action  in  the  record,  to  annex  to  it  or  file 
with  it  a  copy  of  a  general  order  promulgating  the  proceedings  and  his 
action  thereon.  R.  1,41 2,  Nov.,  1862.  Where  the  proceedings  are  to  be 
forwarded  to  higher  authority  for  final  action  on  the  sentence,  a  mere 
reference,  as  by  the  words — ''respectfully  referred,  or  forwarded,  to 
the  President "  (or  other  superior)  ''for  action,"  etc.,  is  incomplete  and 
irregular.  In  such  a  case  the  original  reviewing  officer  should  state 
his  approval,  etc.,  in  full  and  formal  terms.  R.  4,  ^^7,  Nov.,  1863; 
7,  132,  Feb.,  1864;  C.,2844,  Jan.,  1897. 

XIV  E  9  m.  The  reviewing  authority  should  properly  authenticate 
the  action  taken  by  him  in  any  case  by  subscribing  in  his  own  hand 
(adding  his  rank  and  command,  as  indicating  his  legal  authority  to 
act)  the  official  statement  of  the  same  as  written  in  or  upon  the  record. 
Impressing  the  signature  by  means  of  a  stamp  is  not  favored,  R.  4t 
567,  Jan.,  1864;  ^^i  513,  Dec,  1866,  and  568,  Jan,  1867. 

XIV  E  9  n  (1).  When  a  trial  by  court-martial  results  in  an  ac- 
quittal or  when  the  sentence  does  not  contain  confinement,  held  that 
the  prisoner  may,  pending  a  review  of  the  proceedings,  be  released 
from  confinement.     C.  12928,  July  8,  1902. 

XIV  F  1.  When  the  proceedings  of  general  courts-martial  were 
promulgated  in  general  court-martial  orders  no  difficulty  was  experi- 
lenced  m  making  the  date  of  the  order  the  same  as  the  date  of  the 
action  of  the  reviewing  authority.     This  is  often  not  practicable  when 


DISCIPLINE  XIV  F  2.  567 

the  promulgation  is  in  special  orders.  As  the  sentence  should  com- 
mence on  the  date  of  the  action  thereon  by  the  reviewing  authority, 
this  date  should  appear  in  the  order  of  promulgation.  C.  1681  ^ 
Aug.  1891. 

XIV  F  2.  Where  a  general  court-martial  has  had  two  presidents,  it 
is  immaterial  whether  the  first  or  the  second  is  mentioned  m  describing 
and  identifying  the  court  in  the  caption  of  the  order  promulgating  its 
proceedings.  It  is  not  indeed  necessary  to  indicate  the  president  at  all. 
H.  13,  324  P"^^'}  1865.  Nor  is  it  necessary  that  such  an  order  should 
set  forth  the  specifications  to  the  charges;  nor — though  this  is  usual, 
where  the  busmess  of  the  court  is  completed — that  it  should  formally 
dissolve  the  court.  R.  3,  84,  June,  1863.  An  order  of  promulgation, 
indeed,  is  a  mere /orm,  habitual  as  a  means  of  communicating  the  pro- 
ceedings or  their  result  to  the  army,  for  the  sake  of  convenience  and 
example,  and  of  making  a  summary  memorandum  of  the  same,  but 
not  necessary  to  the  validity  of  proceedings  or  sentence.*  Though 
no  such  order  is  issued  in  a  case,  the  proceedings  or  sentence  in  the 
same  will  be  formally  complete  and  fully  operative,  if  the  official  action 
thereon  of  the  reviewing  authority  be  duly  indorsed  upon  or  appended 
to  the  record,  and  actual  or  constructive  notice  thereof  is  given  to  the 
party  affected.  R.  32,  102,  Nov.,  1871;  C.  1226,  Apr.,  1895;  3810, 
Jan.  27,  1898;  12623,  May  26,  1902. 

XIV  F  3.  The  officer  authorized  to  act  upon  the  sentence  is  the 
proper  authority  to  promulgate  by  order  the  proceedings  of  the  court 
and  his  action  thereon.  If  the  regiment  of  the  accused  has  moved 
outside  the  limits  of  the  command  at  the  date  of  such  promulgation, 
a  copy  of  the  order  promulgating  the  findings  and  sentence  should 
be  forwarded  to  the  commanding  ofiicer  of  the  accused.  C.  5235, 
Nov.,  1898, 

XIV  G.  Where  a  soldier,  while  undergoing  a  sentence  of  confine- 
ment, was,  by  mistake,  released  by  the  post  commander  before  the 
expiration  of  his  legal  term,  held  that  the  department  commander  by 
whom  the  sentence  had  been  approved  was  legally  authorized  to  order 
the  soldier  to  be  recommitted  for  the  purpose  of  completing  his 
punishment.     R.  27,  4^9,  Bee,  1868. 

XIV  H  1.  In  cases,  however,  of  sentences  of  dismissal  and  of  death, 
imposed  in  time  of  peace,  and  of  some  death  sentences  adjudged  in 
time  of  war,  as  also  of  all  sentences  ''respecting  general  officers," 
while  the  convening  officer  (or  his  successor)  is  the  original  reviewing 
authority,  with  the  same  j^ower  to  approve  or  disapprove  as  in  other 
cases,  yet,  inasmuch  as  it  is  prescribed  by  articles  105, 106, 108,  and 
109  that  the  sentence  shall  not  be  executed  without  the  confirmation 
of  the  President,  the  latter  becomes  in  these  cases  the  final  reviewing 
officer,  when — the  sentence  having  been  approved  by  the  commander 
(for,  if  disapproved  by  him,  there  is  nothing  left  to  be  acted  upon  by 
the  superior) — the  record  is  transmitted  to  him  for  his  action.  A 
similar  division  of  the  reviewing  function  exists  in  cases  in  which 
sentences  are  approved,  but  the  execution  of  the  same  is  suspended, 
and  the  question  of  their  execution  referred  to  the  President,  under 

I  The  insertion,  in  an  order  of  publication,  of  the  proceedings  had  upon  a  reassem- 
bling of  the  court  tor  a  revision  of  its  findings  or  sentence,  though  at  one  time  occa- 
sionallY  resorted  to,  is  now  unusual.  Such  an  addition  can  hardly  be  pertinent  except 
where  it  is  designed  as  a  basis  for  special  comments,  on  tlie  part  of  the  reviewing 
officer,  upon  the  action  of  the  court  in  connection  with  the  matter  of  the  revision. 


568  DISCIPLINE  XIV  H  1  a. 

article  111.  The  same  function  is  also  shared  between  inferior  and 
superior  commanders,  under  article  107,  in  cases  in  which  sentences 
are  imposed  by  division  or  separate-brigade  courts. 

Where  a  general  court-martial  is  convened  directly  by  the  President 
as  Commander  in  Chief,  he  is  of  course  both  the  original  and  final 
reviewing  authority.  But  when  final  action  has  been  taken  by  him 
in  any  of  these  cases,  his  function  as  reviewing  or  confirming  authority 
is  exhausted.  Where  indeed  he  has  approved  or  confirmed  a  punish- 
ment, and  the  same  remains  in  any  part  unexecuted,  he  may  of  course 
exercise  the  quite  distinct  power  oi  pardon;  but  an  approval  or  dis- 
approval once  given  by  him,  and  duly  notified  to  the  accused — 
though  his  action  may  afterwards  be  discovered  to  have  worked  an 
injustice — is  beyond  his  power  to  revise,  reverse,  or  modify.  B.  9, 
U,  May,  1864;  S8,  104,  June,  1876;  42,  91,  Dec,  1878. 

XIV  H  1  a.  Article  106  does  not  require  that  the  confirmation  of 
the  sentence  shall  be  signed  by  the  President^  nor  does  it  prescribe 
any  form  in  which  the  confirmation  shall  be  declared.  Held,  there- 
fore, that  a  written  approval  of  a  sentence  of  dismissal  authenticated 
by  the  signature  of  the  Secretary  of  War,  or  expressed  to  be  by  his 
order,  was  a  sufficient  confirmation  within  the  article ;  the  case  being 
deemed  to  be  governed  by  the  well-established  principle  that  where, 
to  give  effect  to  an  executive  proceeding,  the  personal  signature  of  the 
President  is  not  made  essential  by  law,  that  of  the  head  of  the  depart- 
ment to  which  the  subject  belongs  shall  be  sufficient  for  the  purpose; 
the  assent  of  the  President  to  his  order  or  direction  being  presumed,  and 
his  act  being  deemed  in  law  the  act  of  the  President  whom  he  repre- 
sents.i  R.  9,  44,  May,  1864;  ^3,  654,  Aug.,  1867;  37,  650,  June, 
1876;  38,  107  and  243,  June  and  Aug.,  1876;  39,  296,  Nov.,  1877; 
41,  25,  Se^t,  1877;  4^,  209,  Mar.,  1879;^  4S,  106,  Bee,  1879.  HeU, 
therefore,  in  a  case  which  involved  dismissal  of  an  officer  and  which 
contained  no  entry  of  the  action  of  the  President,  that  the  order  pub- 
lishing the  case  and  setting  forth  his  action  thereon  was  sufficient 
and  legal  evidence  of  such  action.^     P.  22,  436,  Feb.,  1888. 

XIV  H  2.  Although  the  a€t  of  March  3, 1865  (13  Stat.,  489)  (section 
1230  R.  S.),  provides  that  if  the  sentence  of  the  court  be  not  one  of 
death  or  dismissal  the  order  of  dismissal  by  the  President  shall  be 
void — i.  e.,  the  party  tried  shall  be  restored  to  his  office — yet  lield, 
in  a  case  in  which  the  court  acquitted  the  accused,  that  the  Presi- 
dent possessed  the  authority,  vested  in  reviewing  officers  in  all  other 
cases  tried  by  court-martial,   of  returning  the  proceedings  to  the 

^  This  view  has  been  sustained  bv  an  opinion  of  the  Attorney  General  of  June  6, 
1877  (15  Op.,  290),  and  by  a  report  of  the  Judiciary  Committee  of  the  Senate  of  Mar. 
3,  1879  (Rep.  No.  868,  45th  Cong.,  3d  sess.). 

This  subject  has  been  more  recently  considered  by  the  U.  S.  Supreme  Court  in  a 
succession  of  cases  (Runkle  iJ.  U.  S.,  122  U.  S.,  543;  U.  S.  v.  Page,  137  U.  S.,  073;  U.  S. 
V.  Fletcher,  148  U.  S.,  84),  the  effect  of  which  is  that  a  statement  of  approval  of  a  sen- 
tence of  dismissal,  authenticated  by  the  Secretary  of  War,  is  legally  sufficient,  pro- 
vided that  it  appear,  by  clear  presumption  therefrom,  that  the  proceedings  have  actu- 
ally been  submitted  to  the  President. 

In  an  opinion  of  the  Attorney  General  of  Apr.  1,  1879  (16  Op.,  298),  it  was  held  that 
a  confirmation  of  a  sentence  of  dismissal  of  an  officer,  though  irregularly  and  unduly 
authenticated,  would  be  ratified  by  an  appointment  by  the  President  of  another 
officer  to  fill  the  supposed  vacancy,  and  that  the  appointment  thus  made  would  be 
valid  and  operative. 

2  See  2  Op.  Atty.  Gen.,  69;  7  id.,  472;  Williams  v.  TJ.  S.,  17  Peters,  152,  in  connec- 
tion with  Runkle  i;.  U.  S.,  122  U.  S.,  543. 


DISCIPLINE  XIV  H  3.  569 

court  for  revision,  and  was  therefore  empowered  to  reassemble  the 
court  for  a  reconsideration  of  the  testimony,  on  the  ground  that  the 
same  did  not,  in  his  opinion,  justify  the  acquittal.  R.  19,  191,  Nov., 
1865. 

XIV  H  3.  A  discharged  soldier,  serving  a  sentence  of  confinement 
in  a  State  or  Territorial  penitentiary,  still  remains  under  military 
control,  at  least  so  far  that  his  sentence  may,  by  the  President^  be 
remitted,  or  may  be  mitigated — as  for  example  to  confinement  m  a 
military  prison  or  at  a  mihtary  post.  P.  17,  216,  Jan.,  1887;  29,  209, 
Jan.,  1889;  63,  370,  Feb.,  1894. 

XIV  II  4.  The  word  "approved,"  employed  by  the  President  in 

{)assing  upon  a  sentence  of  oismissal,  Jield,  to  be  substantially  equiva- 
ent  to  ''confirmed,"  the  word  used  in  article  106.  In  practice  the 
two  words  are  used  indifferently  in  this  connection.  R.  41, 12,  Sept., 
1877. 

XIV  H  5.  Held  that  the  War  Department  has  no  authority  to  cor- 
rect the  findings  or  sentence  of  a  court-martial  (C.  1624,  Dec.  26, 1895; 
14260,  Mar.  25,  1903);  or  add  to  the  sentence  {C.  187,  June,  1895; 
7450,  Dec,  1899;  14495,  Apr.  17,  1903;  14509,  Apr.  20,  1903).^ 

XIV  I.  Held  that  the  reviewing  authority  may.  when  taking  ac- 
tion on  a  case,  express  his  formal  disapprobation  oi  the  neglect  of  the 
court  to  do  that  which  he,  the  reviewing  authority,  considers  its  duty 
in  connection  with  the  trial  of  the  case,  even  if  such  remarks  might 
be  interpreted  as  a  censure  or  reprimand  of  the  accused.*  C.  1426,0 
Mar.  25,  1903. 

XIV  K  1 .  New  or  second  trials  have  been  of  the  rarest  occurrence 
in  our  military  service.  They  have  only  been  had,  and  are  only  au- 
thorized, where  the  sentence  adjudged  upon  the  first  trial  has  been 
disapproved  by  the  reviewing  authority  and  the  accused  has  asked  for 
a  second  trial.  It  was  held  at  an  early  period  by  Attorney  General 
Wirt  2  that  the  prohibitory  provision  of  the  Articles  of  War  (now  con- 
tained in  art.  102)  that  ''no  person  shall  be  tried  a  second  time  for 
the  same  offense,"  did  not  apply  to  a  case  in  which  the  accused  him- 
self requested  a  new  trial,  the  objection  to  such  trial  being  deemed  to 
be  subject  to  be  waived  by  the  consent  and  action  of  the  party  tried. 
The  privilege  of  applying  for  and  being  allowed  a  retrial — for  it  is  not 
a  right,  since  the  trial  may  be  granted  or  denied  at  the  discretion  of  the 
proper  superior — has  naturally  been  but  seldom  exercised;  parties 
convicted  and  sentenced  being  in  general  satisfied  that  the  proceed- 
ings in  their  cases  should  be  terminated  by  the  disapproval,  on  what- 
ever grounds  the  same  may  be  based.  The  principal  instances  of  new 
trials  in  our  practice  are  that  of  Capt.  Hall  (in  whose  case  Mr.  Wirt's 
opinion  was  given),  and  those  of  which  the  proceedings  are  published 
in  General  Orders  18,  War  Department,  1861,  and  General  Orders  8, 
9,  and  26,  First  Military  District,  1869.  After  a  sentence  has  been 
duly  approved  and  has  taken  effect,  the  granting  of  a  new  trial  is,  of 
course,  beyond  the  power  of  a  military  commander  or  the  President.^ 
R.  37,  492,  Apr.,  1876;  39,  233,  Oct.,  1877;  43,  423,  and  44,  171,  Oct., 
1880;  0.  5654,  July  24,  1899. 

^  See  General  Court-martial  Orders  46,  A.  G.  O.,  Oct.  15,  1883. 

2  1  Op.  Atty.  Gen.,  233.    And  see  6  id.,  205. 

'  That  a  witness  testified  without  being  sworn  is  not  ground  for  new  trial,  when 
no  ojection  was  made  at  the  trial  and  witness  was  cross-examined,  see  Moore  v.  State, 
33S.  W.  Kept.,  1046. 


570  DISCIPLINE   XV  A. 

XV  A.  A  sentence  imposing  confinement  for  six  months  and  the 
reimbursement  of  the  United  States  for  expenses  incurred  in  the  ap- 
prehension of  the  accused  and  his  return  to  his  station  was  disap- 
proved by  the  convening  authority,  upon  the  ground  that  the  items 
of  the  amounts  of  expenditure  had  not  been  proved;  lield,  that  such 
disapproval  can  not  be  concurred  in  by  this  department.  The  tech- 
nical requirement  suggested,  viz,  that  the  record  should  contain  proof 
of  all  expenditures  by  the  Government  in  this  behalf  in  order  to  sus- 
tain the  sentence,  would  hamper  most  materially  the  administration 
of  mihtary  justice.     C.  18764-A,  Nov.  23,  1909. 

XV  B.  Wliile  reasonable  facilities  for  procuring  such  counsel  as  he 
may  desire  should  be  afforded  an  accused,  his  claim  must  be  regarded 
as  subordinate  to  the  interests  of  the  service.  Thus,  where  an  accused 
officer  applied  to  the  department  commander  who  had  convened  the 
court,  to  authorize  a  particular  officer  whom  he  desired  as  counsel  to 
act  in  that  capacity,  and  this  officer  could  not  at  the  time  be  spared 
from  his  regular  duties  without  material  prejudice  to  the  public  inter- 
ests, lield,  that  the  commander  was  justified  in  denying  the  application, 
and  further  that  the  legality  of  the  subsequent  proceedings  and  sen- 
tence in  the  case  was  not  affected  by  such  denial.  R.  32,  519,  Apr., 
1872. 

XV  C.  Unless  it  clearly  appears  to  the  contrary  on  the  face  of  the 
record,  it  is  in  general  to  be  presumed  therefrom,  not  only  that  the 
court  had  jurisdiction  in  the  case,  but  also  that  the  proceedings  were 
sufficiently  regular  to  be  vafid  in  law.^  R.  12,  353,  Feh.,  1865;  C. 
16101,  Apr.  21,  1904. 

*  However  desirable  it  may  have  been,  in  view  of  the  numerous  and  serious  defects 
frequently  occurring  in  the  records  of  courts-martial  during  the  War  of  the  Rebellion, 
and  in  order  to  induce  a  greater  precision  and  uniformity  in  the  preparation  of  such 
records,  to  treat  (as  was  not  infrequently  done)  the  more  grave  of  these  defects  as  fatal 
to  the  validity  of  the  proceedings  or  sentence,  it  is  conceived  that  the  same,  in  general, 
might  properly  have  been  regarded,  and  may  now  be  regarded,  as  only  calling  for,  or 
justifying,  a  disapproval  of  the  proceedings.  It  is  the  effect  of  the  ruling  of  the  civil 
courts  that  where  the  court  on  any  trial  was  legally  constituted,  had  jurisdiction  of 
the  case,  and  has  imposed  a  legal  sentence  or  judgment,  every  reasonable  intendment 
will  be  made  in  favor  of  the  regularity  of  its  proceedings,  and  even  where  the  same 
are  clearly  irregular,  the  validity  of  the  result  will  not  be  deemed  to  be  affected,  pro- 
vided no  statutory  provision  has  been  violated.  See  Hutton  v.  Blaine,  2  Sergt.  & 
Rawle,  75,  79;  Moore  v.  Houston,  3  id.,  197;  Trinity  Church  v.  Higgins,  4  Robt.,  1; 
Edwards  v.  State,  47  Miss.,  581.  And  it  is  further  held  that  the  regularity  or  validity 
of  the  minor  details  of  the  proceedings  may  be  shown  by  evidence  outside  the  record. 
Van  Deusen  v.  Sweet,  51  N.  Y.,  378.  Similarly — it  is  believed — no  omission  or  error 
in  a  record  of  court-martial,  not  in  contravention  of  express  statute,  should,  as  a  general 
rule,  be  regarded  as  absolutely  invalidating  the  proceedings  where  there  remains 
enough  in  the  record  fairly  to  warrant  the  presumption  that  the  legal  requirements 
have  been  complied  with,  or  where  the  reviewing  authority  can  supply  the  defect  from 
his  own  official  knowledge,  or  from  current  orders  or  other  satisfactory  evidence  readily 
available  to  him.  Thus,  where  no  copy  of  the  convening  order  accompanies  the  pro- 
ceedings, but  the  reviewing  authority,  from  the  fact  of  having  issued  it  himself  or  from 
the  records  of  the  command  or  otherwise,  is  officially  apprised  that  the  court  was  duly 
convened,  the  proceedings  are  not  to  be  treated  as  fatally  defective,  but — the  court 
appearing  in  fact  to  have  been  constituted  and  to  have  acted  pursuant  to  the  order — 
may  be  regarded  as  valid  in  law  though  imperfectly  recorded.  Where,  indeed,  the 
record  discloses  in  the  proceedings  of  a  general  court-martial  an  irremediable  defect  in 
a  vital  particular,  as  the  fact  that  the  court  was  composed  of  but  four  members,  the 
proceedings  and  sentence,  if  any,  must  be  held  inoperative,  since  the  statute  law — 
article  75 — has  fixed  five  members  as  the  legal  minimum  for  such  a  court.  But  where 
the  defect  occurs  in  a  less  material  feature,  or  is  one  of  form  only,  the  same,  while  it 
may,  if  of  a  grave  character,  properly  warrant  a  disapproval  of  the  proceedings — in  case 
it  can  not  be  removed  by  a  revision  by  the  court  on  being  reassembled  for  the  purpose — 


DISCIPLINE  XV  C  1.  571 

XV  C  1.  The  record  of  a  court  of  justice  consists  of  two  parts, 
which  may  be  denominated  the  substantive  and  the  judicial  portions. 
In  the  former — the  substantive  portion — the  court  records  (makes  a 
record  of)  or  attests  its  own  proceedinqs  and  acts.  To  this  (record  or 
attestation)  unerring  verity  is  attributed  by  the  law,  which  will 
neither  allow  the  record  to  be  contradicted  in  these  respects  nor  the 
facts  thus  recorded  or  attested  to  be  proved  in  any  other  way  than 
by  the  production  of  the  record  itself  or  by  copies  proved  to  be  true 
in  the  prescribed  manner.*  The  Supreme  Court  of  the  United  States 
has  repeatedly  held  that  a  court-martial  is  a  court  possessing  ample 
and  exclusive  jurisdiction  to  try  and  determine  a  certain  class  of  cases, 
and  that  its  functions  are  those  of  a  court  and  its  acts  judicial  pro- 
ceedings, etc.^  These  proceedings  and  acts  are  all  recorded,  and  the 
record  thus  made  is  ultimately  filed  in  its  proper  place  as  the  record 
of  the  ludicial  proceedings  had.  Where,  thereiore,  after  a  record  of  a 
general  court-martial  had  been  duly  acted  upon  and  the  sentence  (dis- 
missal of  an  officer)  executed,  the  dismissed  officer  filed  affidavits  to 
the  effect  that  the  testimony  of  one  witness  had  not  been  made  a  part 
of  the  record  (which  in  fact  did  not  show  that  any  such  witness  tes- 
tified) and  asked  that  the  sentence  be  set  aside  as  void,  it  was  held 
that  the  record  could  not  be  thus  contradicted  or  impeached,  or  the 
validity  of  the  sentence  questioned.^     C.  6654,  ^f^Vj  1S99. 

XV  I)  1 .  Charges  are  regularly  and  properly  referred  to  a  court- 
martial  for  trial  by  the  officer  who  has  constituted  it  (or  his  superior) , 
and  a  court-martial  may  in  general  properly  decline  to  entertain 
charges  otherwise  submitted.  The  validity,  however,  of  the  pro- 
ceedings or  sentence  of  a  court-martial  in  any  case  will  not  be  affected 
by  the  circumstance  that  the  charges  were  in  fact  irregularly  referred 
to  it  by  a  commander  inferior  to  the  convening  officer  and  without 
havmg  been  approved  by  him.  R.  22,  502,  Dec,  1866;  26, 167,  Nov., 
1867. 

XV  D  2.  Held  that  the  fact  that  the  order  convening  a  court- 
martial  was  dated  on  a  Sunday  did  not  affect  the  validity  of  the  pro- 
ceedings in  a  case  tried  by  the  court  under  such  order.  B.  87,  317 j 
Feb.,  1876. 

XV  D  3.  It  is  not  a  material  objection  to  the  validity  of  the  pro- 
ceedings or  sentence  that  the  regiment  or  corps  of  a  member  of  the 
court  or  of  the  judge  advocate  is  erroneously  stated  in  the  order 

will  not  in  general,  it  is  held,  justify  the  reviewing  authority  in  pronouncing  the  pro- 
ceedings to  be  void,  or  in  treating  them  as  necessarilv  without  legal  effect.  C.  11594, 
Jan.  S  and  Mar.  26,  1902;  11794,  Dec.  19,  1901;  11799,  Dec.  20,  1901;  11831,  Dec.  SO, 
1901. 

^  Best,  Principles  of  Evidence,  p.  578. 

2  See  Dynes  i;.  Hoover,  20  Howard,  65;  Ex  parte  Reed,  100  U.  S.,  13;  Smith  v.  Whit- 
ney, 116  id.,  167;  Johnson  v.  Sayre,  158  id.,  109;  Swaim  v.  U.  S.,  165  id.,  561. 

3  See  the  opinion  of  the  Attorney  General  in  this  case,  published  in  G.  O.  21,  A.  G.  O., 
1900,  the  latter  portion  of  which,  referring  to  the  record  of  the  court-martial,  reads  as 
follows: 

"The  record  is  that  which  the  court  certify  to  have  transpired  on  the  trial,  and 
embodies  the  action  of  the  court.  The  fact  that  the  court  in  due  and  legal  form 
announces  that  it  did  so  and  so,  or  that  so  and  so  transpired,  makes  that  the  record 
and  the  fact,  and  no  one  except  the  court  itself  can  lawfully  alter  that  record.  If  it 
were  to  be  held  otherwise,  there  is  not  a  record  filed  in  the  War  Office  that  could  not 
be  subject  to  attack  by  ex  parte  affidavits  and  that,  too,  at  a  time  when  the  officers  of 
the  court  might  be  dead  or  scattered  to  the  ends  of  the  earth  and  unable  to  defend 
the  solemn  certificate  which  they  made;  and  all  the  judgments  of  courts-martial  as 
filed  and  acted  on  would  be  open  to  perpetual  contradiction  on  subsequent  assertions 
of  interested  parties  which  it  would  be  impossible  to  meet  or  disprove." 


572  DISCIPLINE   XV  D  4. 

convening  the  court,  provided  the  description  given  is  sufficient  to 
identify  the  officer.     R.  35,  433,  June,  1874. 

XV  D  4.  Though  the  injunction  of  article  100,  as  to  the  direction 
to  be  added  to  the  sentence,  should,  of  course,  regularly  be  complied 
with,  a  failure  so  to  comply  will  not  affect  the  validity  of  the  punish- 
ment of  dismissal  adjudged  by  the  sentence.^  R.  22,  608,  Dec,  1866; 
27,  652,  May,  1869. 

XV  El.  The  record  of  a  court-martial  must  show  affirmatively 
whatever  is  made  by  statute  essential  to  its  jurisdiction  and  the 
legality  of  its  proceedings,^  for  example,  that  the  members  and  judge 
advocate  were  sworn  as  enjoined  by  the  eighty-fourth  and  eighty- 
fifth  articles  of  war.  So,  repeatedly  lield  that  if  the  record  failed  to 
show  that  the  court  and  judge  advocate  were  sworn  and  the  omis- 
sion could  not  be  supplied  by  proceedings  on  revision  the  sentence 
was  void;  but  that  if  the  court  had  not  been  dissolved  the  original 
reviewing  authority  or  his  successor  in  command,  the  record  having 
been  transmitted  to  him  either  before  or  after  his  final  action  on  the 
sentence,  could  legally  reconvene  the  court  to  supply  the  omission 
in  the  record,  if  there  was  in  fact  an  omission,  the  only  purpose  of 
such  revision  being  to  make  the  record  conform  to  the  actual  facts } 
in  other  words,  to  speak  the  truth.  R.  1,  487,  Dec,  1862;  2,  154, 
155,  Apr.,  1863;  9,  653,  Sept.,  1864;  H,  ^3,  Nov.,  1864;  19,  336, 
Jan.,  1866;  C.  9600;  Jan.  9,  1901;  15330,  Oct.  I4,  1903;  22163, 
Sept.  30,  1907. 

XV  E  2.  Where  an  officer,  detailed  as  a  member  of  a  general  court- 
martial,  was  dul}?^  relieved  by  order  therefrom,  but  continued  not- 
withstanding to  sit  upon  the  court  during  a  trial,  taking  part  in  the 
findings  and  sentence,  held  that  the  sentence  should  properly  be  set 
aside  as  null  and  void.^     P.  4I,  39,  May,  1890. 

XV  E  3.  Where  a  court-martial  excused  its  judge  advocate  and 
required  its  junior  member  to  act  as  judge  advocate  in  his  stead, 
held  that  its  action  was  wholly  unauthorized  and  that  its  proceedings 
were  properly  disapproved.*  It  is  only  the  convening  authority 
who  can  relieve  or  detail  a  member  or  a  judge  advocate.  R.  28, 198, 
Oct.,  1868. 

XV  E  4.  But  where,  after  the  reviewing  commander  had  approved 
a  sentence  in  general  orders  and  the  court  had  been  dissolved,  it  was 
discovered  that  there  was  sl  fatal  defect  in  the  proceedings,  held  that 
the  commander  would  properly  issue  a  supplemental  order  declaring 
the  proceedings  a  nuffity  and  the  original  order  inoperative  and  with- 
drawn on  account  of  the  defect.^    R.  49,  308,  Aug.,  1885;  P.  31, 

1  Note  the  action  taken  in  the  case  published  in  G.  C.  M.  O.  27,  War  Dept.,  1872. 
The  declaration  of  the  article  that  after  the  publication  "it  shall  be  scandalous  for 
an  officer  to  associate  with"  the  dismissed  officer,  though  it  has,  as  in  cases  published 
in  G.  O.  (A.  and  I.  G.  O.)  of  May  13,  1820,  and  G.  O.  168,  Dept.  of  the  Missouri,  1865, 
been  incorporated  in  the  sentence,  is  not  intended  to  be  and  should  not  be  so  in- 
corporated. 

See  G.  O.  172,  Hdqrs.  of  the  Army,  A.  G.  O.,  Sept.  29,  1899. 

2  Runkle  V.  U.  S.,  122  U.  S.,  543. 

3  See  G.  C.  M.  O.  20,  Dept.  of  California,  1890,  published  after  the  date  of  this 
ruling. 

4  See  G.  C.  M.  O.  62,  War  Dept.,  1874. 

^  See  G.  C.  M.  O.  23,  Dept.  of  Dakota,  1888,  setting  aside  void  sentences  and  re- 
storing to  duty  the  prisoners,  both  of  whom  were  serving  confinement  and  had  been 
under  the  terms  of  the  void  sentences  dishonorably  discharged.  See  also  G.  C.  M. 
O.  20,  Dept.  of  California,  1890,  where  a  void  sentence  was  set  aside,  the  dishon- 
orable discharge  "canceled,"  and  the  prisoner  restored  to  duty. 


1 


DISCIPLINE   XV  E   5.  .  573 

125,  Mar.,  1889;  4I,  39,  May,  1890;  42,  439,  Sept.,  1890;  C.  4642, 
Sept.  14,  1898;  5325,  Nov.  15,  1898;  5484,  Dec.  9,  1898;  6121,  Mar. 
24,   1899;  18764,  Jan.  24,  1908. 

XV  E  5.  A  court-martial  declined  to  receive  a  written  statement 
from  an  accused  party  on  the  ground  that  as  he  had  offered  himself 
as  a  witness  he  nad  had  a  sufficient  opportunity  to  present  such 
evidence  to  the  court  as  he  desired  them  to  consider.  Held,  that  the 
court  had  no  authority  to  abridge  the  right  of  the  accused  to  submit 
a  written  statement,  and  its  refusal  rendered  its  proceedings  in  that 
case  fatally  defective.     C.  17312,  Dec.  22,  I904. 

XV  E  6.  Held  that  it  is  a  fatal  defect  in  a  trial  by  court-martial 
for  the  court  not  to  make  any  finding  on  the  charge.  C.  5166,  Oct.  18, 
1898;  5187,  Oct.  20,  1898. 

XV  E  7.  Held  that  a  sentence  awarded  by  a  court  which  was  with- 
out jurisdiction  is  void,  and  can  not  operate  to  separate  a  soldier  from 
the  service,  and  that  in  the  particular  case  under  consideration  a 
soldier  remained  in  the  Volunteer  service  until  the  date  of  muster  out 
of  the  organization  to  which  he  belonged,  and  that  his  status  at  the 
date  of  his  separation  from  the  service  was  that  of  a  soldier  in  con- 
finement under  charges.     C.  13103,  Aug.  7,  1902. 

XV  E  8.  Held,  that  court-martial  proceedings  are  void  when  the 
order  assuming  to  convene  it  is  null  and  void.  C.  1645,  Sept.  6, 1895, 
and  1499,  July  17,  1895. 

XV  E  9.  Held  that  a  record  which  fails  to  show  that  the  members 
of  the  court  and  judge  advocate  were  duly  sworn  is  fatally  defective. 
Held,  further,  that  the  fatal  defect  is  not  remedied  upon  the  return 
of  the  record  of  revision,  if  the  judge  advocate  and  trie  president  of 
the  court  make  affidavits  to  the  effect  that  the  court  and  the  judge 
advocate  were  duly  sworn,  as  such  affidavits  are  not  a  part  of  the 
proceedings  of  the  court  on  revision.  Held,  further,  in  this  particular 
case  where  the  soldier  had  been  dishonorably  discharged  pursuant  to 
this  sentence  that  the  sentence  should  be  set  aside  and  the  discharge 
issued  thereunder  be  recalled.  C.  9600,  Jan.  9,  1901;  8197,  May  3, 
1900;  15330,  Oct.  14,  1903. 

XV  E  10.  Where  the  record  of  trial  by  court-martial  failed  to  show 
that  the  accused  was  allowed  an  opportunity  to  exercise  his  right  of 
challenge;  lield,  that  the  proceedings  were  fatally  defective  and  the 
sentence  was  void.  G.  13297,  Sept.  11,  1902;  22163,  Sept.  30,  1907; 
18764,  Oct.  23  and  Nov.  17,  1907. 

XV  Ell.  Where  on  trial  by  court-martial  for  fraudulent  enhst- 
ment,  it  was  omitted  to  state  in  the  charges  that  the  party  tried  had 
received  pay  and  allowances,  held  that  the  proceedings  were  fatally 
defective  as  not  constituting  an  offense.     Held,  further,  that  in  view 

If,  however,  the  court  has  not  been  dissolved  it  may  be  reconvened  to  amend  its 
record  to  conform  to  the  actual  facts — that  is,  to  make  it  speak  the  truth.  See  par. 
19,  S.  O.  99,  A.  G.  O.,  1900,  in  which  the  following  is  promulgated:  "By  direc- 
tion of  the  President  the  sentence  in  the  case  *  *  *  publislied  in  paragraph 
1,  Special  Orders,  No.  214,  Headquarters,  Separate  Brigade,  Provost  Guard,  Manila, 
Philippine  Islands,  November  8,  1899,  is  set  aside.  The  record  of  the  trial  failed 
to  show  that  the  members  of  the  court  and  judge  advocate  were  sworn,  and,  on 
being  returned  [by  the  War  Department]  for  necessary  action  the  court  was  not 
reconvened,  as  contemplated  by  paragraph  2,  page  56,  Court  Martial  Manual, 
1898,  but  the  judge  advocate  interlmed  a  statement  in  the  record  that  the  members 
of  the  court  and  the  judge  advocate  were  duly  sworn.  This  action  was  unauthor- 
ized and  invalid.  A  defective  record  returned  for  correction  can  only  be  amended 
to  conform  to  the  actual  facts  and  by  the  court  itself  on  revision  when  duly  recon- 
vened for  the  purpose," 


574  DISCIPLINE  XV  E  12. 

of  the  fact  that  the  accused  had  not  been  subjected  to  a  trial  for  a 
mihtary  offense  that  the  charges  might  be  amended  and  the  accused 
brought  to  trial  before  a  legally  constituted  court,  and  such  trial 
would  not  constitute  a  second  trial  for  the  same  offense  within  the 
meaning  of  the  one  hundred  and  second  article  of  war.  C.  11998, 
Feb.  6,  1902. 

XV  E  12.  Where  a  court,  though  reduced  by  the  absence  of  mem- 
bers, operation  of  challenges,  etc.,  to  below  five  members,  yet  proceeds 
with  and  concludes  the  trial,  its  further  proceedings,  including  its 
finding  and  sentence,  if  any,  are  unauthorized  and  inoperative. 
B.  2,  450,  May,  1863;  7,  UO,  Apr.,  1864;  C.  18764,  Aug.  5,  1908. 

XV  E  13.  Held  that  the  approval  of  a  sentence  is  null  and  void 
where  the  soldier  in  question  has  already  been  discharged  from  the 
service.  C.  24658,  Mar.  25,  1909,  May  17,  1910,  June  23,  1910, 
and  Sept.  23,  1910. 

XV  F  1.  Where  the  prosecution  introduced  but  one  witness  to 
prove  the  falsity  of  the  testimony  under  the  charge  of  perjury,  and 
that  witness  was  contradicted  as  to  a  material  point  and  the  accused 
was  convicted,  advised,  pending  the  execution  of  the  sentence,  that 
the  unexecuted  portion  thereof  be  remitted  on  account  of  the  failure 
of  proof.     R.  53,  644,  May,  1888. 

XV  F  2.  But  the  authority  to  find  guilty  of  a  minor  included  offense, 
or  otherwise  to  make  exceptions  or  substitutions  in' the  finding,  can  not 
justif;y'  the  conviction  of  the  accused  of  an  offense  entirely  separate 
and  distinct  in  its  nature  from  that  charged.  Thus  held  that  it  was 
not  a  finding  of  a  lesser  included  offense  to  find  the  accused  guilty 
merely  of  absence  without  leave  under  a  charge  of  a  violation  of  the 
forty-second  article  of  war  in  abandoning  his  post  before  the  enemy. 
R.  11,  274,  Dec,  I864.  And  so  lield  of  a  finding,  under  a  charge  of  a 
violation  of  article  39,  of  not  guilty  but  guilty  of  a  violation  of  article 
40.  R.  11,  276,  Dec,  I864.  So,  where  a  soldier  charged  with  ''con- 
duct to  the  prejudice  of  good  order  and  military  discipline"  (62d 
article  of  war)  in  concealing  the  fact  that  a  fellow  soldier  nad  appro- 
priated to  his  own  use'certam  pubhc  property,  was  found  not  guilty  of 
the  specification  as  laid,  but  guilty  of  ''having  stolen  the  property 
himself"  and  guilty  of  the  charge,  and  was  accordingly  sentenced  to 
imprisonment,  held  that  such  a  finding  was  manifestly  unauthorized. 
Having  been  found  not  guilty  of  the  offense  set  forth  in  the  specifica- 
tion and  which  alone  he  was  called  upon  to  answer,  he  should  have 
been  acquitted  on  bo th  charge  and  specification .  The  offense  of  which 
he  was  found  guilty  was  not  alleged  against  him,  and  not  being 
included  in  that  charged,  could  not  properly  form  the  subject  of  a  find- 
ing. The  remission  of  his  sentence  tnerefore  recommended.  R.  34, 
569,  Oct.,  1873;  C.  12375,  Apr.  23,  1902;  18764,  Feb.  3,  1906. 

XV  F  3.  If  an  insane  soldier  be  brought  to  trial  by  court-martial  and 
he  is  shown  by  the  record  to  have  been  insane  pending  the  trial,  the 
proceedings  and  sentence,  if  any,  should  be  declared  null  and  inopera- 
tive in  orders.  If  the  question  of  insanity  in  his  case  is  not  raised  till 
after  the  proceedings  have  been  acted  upon  and  the  sentence  has  been 
approved,  and  it  then  appears  that  he  was  actually  insane,  the  sentence 
should  be  remitted.     R.  55,  563,  Apr.,  1888. 

XV  F  4.  In  general,  where  an  accomplice  offers  and  is  admitted  to 
testify  upon  the  part  of  the  Government  against  an  accused  person,  he 
is  called  to  the  stand  under  an  implied  promise  that  no  proceedings 


DISCIPLINE  XV  F  5.  575 

will  be  taken  against  himself,  and  that  the  question  of  his  pardon  will 
be  favorably  considered,  provided  he  makes  a  full  disclosure  of  the 
facts  within  his  knowledge,  and  this  whether  or  not  the  accused  be 
convicted  by  means  of  liis  evidence.*  So,  where  a  party,  who  had  thus 
been  admitted  to  testify  as  witness,  and  had  in  good  faith  made  a  full 
and  frank  statement  of  the  circumstances  of  the  offense  (of  which, 
however,  the  accused  was  acquitted  by  the  court),  was  himself  sub- 
sequently brought  to  trial  for  the  same  act,  and  convicted  and  sen- 
tenced for  his  part  in  the  same,  recommended  that  his  sentence  be 
remitted  by  the  President.     R,  11,  590,  and  14,  259,  Mar.,  1865. 

XV  F  5.  Where  for  an  offense  not  peculiarly  aggravated,  a  court- 
martial  imposed  upon  a  soldier,  in  connection  with  a  forfeiture  of  pay 
for  six  months,  the  further  penalty  of  carrying  a  loaded  knapsack 
weighing  24  pounds  every  alternate  hour  from  sunrise  to  sunset  of 
each  day  (Sundays  excepted)  during  that  period,  lield  that  this  punish- 
ment was  excessive  and  exceptional,  and — the  same*  having  been 
suffere.d  by  the  soldier  for  tnree  months — recommended  that  its 
unexpired  term  be  at  once  remitted.^     R.  26,  520,  Apr.,  1868. 

XV  F  6.  Where,  with  a  plea  of  guilty,  there  was  offered  by  the 
accused  a  written  statement  setting  forth  material  circumstances  of 
extenuation,  and  the  court  without  taking  any  testimony  whatever, 
or  apparently  regarding  the  statement,  proceeded  to  conviction  and 
sentence;  advised — the  case  being  one  in  which  the  sentence  had  been 
partly  executed — that  this  action  constituted  a  reasonable  ground  for 
a  remission  of  a  portion  of  the  punishment.  R.  20, 120, 127,  and  177, 
Nov.,  1865;  15,  1^2,  Apr.,  1865;  29,  421,  Nov.,  1869;  32,  652,  May, 
1872;  33,  42,  June,  1872. 

XV  F  7.  Held  that  the  failure  of  the  accused  through  ignorance  to 
avail  himself  of  his  right  of  challenge  in  a  particular  instance  is  a 
proper  ground  for  remission  in  whole  or  part  of  the  sentence,  or  even 
tor  disapproval  of  the  proceedings,  etc.,  but  lield  that  it  can  affect  in 
no  manner  the  validity  in  law  of  the  sentence.^  C.  10793,  Feb.  28, 
1902. 

XV  F  8.  Held,  that  when  the  members  of  a  court-martial  recom- 
mend clemency,  and  the  reviewing  authority  did  not  mitigate  the 
sentence,  it  is  good  policy  to  remit  a  portion  of  the  confinement  after 
the  sentence  has  been  partially  served  (see  C.  M.  No.  69337);  also 
when  conclusive  evidence  is  presented  of  a  distressing  case  of  depend- 
ency on  the  part  of  the  parents  of  the  prisoner  (C.  M.  No.  70631); 
also  when  it  appears  that  the  evidence  upon  which  the  conviction  was 
based  was  not  absolutely  conclusive,  or  when  new  evidence  is  pre- 

^  See  King  v.  Rudd,  Cowper,  331;  United  States  v.  Lee,  4  McLean,  103;  Whiskey 
Cases,  9  Otto,  594;  Peoplev.  Whipple,  9  Co  wen,  707;  1  ChittyCr.L.,  768,  769;  1  Bishop 
Cr.  Proc.,  sec.  1075, 1076,  and  notes;  also  Report  (No.  352)  of  Committee  on  Judiciary 
of  H.  of  Reps.,  44th  Cong.,  1st  sess..  Mar.  31,  1876. 

2  Article  VIII  of  the  amendments  to  the  Constitution  prohibits  the  infliction  of 
"cruel  and  unusual  punishments. ' '  While  this  provision  does  not  necessarily  govern 
courts-martial,  inasmuch  as  they  are  not  a  part  of  the  judiciary  of  the  United  States, 
it  should  be  observed  as  a  general  rule.  That  the  provisions  of  the  fifth,  sixth,  and 
eighth  amendments  to  the  Constitution,  relating  to  criminal  proceedings,  apply  only  to 
the  courts,  etc.,  of  the  United  States,  see  Barron  v.  Mayor  of  Baltimore,  7Teters,  243; 
Ex'parfe  Watkins,  id. ,  573;  Twitchelli;.  The  Commonwealth,  7  Wallace,  326;  Edwards  v. 
Elhott,  21  id.,  557;  Walker i;.  Sauvinet,  2  Otto,  90 ; Pearson iJ.  Ye wdall,  5id.,294;  IBish. 
Cr.  L.  sec.  725.  See  also  "The  Supreme  Court  on  the  Military  Status,"  by  Judge 
Adv.  Gen.  Lieber,  31  Am.  Law  Rev.,  342,  and  cases  cited. 

3 15  Op.  Atty.  Gen.,  432,  and  Keyes  v.  U.  S.,  109  U.  S.,  336. 


576  DISCIPLINE   XV  G  1. 

sented  which  weakens  materially  the  force  of  the  evidence  which 
sustains  the  conviction,  it  is  proper  to  remit  a  portion  or  the  whole 
of  the  unexecuted  sentence.     C.  29064,  Oct.  7,  1911. 

XV  G  1.  Where  the  proceedings  of  a  court-martial  have  regularly- 
terminated  and  the  sentence  has  been  confirmed  and  ordered  to  be 
executed  by  the  proper  and  final  reviewing  authority,  the  fact  that 
the  record  has  since  been  lost  does  not  impair  or  affect  the  judgment 
of  the  court  and  constitutes  no  legal  obstacle  to  the  enforcement  of 
the  penalty.     R.  9,  238,  June,  186^. 

XV  H  1.  In  March,  1870,  the  president  of  the  National  Home  for 
Disabled  Volunteer  Soldiers  (a  civilian)  convened,  at  the  home,  a 
court-martial  composed  of  eight  inmates  of  the  same  (all  civilians, 
but  designated  by  their  former  rank  in  the  volunteer  service,  as  ''sur- 
geon," ''captain,"  "sergeant,"  and  "private")  for  the  trial,  on 
charges  of  desertion  and  other  offenses,  of  another  (civilian)  inmate. 
The  court  tried  the  accused,  convicted  him,  and  sentenced  him  to  a 
term  of  imprisonment.  The  proceedings  and  sentence  were  approved 
by  the  convening  authority,  who  thereupon  applied  to  the  Secretary 
oi  War  for  an  order  designating  a  military  prison  for  the  confinement 
of  the  party  in  execution  of  his  sentence.  Held  (upon  a  reference  of 
the  case  for  opinion  by  the  Secretary  of  War) ,  that  the  proceedings 
were  unprecedented,  unauthorized  ah  initio,  and  void  as  a  whole  and 
in  detail;  that  the  provision  in  the  act  establishing  the  home,  that 
the  inmates  should  be  "subject  to  the  rules  and  articles  of  war  in  the 
same  manner  as  if  they  were  in  the  Army,"  even  if  it  could  be  regarded 
as  constitutional,  conveyed  no  authority  for  such  a  court  as  that 
constituted  and  composed  in  this  case;  and  that  the  sentence  adjudged 
by  the  same  could  not  legally  be  executed  in  the  manner  proposed  or 
otherwise.!  R.  SO,  286,  Apr.,  1870;  O.  12817,  July  21,  1902;  20120, 
July  31,  1906. 

XV  H  2.  Held,  that  a  court  convened  by  a  lieutenant  colonel  in 
command  of  a  department  was  illegal.  C.  16710,  Feb.  6,  27,  and  29, 
1908.  P.  42,  438,  Sept.  2,  1890.  Similarly  held  that  a  court  con- 
vened by  a  lieutenant  colonel  in  command  of  the  Army  of  Cuban 
Pacification  was  illegal.  0.  16710,  July  23,  24,  26,  and  29,  1908; 
Aug.  12  and  I4,  1908. 

XV  H  3.  Held,  that  for  the  purpose  of  trying  volunteer  officers  gen- 
eral courts-martial  composed  partially  or  wholly  of  regular  officers  are 
illegally  constituted  ^  {0.  7895,  Oct.  2,  1902),  even  if  such  officers  hold 
commissions  in  the  Volunteer  Army.^     G.  5654,  Apr.  25,  1908. 

XV  I  1.  Courts-martial  are  no  part  of  the  judiciary  of  the  United 
States,  but  simply  instrumentalities  of  the  Executive  power.  They 
are  creatures  of  orders;  the  power  to  convene  them,  as  well  as  the 
power  to  act  upon  their  proceedings,  being  an  attribute  of  command. 
But,  though  transient  and  summary,  their  judgments,  when  rendered 
upon  subjects  within  their  limited  jurisdiction,  are  as  legal  and  valid 

*  It  is  inaccurately  stated  in  the  report  of  the  case  of  Renner  v.  Bennett,  21  Ohio  St. 

434  (Dec,  1871),  that  no  inmate  of  the  National  Home  had  ever  been  subjected  to  a 

trial  by  court-martial.     The  instance  referred  to  in  the  text,  however,  is  the  only 

one  known  of  such  a  trial;  and  in  this  case  the  proceedings  were,  on  the  report  of  the 

Judge  Advocate  General,  declared  to  be  void  ab  initio  and  wholly  inoperative  by  the 

Secretary  of  War. 

2  See  McClaughry  v.  Demming,  186  U.  S.,  49,  and  XV,  Comp.  Dec,  875. 
„,.   ^        ,.  240. 


DISCIPLINE   XV  I  2.  577 

as  those  of  any  other  tribunals,  nor  are  the  same  subject  to  be 
appealed  from,  set  aside,  or  reviewed,  by  the  courts  of  the  United 
States  or  of  any  State.^  R.  1,  451,  Dec,  1862;  5,  656,  Dec,  1868; 
55,  486-492,  Mar.,  1888;  G.  10910,  Dec.  3,  1901;  17768,  Apr.  23, 
1905;  19465,  July  19,  1907;  28010,  Mar.  18,  1911. 

XV  12.  So,  where  a  legal  sentence  adjudged  by  a  court-martial  has 
once  been  duly  executed,  the  same  is  irreversible  and  can  not  be 
rescinded  or  modified  by  virtue  of  any  executive  authority  of  revision 
or  pardon  vested  in  the  President.  However  severe  or  unjust  such  a 
sentence  may  have  been,  or  whatever  irregularity  (short  of  an  abso- 
lutely fatal  defect)  may  have  characterized  the  proceedings,  the  case, 
after  the  sentence,  as  approved,  has  been  executed,  is  wholly  beyond 
executive  control.^  R.  36,  274,  330,  Feb.  and  Mar.,  1875;  37, 
243,  390,  420,  Jan.  and  Mar.,  1876;  39,  242,  and  248,  Oct.,  1877; 
P.  34,  334,  Aug.,  1889;  G.  28010,  Mar.  18,  1911. 

XV  I  2  a.  A  legal  sentence  of  court-martial,  when  once  duly 
approved  and  executed,  can  not  be  reached  by  a  pardon,  nor  revoked, 
recalled,  modified  or  replaced  by  a  milder  punishment  or  other  pro- 
ceeding, either  by  the  Executive  or  by  Congress.^    The  only  remedy 

^  See  Dynes  v.  Hoover,  20  How.,  79;  Ex  parte  Vallandigham,  1  Wall.,  243;  Keyes  v. 
U.  S.,  109  U.  S.,  336;  Wales  v.  \\Tiitney,  114  id.,  564;  Smith  v.  Whitney,  116  id.,  167; 
Johnson  v.  Sayre,  158  id.,  109,  118;  Fugitive  Slave  Law  Cases,  1  Blatch.,  635;  In  re 
Bogart,  2  Sawyer,  402,  409;  Moore  v.  Houston,  3  S.  &  R.,  197;  J^Jx  parte  Dunbar,  14 
Mass.,  392;  Brown  v.  Wadsworth,  15  Verm.,  170;  People  v.  Van  Allen,  55  N.  York,  31; 
Peraulti;.  Rand.,  10  Hun.,  222;  Moore  v.  Bastard,  4  Taunt.,  67;  6  Opins.  Atty.  Gen., 
415, 425.  '  'No  acts  of  military  officers  or  tribunals,  within  the  scope  of  their  jurisdic- 
tion, can  be  revised,  set  aside,  or  punished,  civilly  or  criminally,  by  a  court  of  common 
law. "  Tyler  v.  Pomeroy,  8  Allen,  484.  Where  a  court-martial  has  jurisdiction,  *  'its 
proceedings  can  not  be  collaterally  impeached  for  any  mere  error  or  irregularity  com- 
mitted within  the  sphere  of  its  authority.  Its  judgments,  when  approved  as  required, 
rest  on  the  same  basis  and  are  surrounded  by  the  same  considerations  which  give  con- 
clusiveness to  the  judgments  of  other  legal  tribunals,  including  as  well  the  lowest  as 
the  highest  under  like  circumstances. ' '  Ex  parte  Reed,  10  Otto,  13.  See  Winthrop 's 
Mil.  L.  &  P.,  55-57  and  authorities  cited;  3  Greenleaf  Ev.,  470;  Clode  Mil.  F.,  361; 
id.,  M.  L.,  58. 

In  Rose  ex  rel.  Carter  v.  Roberts  (99  Fed.  Rep.,  948)  the  court  said:  '  'It  is  not  the 
office  of  a  writ  of  habeas  corpus  to  perform  the  functions  of  a  writ  of  error  in  review- 
ing the  judgment  of  a  court-martial.  Courts-martial  are  tribunals  created  by  Con- 
gress in  pursuance  of  the  power  conferred  by  the  Constitution,  and  have  as  plenary 
jurisdiction  of  offenses  committed  to  them  by  the  law  military  as  do  the  circuit  and 
district  courts  of  the  United  States  in  the  exercise  of  their  statutory  powers  over 
other  offenses.  The  question  of  jurisdiction  may  be  reached  by  such  a  writ,  as  it 
may  be  when  the  judgment  of  any  tribunal  is  attacked;  but  the  range  and  scope  of 
the  inquiry  is  controlled  by  the  same  rules  and  limitations  in  either  case.  There 
must  be  jurisdiction  to  hear  and  determine,  and  to  render  the  particular  judgment 
and  sentence  imposed;  but,  if  this  exists,  however  erroneous  the  proceedings  may  be, 
they  can  not  be  reviewed  collaterally,  or  redressed  by  haheus  corpus.  These  principles 
have  been  repeatedly  declared  by  the  authorities.  In  re  Davison  (C.  C),  21  Fed. 
618;  Ex  parte  Reed,  100  U.  S.,  13,  25  L.  Ed.,  538;  In  re  Coy,  127  U.  S.,  731,  8  Sup.  Ct. 
1263;  32  L.  Ed.,  274;  Ex  parte  Yarbrough,  110  U.  S.,  651,  4  Sup.  Ct.,  152,  28  L.  Ed. 
274;  U.  S.  V.  Pridgeon,  153  U.  S.,  59,  14  Sup.  Ct.,  746,  38  L.  Ed.,  631." 

Grafton  v.  U.  S.  (206  U.  S.,  333) :  '  'The  decision,  therefore,  of  a  military  tribunal  act 
ing  within  the  scope  of  its  lawful  powers  can  not  be  reviewed  or  set  aside  by  the  courts 
J^nsoni;.  Sayre,  158  U.  S,  109;  Mullanv.  U.  S.,  212  U.  S.,  516;  and  Reaves  v.  AinS' 
worth,  219  U.  S.,  304. 

2  Such  a  sentence  is  '  'no  longer  subject  to  review  by  the  President. "  15  Op.  Atty. 
Gen.,  290. 

^The  well-established  principles  that  mere  irregularities  in  the  proceedings  will 
not  affect  the  validity  of  an  executed  sentence,  and  that  a  legal  sentence  once  duly 
confirmed  and  executed  is  '  'no  longer  subject  to  review  by  the  President, "  so  point- 
edly set  forth  (in  1843)  in  4  Op.  274,  are  further  illustrated  in  15  id.  290,  432. 

31106°— 12 37 


578  DISCIPLINE   XV   I   3. 

for  a  party  who  lias  suffered  injustice  from  such  a  sentence  is  either 
a  new  appointment  to  the  Army  by  the  President  or  some  legislation 
within  the  province  of  Congress  relieving  or  indemnifying  him  for 
and  on  account  thereof.  R.  4I,  538,  Apr.,  1879;  42,  820,  June, 
1879;  63,  1^3,  Oct.,  1886;  P.  47,  337,  May  28,  1891;  G.  UH,  June, 
1898;  6590,  June,  1899;  11786,  Dec.  23,  1901;  11876,  Jan.  11,  1902; 
12313,  Mar.  28,  1902;  12321,  Mar.  29,  1902;  13030,  Sept.  16,  1902; 
13637,  Nov.  11,  1902;  13645,  Nov.  12,  1902;  14898,  July  2,  1903; 
15510,  Nov.  18,  1903. 

XV  I  3.  Held,  that  mere  irregularity  in  the  proceedings  of  a  court, 
even  though  the  rights  of  the  accused  are  prejudiced  in  the  admission 
or  rejection  of  evidence,  or  the  members  of  the  court  are  biased,  or 
the  finding  is  "unjust,  or  the  sentence  of  dismissal  too  severe,  can  not 
cause  a  reopening  of  the  case  where  the  sentence  is  legal  and  it  has 
been  legally  confirmed  and  executed.  Neither  can  they  add  any- 
thing to  the  power  of  the  Executive  or  of  Congress  to  nullify  or 
modify  the  dismissal  as  such.^  R.  20,  302,  Jan.  8,  1866;  26,  462, 
Feb.  19,  1868;  28,  457,  Mar.  27,  1869;  29,  575,  Jan.  8,  1870;  30, 
318,  323,  420,  May  7,  1870,  and  June  20,  1870;  34,  634,  Nov.  29, 
1873;  36,  274,  330,  Feb.  23,  1875,  and  Mar.  22,  1875;  38,  243,  Aug. 
14,  1876;  39,  238,  242,  248,  Oct.  ^2  and  23,  1877;  55,  221,  Dec.  19, 
1887;  0.  7509,  Jan.,  1900;  16710,  Aug.  9,  1904. 

XV  I  4.  Held,  that  after  the  reviewing  authority  has  acted  on  a 
case  and  his  action  has  been  promulgated  in  orders  it  is  too  late  to 
urge  that  the  sentence  is  invalid  on  account  of  weight  of  evidence, 
credibility  of  witnesses,  or  any  other  matter  calling  for  the  exercise 
of  judgment  or  discretion  on  the  part  of  the  court  or  reviewing  author- 
ity. G.  5654,  July  24,  1899;  11509,  Nov.  8,  1901;  17386,  Jan.  I4, 
1905. 

XV  K  1.  Held,  that  a  court-martial  sentence  is  illegal  when  the 
offense  committed  is  not  a  military  one  because  the  court  has  no 
jurisdiction  over  offenses  other  than  military  offenses.  G.  1989, 
Jan.  17,  1896. 

XVI  A  1.  A  regimental  court-martial  has  no  jurisdiction  under  the 
30th  article  of  war  to  redress  a  wrong  which  can  not  be  righted  ex- 
cept by  punishment  of  the  officer  concerned.     G.  855,  Jan.  10,  1895. 

XVI  B  1.  Where,  after  a  garrison  court  (eighty-second  Article  of 
War)  had  tried  the  cases  referred  to  it  but  before  its  proceedings  had 
been  acted  upon,  the  command  of  the  post  was  devolved  upon  the 
officer  who  had  been  president  of  the  court,  held  that  such  officer 
would  legally  and  properly  act  upon  the  proceedings;  the  case  not 
being  one  in  which  the  action  of  the  department  or  other  higher  com- 
mander was  required  by  the  one  hundred  and  ninth  article  of  war. 
R.  43,  268,  Mar.,  1880. 

XVI  C.  The  provision  of  articles  72  and  73  that,  when  the  conven- 
ing commander  is  ' '  accuser  or  prosecutor/'  the  court  shall  be  convened 
by  the  President  or  '^next  higher  commander,"  being  expressly  re- 
stricted to  general  courts,  has  of  course  no  apphcation  to  regiment^ 
or  garrison  courts.  The  same  principle,  however,  should  properly  be 
applied  to  proceedings  before  inferior  courts,  if  it  can  be  done  without 
serious  embarrassment  to  the  service.  R.  34, 353,  598,  July  ami  Nov., 
1873;  35,  138,  Jan.,  1874;  4^,  ^^1,  ^P^-,  1^79. 

iSee4  0p.  Atty.  Gen.,  274. 


DISCIPLINE  XVI  D.  579 

XVI  D.  The  prohibition  of  article  103  relates  only  to  prosecutions 
before  general  courts-martial ;  it  does  not  apply  to  trials  by  inferior 
courts.  So,  courts  of  inquiry  may  be  convened  without  regard  to  the 
period  which  has  elapsed  since  the  date  or  dates  of  the  act  or  acts  to 
be  investigated.!  R.  ^2,  213,  Mar.,  1879;  C.  18772,  Oct.  26,  1005. 
Nor  does  the  rule  of  limitation  apply  to  the  hearing  of  complaints  by 
regimental  courts  under  article  30.     R.  31,  452,  June,  1871. 

XVI  E  1.  A  summary  court  is  not  empowered  to  issue  process  of 
attachment  to  compel  the  attendance  ot  a  civiUan  witness.  P.  51, 
468,  June,  1892. 

XVI  E  2.  An  enlisted  man  is  not  triable  by  a  summary  court  for  a 
violation  of  the  twenty-first  article  of  war,  as  capital  cases  are  in  excess 
of  its  jurisdiction,  ft  6186,  Apr.  8,  1899;  7392,  Dec.,  1899;  10946, 
July  30, 1901;  11360,  Oct.  11, 1901;  11676,  Dec.  2, 1901:  14761,  June 
5,  1903;  16101,  Mar.  29,  1909. 

XVI  E  3.  Held  that  a  summary  court  officer  is  the  executive  officer 
of  the  summary  court  in  the  same  sense  that  the  judge  advocate  is  the 
executive  officer  of  a  general  court-martial,  and  that  the  summary 
court  officer,  therefore,  is  charged  with  the  securing  of  all  vouchers  in 
regard  to  witness  fees,  etc.     C.  7890,  Apr.,  1900;  13418,  Oct.  2, 1908? 

XVI  E  4  a.  Held  that  the  post  commander  should  personally  and 
with  his  own  sign  manual  act  on  the  records  of  inferior  courts-martial 
convened  by  him,  and  should  include  in  his  action  the  date  of  approval, 
as  forfeitures  of  pay  operate  only  from  that  date.     C.  854,  Jo^^^-,  1895. 

XVI  E  4  b.  Held  that  the  post  commander,  being  the  reviewing 
authority,  and  without  whose  approval  the  sentence  can  not  be 
carried  into  effect,  may  require  a  summary  court  to  reconsider  a  sen- 
tence.    C.  6O42,  Mar.  14,  1899. 

XVI  E  4  c.  Held,  that  while  the  law  establishing  the  summary  court 
docs  not  expressly  forbid  a  commanding  officer  to  appoint  himself, 
yet  such  a  detail  is  contrary  to  the  whole  tenor  and  spirit  of  the  act  of 
June  18,  1898  (30  Stat.,  483),  and  of  the  regulations  adopted  in 
furtherance  thereof.     C.  18121,  June  I4,  1905. \ 

XVI  E  5.  Held,  that  when  the  ''court"  consists  of  the  second  in 
rank,  and  he  is  the  accuser,  the  case  is  to  be  tried  by  the  post  com- 
mander; and  when  the  ''court"  consists  of  the  post  commander,  and 
he  is  the  accuser,  the  case  is  to  be  tried  by  a  regimental  or  garrison 
court-martial.''     P.  56,  279,  Nov.  4,  1892;  G.  635,  Nov.  15,  1894. 

XVI  E  6.  The  summary  court  act  of  June  18,  1898  (30  Stat.,  483), 
provides,  inter  alia:  ' '  That  the  commanding  officer  of  each  garrison, 
fort,  or  other  place,  regiment  or  corps,  detached  battalion,  or  company, 
or  other  detachment  in  the  Army,  shall  have  power  to  appoint  for  such 
place  or  command,  or  in  his  discretion  for  each  battalion  thereof,  a  sum- 
mary court  to  consist  of  one  officer  to  be  designated  by  him, "  for  the  trial 
of  enlisted  men,  and ' '  that  when  but  one  commissioned  officer  is  present 
with  a  command,  he  shall  hear  and  finally  determine  such  cases." 
This  was  intended  to  provide  for  the  trial  of  enlisted  men  under  all 
conditions  of  service.  Held,  therefore,  that  the  surgeon  in  command 
of  the  Army  and  Navy  General  Hospital,  Hot  Springs,  Ark.,  being  an 
officer  of  the  Army,  has  authority  under  this  act  to  appoint  a  sum- 

1  See  6  Op.  Atty.  Gen.,  239. 

2  gee  Cir.  No.  88,  War  Dept.,  Oct.  31 ,  1908. 

3  See  Cir.  No.  32,  War  Dept.,  June  30,  1905. 
*Cir.  15,  A.  G.  O.,  1892. 


580  DISCIPLINE   XVI   E  7. 

mary  court  for  the  trial  of  enlisted  men  of  the  Army  under  his  com- 
mand. G.  856,  Feb.,  1900.  Held,  also,  where  the  division  field  hos- 
pital and  the  division  field  ambulance  company  were  independent 
commands  and  responsible  direct  to  the  division  surgeon  and  division 
commander,  that  their  respective  commanders  were  competent  to 
appoint  summary  courts  for  the  same.^  C.  4966,  Oct.,  1898.  And  the 
surgeon  in  command  of  a  United  States  hospital  ship  is  a  command- 
ing officer  within  the  meaning  of  the  summary  court  act  and  may 
appoint  such  court  for  the  trial  of  enlisted  men  on  such  ship.  C.  A931 , 
Sept.,  1898;  1U27,  Apr.  22,  1903. 

XVI  E  7.  Held,  that  the  commanding  officer  of  a  brigade  post  has 
authority  as  convening  officer  of  a  summary  court  to  retain  within 
himseK  the  appointing  power  of  all  summary  courts  within  his  com- 
mand, and  that  he  may  establish  a  summary  court  for  each  regularly 
organized  battalion  and  squadron  composing  his  command,  and  may 
organize  other  detachments  serving  at  the  post  into  temporary  bat- 
talions for  the  piupose  of  summary  court  jurisdiction,  but  that  if  he 
does  not  exercise  the  authority  which  is  thus  vested  in  him  hj  statute 
he  allows  the  appointing  power,  including  the  power  of  review,  to  pass 
to  regimental  commanders  by  the  operation  of  law  to  appoint  sum- 
mary courts  within  their  regiments.  C.  22592,  Jan.  11,  1908,  July  8, 
1909. 

XVI  E  8  a.  Held,  that  when  a  command  in  the  execution  of  a 
practice  march  passes  out  of  the  territorial  limits  of  the  division  in 
which  it  is  stationed,  the  summary  court  report  will  be  sent  to  the 
headquarters  of  that  division.  Held,  further,  that  if  such  a  command 
constitutes  a  part  of  a  brigade  camp,  such  reports  will  at  its  close  be 
transferred  to  the  headquarters  of  the  division  to  which  the  troops 
returned.     C.  20389,  Sept  19,  1906;  28498,  Aug.  23,  1911. 

XVI  F.  The  duty  devolves  upon  a  department  commander  of 
supervising  the  proceedings  of  regimental  and  garrison  courts-martial 
transmitted  to  his  headquarters.  Held,  that  if  he  discovers  a  mate- 
rial error,  defect,  or  omission,  he  should  bring  the  same  to  the  atten- 
tion of  the  j)roper  inferior  commander,  and  if  such  error  is  a  fatal 
defect,  such  inferior  commander  should  issue  an  order  declaring  the 
sentence  void.  But  if  such  error  is  not  a  fatal  defect,  such  inferior 
commander  can  remit  the  unexecuted  punishment.  R.  35,  174,  Feb., 
1874- 

XVII  A  1.  Held,  that  a  company  commander  under  the  control  of 
the  commanding  officer  of  the  post  is  authorized  to  dispose  of  dere- 
lictions in  his  company,  which  would  be  within  the  jurisdiction  of  an 
inferior  court-martial,  by  requiring  extra  tours  of  company  or  post 
fatigue  unless  the  soldier  demands  trial.  C.  3589,  Oct.,  1897;  19701, 
May  15,  1906;  20051,  July  13,  1906;  21211,  Mar.  14,  1907. 

XVII A  2.  Held,  that  commanding  officers  are  not  required  to  bring 
every  dereliction  of  duty  before  a  court  for  trial,  but  should  endeavor 
to  prevent  their  occurrence  by  admonitions,  withholding  of  privileges, 
and  taking  such  other  steps  as  may  be  necessary  to  enforce  discipline. 
C.  19701,  May  15,  1906;  20051,  July  13,  1906. 

^  While  the  nomenclature  of  the  various  hospitals  and  ambulance  companies  has 
changed,  the  principle  remains  the  same,  that  if  it  is  an  independent  command,  the 
right  to  appoint  a  summary  court  exists  in  the  commander.  And  also  see  cir.  49, 
A.  G.  O.,  1890. 


DISCIPLINE   XVII   A3.  581 

XVII  A  3.  Punishment  by  sentence  of  court-martial.  {See  Articles 
of  War;  and  Sentence,  under  Discipline.) 

XVII  A  4  a.  The  old  rule  that  the  term  of  a  confinement  (of  so 
many  months,  years,  etc.),  imposed  by  sentence  of  court-martial, 
commenced  on  the  day  on  wliich  the  prisoner  was  dehvered  to  the 
proper  ofiicer — as  the  officer  in  charge  of  the  prison  or  commanding 
the  post — to  be  confined  according  to  the  sentence  (R.  11,380,  Jan., 
1865),  having  been  found  inconvenient  in  practice,  there  was  sub- 
stituted for  it  by  General  Order  21,  Headquarters  of  the  Army,  of 
1870,  the  rule  that  'Hhe  confinement  shall  be  considered  as  com- 
mencing at  the  date  of  the  promulgation  of  the  sentence  in  orders." 
To  hold  that  under  this  order  the  commencement  of  the  confinement 
must  be  delayed  until  notice  of  it  has  reached  the  prisoner  might  lead 
to  the  same  abuse  which  the  order  was  intended  to  correct.  R.  80, 
150,  Mar.,  1870;  C.  18165,  Dec.  26,  1905,  and  Jan.  12,  1906. 

XVII A  4  b.  When  a  soldier  at  two  successive  trials  is  sentenced  to 
confinement,  the  two  sentences  will  be  held  to  be  cumulative  when 
they  are  both  approved  on  the  same  day  (R.  34,  479,  Sept.,  1873; 
C.  1608,  Aug.  1,  1895;  12402,  Apr.  14,  1902;  19422,  Mar.  19,  1906); 
or  when  the  soldier  is  serving  one  sentence  wlien  brought  to  trial  a 
second  time  as  a  result  of  which  he  received  a  sentence  of  confine- 
ment. R.  38,  409,  Jan.,  and  556,  Apr.,  1877;  43,  102,  Dec,  1879; 
C.  1609,  Aug.,  1895;  12402,  Apr.  14,  1902;  19972,  Jan.  27,  1906; 
19740,  May  18,  1906.  Wlien  a  sentence  is  cumulative  upon  one  that 
is  pending,  its  execution  wiU  properly  commence  at  the  date  when 
the  pending  confinement  term  terminates  whether  by  expiration  of 
time  or  by  remission.  R.  31,  315,  Apr.,  1871;  32,  670,  June,  1872; 
34,  479,  Sept.,  1873;  35,  433,  June,  1874;  38,  4^,  Apr.,  1876,  and  556, 
Apr.,  1877;  4S,  102,  Dec.,  1879;  C.  1609,  Aug.  1,  1895;  19422,  Mar. 
19,  1906;  17200,  Jan.  25,  1907;  19546,  July  21,1908.  The  principle 
of  cumulative  sentence  apphes  even  where  a  prisoner  escapes  from  a 
pending  confinement,  enlists,  deserts,  is  arrested,  tried  for  the  second 
desertion,  convicted  and  sentenced  to  confinement.  P.  38,  124, 
Jan.,  1890. 

XVII A  4  0.  When  a  military  prisoner  escapes,  he  must  upon  capture 
serve  the  unexecuted  portion  of  his  sentence.  This  is  true  when  the 
prisoner  escapes  as  an  accused  person  during  the  progress  of  his  trial 
and  the  court  thereafter  sentences  him  to  confinement  which  is  ap- 
proved and  ordered  executed.^  C.  14767,  Feb.  6, 1905;  23941,  Oct.  7, 
1908,  and  Mar.  1,  1909.  Also  when  the  soldier  after  sentence,  but 
before  approval  of  same  by  reviewing  authority,  escapes.  R.  29,  7, 
June,  1869.  Also  when  pending  the  execution  of  the  sentence  he 
escapes.  R.  38,  119,  July,  1876;  P.  46,  176,  Mar.,  1891;  51,  I46, 
Dec,  1891;  59,  173,  Apr.,  1893;  C.  133,  Auq.  6,  1894;  3702,  Dec  3, 
1897;  17393,  Oct.  17,  1900;  17163,  Nov.  16, 1904.  The  one  hundred 
and  third  article  of  war  does  not  prevent  the  escaped  prisoner's  being 

1  See  U.  S.  V.  Loughory  (13  Blatchford,  267,  Fed.  Cases  No.  15631);  State  v.  Peacock 
,(50  N.  J.  Law,  34);  Stone  v.  Commonwealth  (2  Ky.  I,aw  Rep.,  305);  Commonwealth 
V.  Smith  et  al.  (163  Mass.,  411);  Commonwealth  v.  McCarthy,  (103  Mass.  Rep.,  459); 
Fight  r.  State (7  Ohio,  180);  Wilson  ^.  State  (2  Ohio  St.,  319):  Price  i^.  State (36 Miss., 
531);  Hill  V.  State  (17  Wis.,  675);  State  v.  Wamire  (16  Ind.,  357);  Lvnch  v.  Common- 
wealth (88  Penn.  St.,  189).     See  also  G.  O.,  45,  War  Dept.,  Mar.  12,  1909. 


582  DISCIPLIZSTE  XVII  A  4  d. 

required  upon  capture  to  serve  the  remaining  portion  of  his  sentence, 
as  stated  above.^     G.  1812,  Feb.  17,  1909. 

XVII  A  4  d.  Prison  authorities  have  no  right  to  open  and  inspect 
letters  addressed  to  or  sent  by  their  prisoners  without  the  consent 
of  the  latter.  They  can,  however,  retain  such  letters  unopened  which 
may  come  into  their  possession  until  such  time  as  the  parties  may  be 
tried  or  released,  or  the  letters  otherwise  disposed  of  under  judicial 
process.^     C.  2469,  July,  1896. 

XVII  A  4  e.  Held,  that  the  susj)ension  of  the  sentence  of  a  court 
martial  before  or  during  its  execution  is  without  precedent.  C.  8838, 
Aug.,  1900.  Held,  that  a  post  commander  is  not  authorized  under 
the  one  hundred  and  twelfth  article  of  war  to  suspend  the  execution 
of  a  sentence  by  a  garrison  court-martial  during  good  behavior  on  the 
part  of  soldiers  so  sentenced.  R.  30,  115,  Feb.,  1870;  C.  20797,  Dec. 
13,  1906;  27738,  Jan.  21,  1911. 

XVII  A  4  f .  A  remission  of  part  of  a  sentence  of  confinement  leaves 
the  reduced  sentence  as  though  it  were  the  original,  and  the  prisoner 
is  entitled  to  good-conduct  time  on  the  reduced  sentence.  R.  37, 
490,  Apr.,  1876;  P.  44,  66,  Nov.,  1890. 

XVII A4  g  (1).  The  proceeds  of  sales  of  articles  manufactured  by  the 
prisoners  at  the  military  prison  are  clearly  public  funds,  and,  in  the 
absence  of  any  statutory  provision  in  regard  to  their  disposition — sec- 
tion 1351,  R.  S.,  only  requiring  that  they  shall  be  '' accounted  for"  as 
received  by  the  commandant — can  not  legally  be  expended  in  repair- 
ing or  improving  the  prison  building  or  otherwise  without  authority 
of  Congress.     R.  42,  24,  Oct.,  1878. 

XVII  A  4  g  (2).  Held  that,  under  the  general  authority  vested  in  the 
Secretary  of  War  by  section  1351,  R.  S.,  to  direct  as  to  the  disposition 
of  the  articles  manufactured  b}^  the  convicts  at  the  military  prison  at 
Leavenworth,  and  in  the  absence  of  anything  in  section  3716,  R.  S., 
or  elsewhere  in  the  statute  law  relating  to  contracts  precluding  such 
action,  the  Secretary  was  empowered  to  order  that  the  shoes  made 
by  the  prisoners  should  be  turned  over  to  the  Quartermaster  Depart- 
ment for  issue  to  the  Army.     R.  4I,  4^^^,  Oct.,  1878. 

XVII  A  4  g  (3).  It  is  not  adding  to  the  punishment  in  executing  a 
sentence  of  confinement  to  require  the  prisoner  to  perform  work  pre- 
scribed for  prisoners  of  his  class  by  the  statute  law.  Thus  persons  sen- 
tenced to  imprisonment  at  the  military  prison  at  Leavenworth, 
though  ^'hard  labor"  be  not  in  terms  included  in  the  sentence,  may 
legally  be  employed  in  the  labor  or  at  the  trades  indicated  bv  section 
1351,  R.  S.,  R.  37,  640,  June,  1876;  51,  601,  Mar.,  1877;  P".  42,  101, 
July,  1890. 

XVII  A  4  g  (4).  Held  that  the  commander  of  the  prison  post  at 
.ilcatraz  Island  was  authorized  to  make  and  enforce  all  necessary  and 
proper  regulations  for  the  safe  keeping  and  government  of  the  mili- 
tary prisoners  there  confined;  that  he  might,  by  the  use  of  force,  if 
needful,  but  using  no  more  force  than  was  necessary,  prevent  civil- 
ians from  landing  on  the  island  in  violation  of  the  regulations,  and 
put  such  persons  off  the  island  as  had  landed  there  contrary  to  the 
same;  that,  in  an  extreme  case,  as  where  a  civilian,  engaged  in  aiding 
a  prisoner  to  escape,  and  no  other  means  of  prevention  would  avail, 

*  See  Dolan*8  case,  101  Mass.,  219. 

2  See  Circ.  8,  A.  G.  O.,  1896;  also  U.  S.  Postal  Guide,  May,  1896,  p.  13. 


DISCIPLINE   XVII  A  4   g  (5).  583 

he  might  properlv  order  the  party  to  be  fired  upon  by  the  guard. 
R.  32,  525,  Apr.,  1872. 

XVII  A  4  g  (5).  Held  that  the  private  money  of  a  general  prisoner 
confined  in  a  United  States  mihtary  prison  may  not  be  forfeited  even 
if  received  as  a  bribe  for  assisting  in  violating  prison  rules,  and  if 
taken  possession  of  by  the  commandant  it  must  be  returned  to  the 
general  prisoner  at  date  of  release.^  C.  26782,  May  28,  1910;  25281, 
Aug.  17,  1910. 

XVII  A  4  g  (6) .  Where  a  member  of  a  United  States  military  prison 
guard  had  shot  and  killed  a  general  prisoner  to  prevent  liis  escape, 
held,  that  it  is  not  good  policy  to  have  a  pardon  issued  to  him  for 
purpose  of  restoring  him  to  duty  without  trial  even  though  innocent ; 
that  such  procedure  should  be  taken  as  would  keep  the  soldier  in  the 
hands  of  the  miUtary  authorities,  and  that  he  should  be  arraigned 
before  a  general  court-martial  to  determine  whether  or  not  he  was 
justified  in  taking  the  extreme  measures  he  did  to  prevent  the  escape. 
0.  27119,  Aug.  3,  1910. 

XVII  A  4  g  (7).  Held  that  a  tailor  shop  can  be  established  in  the 
military  prison  at  Fort  Leavenworth  at  which  general  prisoners  can 
be  employed  in  the  making  of  civilian  clothing  for  issue  to  discharged 
general  prisoners.     C.  26193,  Feb.  10,  1910,  and  Mar.  12,  1910. 

XVII  A  4  h  (1).  Persons  convicted  by  courts-martial  and  sent  to 
the  United  States  penitentiary  under  the  provisions  of  the  sundry 
civil  act  of  March  2,  1895  (26  Stat.  333),  can  not  be  turned  over  to  a 
United  States  marshal  for  transportation  to  the  penitentiary,  but 
must  be  delivered  there  by  the  military  authorities.  C.  1201,  July, 
1895;  20052,  July  13,  1906. 

XVII  A  4  i.  Where  a  sentinel  at  Fort  Ethan  Allen  fired  upon  and 
killed  a  general  prisoner  who  was  attempting  to  escape,  such  general 
prisoner  not  being  under  his  immediate  charge,  held  that  the  guard 
at  a  military  post  must  be  considered  as  a  whole,  and  the  mere  fact 
that  certain  members  of  the  guard  are  assigned  to  the  duty  of  watch- 
ing certain  designated  prisoners  does  not  relieve  the  other  members 
of  the  guard  of  the  duty  of  preventing  the  escape  of  prisoners. 
C.  23423,  June  12,  1908. 

XVII  B  1  a.  Two  soldiers  at  a  military  post  refused  to  do  extra 
fatigue  duty  imposed  upon  them  by  their  captain  for  failing  to  make 
a  proper  score  at  target  practice.  The  captain  caused  one  of  them  to 
be  tied  up  by  his  wrists  with  his  feet  partly  raised  from  the  ground  for 
some  six  hours,  and  the  other  to  be  so  tied  up  for  about  one  hour  and 
to  be  immersed  several  times  in  a  water  hole.  Held  that  such  action 
was  wholly  without  justification,  the  punishment  inflicted  not  being 
sanctioned  by  law  or  usage,  or  warranted  by  the  circumstances  of 
the  case,  and  that  the  officer  was  clearly  amenable  to  trial  under  the 
sixty-second  article  of  war.     P.  60,  257,  June,  1893. 

XVII  B  1  b.  A  soldier,  who  had  been  improperly  allowed  with 
others  of  a  detachment  to  enter  a  saloon  and  drink,  became  disorderly 
and  insubordinate  in  public,  without  however,  committing  violence. 
The  captain  commanding,  in  attempting  to  repress  him,  assaulted 
him  by  striking  him  on  the  head  with  a  Government  rifle  with  such 
force  as  to  fell  him  to  the  ground  and  render  him  senseless,  at  the 
same  time  inflicting  a  severe  contused  lacerated  wound  on  his  right 

1  19  Cyc,  1359. 


684  DISCIPLINE  XVII  B  1  C. 

ear  which  rendered  it  deaf  for  several  days.  There  was  nothing  like 
a  mutiny  and  no  serious  disorder  in  the  command.  Held  that  the 
violence  of  the  officer  was  greatly  in  excess  of  his  authority  and 
wholly  unjustifiable,  the  fact  that  the  soldier  was  under  the  influence 
of  hquor  going  to  aggravate  the  officer's  offense.  And  recommended 
that  the  captain  be  brought  to  trial  under  article  62.^  P.  ^5,  52, 
June,  1893. 

XVII  B  1  c.  Where,  upon  the  trial  of  a  soldier  convicted  of  insub- 
ordinate conduct  and  severely  sentenced,  it  was  shown  in  evidence 
that  at  the  time  of  such  conduct  he  was  subjected  to  punitive  treat- 
ment by  his  company  commander,  who  caused  him  to  be  tied  up  and 
gagged,  and  it  appeared  that  there  was  no  indication  of  mutiny  or 
other  exigency  in  the  command,  lield  that  such  treatment  was  arbitrary 
and  unwarranted  by  law  or  usage,  and  a  military  offense  on  the 
part  of  the  officer,  and  advised  that  clemency  be  exercised  in  the  case 
of  the  soldier.     R.  S3,  193,  Oct,  1886. 

XVII  Bid.  Respect  for  the  person  and  office  of  a  sentinel  is  as 
strictly  enjoined  by  military  law  as  that  required  to  be  paid  to  an 
officer.  As  it  is  expressed  m  the  Army  Regulations  ''all  persons  of 
whatever  rank  in  the  service  are  required  to  observe  respect  toward 
sentinels."  Invested,  as  the  private  soldier  frequently  is  while  on 
his  post,  with  a  grave  responsibility,  it  is  proper  that  he  should  be 
fully  protected  in  the  discharge  of  his  duty.  To  permit  any  one,  of 
whatever  rank,  to  molest  or  interfere  with  him  while  thus  employed, 
without  becoming  liable  to  a  severe  penalty,  would  obviously  estab- 
lish a  precedent  highly  prejudicial  to  the  interests  of  the  service.  So 
where,  in  time  of  war,  a  lieutenant  ordered  a  soldier  of  his  regiment, 
who  had  been  placed  on  duty  as  a  sentry  by  superior  authority,  to 
feed  and  take  care  of  his  horse,  and,  upon  the  latter  respectfully 
declining  to  leave  his  post  for  the  purpose,  assailed  him  with  abusive 
language — Jield  that  a  sentence  of  dismissal  imposed  by  a  court- 
martial  upon  such  officer,  on  his  conviction  of  this  offense,  was  fully 
justified  by  the  requirements  of  military  discipline.  B.  18,  598, 
Feb.,  1866. 

XVII  B  1  e.  Held  that  a  company  commander  has  no  authority  to 
require  a  soldier  to  contribute  money  to  the  company  fund  in  lieu 
of  trial  by  court-martial.     0.  20051,  July  13,  1906. 

XVII  B  1  f.  The  pay  of  the  offender  or  offenders  can  be  resorted 
to  under  the  fifty-fourth  article  of  war  only  for  the  purpose  of  the 
''reparation."  A  military  commander  can  have  no  authority  to  add 
a  further  amount  of  stoppage  by  way  of  'punishment.  R.  8,  671,  July, 
1864. 

*  In  j)roper  cases,  of  course,  as  where  violence  is  employed,  escape  attempted,  etc., 
by  soldiers  who  are  mutinous  or  disorderly,  or  in  arrest  under  charges,  force  may  be 
used  against  them  according  to  thenecessities  of  the  case;  see  G.  0. 53,  Hdqrs.  of  Army, 
1842;  do.  2,  War  Dept.,  1843;  G.  C.  M.  O.  47,  Hdqrs.  of  Army,  1877;  G.  O.  53,  Dept. 
of  Va.  and  N.  C,  1864;  do.  40,  Dept.  of  the  East,  1868;  G.  C.  M.  O.  112,  id.,  1870; 
do.  90  id.,  1871;  G.  O.  23,  Dept.  of  the  Lakes,  1870;  do.  106,  Dept.  of  Dakota,  1871; 
do.  93,  Dept.  of  the  South,  1873;  do.  31,  Mil.  Div.  of  the  Atlantic,  1873;  G.  C.  M.  O. 
37  Dept.  of  Texas,  1880.  This,  however,  is  prevention  and  restraint,  not  punishment; 
the  authority  to  use  the  needful  force  in  such  cases  will  not  justify  the  superior,  when 
the  offender  is  repressed  or  apprehended,  in  subjecting  hiia  to  arbitrary  punitory 
treatment. 


DISCIPLINE   XVII   Big.  585 

XVII  Big.  Held  that  a  reviewing  officer  is  not  authorized,  after 
disapproving  an  acquittal,  to  order  that  tlie  accused  be  confined  or 
otherwise  punished.^     R.  12,  2^9,  Jan.,  1865. 

XVII  B  2  a  (11).  Reduction  to  the  ranks  was  authorized  to  be 
imposed  as  a  punishment  by  courts-martial  upon  commissioned 
officers  of  the  Army,  on  conviction  of  absence- without-leave — by  the 
act  of  March  3,  1863,  c.  75,  s.  22;  and,  upon  conviction  of  the  offense 
of  neglecting  or  refusing  to  turn  over  to  the  proper  official  any  cap- 
tured or  abandoned  property  coming  into  the  possession  of  the  party — 
by  the  act  of  March  12,  1863,  c.  120,  s.  6.  Phis  punishment,  which 
involved  the  dismissal  of  the  officer  {R.  16, 1^.81^.,  Aug.,  1865)  is  no  longer 
legal;  the  statutory  provisions  indicated  being  impliedly  confined  in 
their  application  to  tne  period  of  the  Civil  War  (or  for  a  limited  period 
succeedmg  the  same),  and  not  being  reenacted  in  the  Revised 
Statutes.2     C.  22215,  Oct,  15,  1907. 

XVIII  A.  A  board  of  officers  convened  to  investigate — obtain, 
or  hear  and  examine,  evidence — and  report,  can,  in  the  absence  of 
specific  statutory  authority,  exercise  none  of  the  peculiar  legal 
functions  either  of  a  court-martial  or  of  a  court  of  inquiry.  R.  2,  3^0, 
May,  1863;  21,  335,  Apr.,  1866;  26,  492,  Mar.,  1868;  32,^  3,  May, 
1871;  41,  263,  June,  1878.  Its  members  can  not  be  sworn;  it  can  not 
swear  witnesses;^  civihan  witnesses  can  not  be  compelled  to  appear 
before  it;  nor  are  the  witnesses  who  appear  and  testify  legally 
entitled  to  any  compensation  for  attendance  or  travel.  R.  11,  672, 
Apr.,  1865;  21,  335,  supra;  26,  4^2,  supra.  Such  a  board  can  not 
try,  nor  can  it  sentence.     R.  11,  672,  supra;  32,  3,  supra.     There  is 

^  In  general  orders,  punishments  inflicted  merely  at  the  will  of  military  com- 
manders, have  been  repeatedly  condemned  as  illegal  and  forbidden  in  practice. 
See  G.  O.  81  (A.  G.  O.),  1822;  do.  53,  Hdqrs.  of  Army,  1842;  do.  2,  4,  War  Dept.,  1843; 
do.  39,  Hdqrs.  of  Army,  1845;  do.  645,  War  Dept.,  1865;  do.  49,  Northern  Dept.,  1864; 
do.  22,  Dept.  of  the  Platte,  1867;do.  44,  id.,  1871;  do.  63,  Dept.  of  Dakota,  1868;  do. 
106,  id.,  1871;  do.  40,  Dept.  of  the  East,  1868;  G.  C.  M.  O.  112,  id.  1870;  do.  90,  id., 
1871;  G.  O.  14,  Dept.  of  the  South,  1869;  do.  1,  23,  93,  id.,  1873;  do.  9,  Mil.  Div.  of  the 
Atlantic,  1869;  do.  31,  id.,  1873;  do.  23,  Dept.  of  the  Lakes,  1870;  G.  C.  M.  0. 50,  Dept. 
of  the  Missouri,  1871.  Officers  who  have  resorted  to  such  punishments  have  been 
repeatedly  brought  to  trial  and  sentenced.  See  G.  O.  (A.  &  I.  G.  O.)  of  June  30, 
1821;  do.  8  (A.  G.  O.),  1826;  do.  28,  id.,  1829;  do.  64,  id.,  1832;  do.  2,  6,  68,  War  Dept., 
1843;  do.  39,  Hdqrs.  of  Army,  1845;  do.  53,  Dept.  of  Va.  &  N.  C.  1864;  do.  22,  Dept.  of 
the  Platte,  1867;  do.  9,  Mil.  Div.  of  the  Atlantic,  1869;  do.  14,  Dept.  of  South,  1869; 
G.  C.  M.  O.  50,  Dept.  of  the  Missouri,  1871.  See  G.  O.  No.  10,  Hdqrs.  Third  Separate 
Brigade,  Dept.  of  North  Philippines,  Batangas,  Mar.  14,  1902,  which  publishes  the 
acquittal  of  an  officer  who  was  tried  for  "  bucking  and  gagging  "  a  drunken  prisoner, 
and  causing  cold  water  to  be  thrown  in  his  face.  See  also  G.  O.  No.  67,  Hdqrs.  of  the 
Army,  Washington,  Dec.  6, 1897,  which  publishes  the  action  of  a  court  in  the  case  of  an 
officer,  who  caused  a  prisoner  to  be  dragged  to  the  place  of  the  summary  court, 
when  that  prisoner  refused  to  proceed  to  that  place. 

^  Cases  of  officers  sentenced  to  this  punishment,  upon  conviction  under  the  first 
named  statute,  are  published  in  G.  O.  27,  War  Dept.,  1864;  do.  80,  Dept.  of  the  Gulf, 
1863;  do.  38,  Dept.  of  the  East,  1864;  do.  36,  Middle  Dept.,  1864;  do.  5,  2d  Div.,  5th 
Army  Corps,  1864;  G.  C.  M.  O.  25,  51,  Army  of  Potomac,  1864;  do.  12  id.,  1865.  No 
instance  has  been  met  with  of  the  imposition  of  this  punishment  upon  a  conviction 
under  the  latter^  statute.  In  some  few  cases,  during  the  Civil  War,  this  punishment 
was  adjudged — illegally — for  offenses  other  than  those  specified  in  the  acts  designated 
in  the  text.  See  case  of  Brig.  Gen.  D.  G.  Swaim,  J.  A.  Gen.,  who  was  sentenced  to 
reduction  in  rank ;  in  this  case  the  record  was  returned  to  the  court  by  the  President 
for  amendment  of  sentence. 

^  But  see  sec.  183,  R.  S.,  as  amended  Mar.  2,  1901,  which  grants  authority  for  the 
administering  of  oaths  in  certain  cases. 


586  DISCIPLINE   XVIII   B. 

properly  no  ''accused"  party  required  or  entitled  to  appear  before 
it  as  beiore  a  court-martial  or  court  of  inquiry.  R.  2,  SJfO,  supra.  It 
is  not  restricted  by  law  as  to  the  period  of  its  sittings,  nor  is  it  affected 
by  any  statute  of  limitations.  R.  26,  4p^j  Mar.,  1868.  Its  members 
(though  in  this,  indeed,  it  does  not  differ  from  a  court  of  inquiry) 
may  present  two  or  more  reports  where  they  can  not  concur  in  one. 
R.  41,  207,  Apr.,  1878. 

XVIII  B.  As  a  court  of  inquiry  can  not  be  ordered  in  a  case  of  a 
civilian,'^  a  body  of  officers  convened  to  inquire  into  and  report  upon 
the  facts  of  the  case  of  an  officer  who  has  been  legally  dismissed  from 
the  service  is  a  mere  board  of  investigation,  and  can  exercise  none 
of  the  special  powers  of  a  court-martial  or  court  of  inquiry.  R.  4-1, 
263,  June,  1878. 

XVIII  C.  Held  that  parties  who  appeared  and  testified  before, 
and  at  the  instance  of,  an  officer  charged  with  the  preliminary  investi- 
gation of  a  case,  but  were  not  required  to  attend  at  the  subsequent 
trial,  were  not  legally  entitled  to  witness  fees.     R.  21,  46S,  July,  1866. 

XVIII  D.  The  Ai^my  appropriation  acts  now  appropriate  money 
''for  expenses  of  courts-martial,  courts  of  inquiry,  and  compensation 
of  reporters  and  witnesses  attending  the  same."  Reporters  for  courts 
of  inquiry  may  therefore  be  paid  out  of  such  appropriation.  If  the 
employment  of  a  reporter  for  a  board  of  officers  should  be  authorized 
by  the  Secretary  of  War,  payment  for  such  service  would  have  to  be 
made  from  the  appropriation  for  the  contingent  expenses  of  the  Army. 
C.  6971,  Sept.,  1899. 

XVIII  E.  As  to  character  of  enlisted  men.     (See  Discharge.) 

DISHONORABLE   DISCHARGE. 

See  Discharge  I  A;  IV  to  V. 

Articles  of  War  XLVIII  D. 

Desertion  X  A. 

Commutation  or  mitigation  of. See  Articles  of  War  CXI  I  Ala;  D. 

Continuous  service  can  not  antedate See  Pay  and  allowances  I  C  5  b  (2). 

Date  of See  Enlistment  I  D  3  c  (9). 

Disqualifies  for  deserter's  release See  Desertion  XVII  B. 

Effect  on  status See  Discharge  XXII  B. 

Discipline  VIII  I  1  c;  d. 

Retirement  II  A  1  c. 
Enlistment  after .See  Enlistment  I  D  3  c  (2);  (18);  (e);  (g)] 

(i);(hy,(i). 

Expulsion  from  Army See  Desertion  V  F  4. 

Forfeitures  with See  Pay  and  allowances  III  C  1  a  (1)  to 

(2);  If;  2  0(4). 

Fraudulent  enlistment  after See  Enlistment  I  A  9  f  (2);  (4);  (7)  (6). 

Illegal,  revocable See  Discharge  XVI  G  to  H. 

Issu£  of  clothing  after See  Pay  and  allowances  II  A  3  a  (4) 

(e)  [11. 

Not  revocable See  Discharge  XV  B. 

Of  retired  soldier See  Retirement  II  F  3. 

Renders  service  not  honest  and  faithful See  Enlistment  I  D  3  c  (11). 

Sentence  of  imprisonment  includes See  Discharge  XIII  D  5. 

^But  in  the  case  of  a  contract  surgeon  see  G.  O.  No.  206,  War  Dept.,  Wash.,  Dec. 
17,  1908,  which  publishes  the  findings  of  a  court  oi  inquiry,  which  court  investigated 
the  conduct  of  a  contract  surgeon,  and  recommended  that  his  connection  with  the 
military  service  be  terminated. 


I 


DISMISSAL DRAFT.  587 

DISMISSAL. 

See  Office  IV  E  to  F. 

Effect  on  status See  Discipline  VIII  I  1;  1  a;  b. 

For  political  activity See  Civilian  employees  XI  A  4. 

Irrevocable  after  execution See  Discipline  XI V  E  9  f  ( I) ;  XV  C  1. 

Is  dishonorable See  Pardon  XV  B. 

Of  officer See  Office  IV  E  to  V. 

Mandatory  articles See  Discipline  XII  B  3  i. 

Mitigation  of. See  Articles  of  War  CXII  Ala. 

Not  revocable See  Discharge  XVII  A. 

Of  cadet,  not  revocable See  Discharge  XVIII  A. 

Of  officer  while  prisoner  of  war See  War  I  C  11  d  (1). 

Of  volunteer See  Office  V  A  7  f . 

Payment  to See  Pay  and  allowances  I  A  1  a. 

DISOBEDIENCE. 

See  Articles  of  War  XXI  A  to  E  2; 
LXII  C  12.  • 

DISRESPECT. 

By  soldier See  Articles  of  War  LXII  C  11. 

Of  superior See  Discipline  V  D  2  b . 

Toward  commanding  officer See  Discipline  II  D  13  a;  17  a. 

DISTRICT   OF   COLUMBIA. 

Laws  of,  over  military  reservation See  Public  property  V  H  2  c. 

National  Guard  of See  Militia  XVI  to  XVII. 

Naval  Militia  of See  Militia  XVIII  B. 

Volunteers See  Office  IV  A  2  d  (3)  (a). 

DIVINE   SERVICE. 

Attendance  at See  Articles  of  War  LII  A ;  B. 

DIVISION   COMMANDER. 

See  Articles  of  War  LXXII  A  to  I  3  a  (1). 

Assignment  to  command  by See  Command  IV  A;  B. 

Reviewing  authority See  Discipline  XIV  A  2. 

DIVORCE. 

See  Articles  of  War  LXI  B  14. 
DOCK. 
Repair  of. See  Appropriations  LII. 

DOUBLE   AMENABILITY. 

See  Articles  of  War  LIX  D;  L  1. 

Custom  as  to  punishment  under See  Discipline  XII  B  2  c. 

Of  soldier See  Articles  of  War  LIX  L  2;  CII  A  to  I. 

Discipline  III  E  4;  VIII  D  4;  H  3. 

DRAFT. 

During  Civil  War See  Desertion  XVI  Dig. 

Enlistment  II  A  to  F. 

Muster-in  not  necessary See  Volunteer  Army  II  B  1  f  to  g. 

Of  deserter See  Desertion  VI  C. 


688  DEAYAGE DWELLING. 

DRAYAGE. 

Of  equipment  for  militia See  Militia  VII  A.  ' 

DROPPING. 

Deserter See  Discharge  XIII  A  2. 

Discipline  VIII  1 1. 
Noncommissioned  officer  for  desertion:  re- 
turns him  to  position  of  private See  Desertion  VII  A  1. 

Not  legal  evidence  of  desertion See  Desertion  IX  F. 

Officer,  for  desertion See  Desertion  XX  to  XXI. 

Enlistment  I  B  3  b. 

Officer  is  discharged  without  honor See  Discharge  III  F  2;  XVI  H. 

Removal  ofcharge  when  dropped  erroneously  .8ee  Desertion  XVI  C  4  to  7. 
Volunteer  for  desertion See  Volunteer  Army  IV  D  1  a  (5)  (6). 

DRUG. 

Prescription ^ See  Discipline  V  D  5. 

Use  of. See  Articles  op  War  XXXVIII  A. 

DRUMMED   OUT   OF   SERVICE. 

See  Desertion  I  D. 
By  sentence See  Discipline  XII  B  3  h. 

DRUNKENNESS. 

Defense See  Discipline  V  D  5. 

Enlistment  while  suffering  from See  Enlistment  I  A  9  f  (5). 

Evidence  of. See  Discipline  XI  A  8;  8  a;  XII  A  12  a. 

Off  duty See  Discipline  II  D  18  a. 

On  duty See  Articles  of  War  XXXVIII  A  to  C  1; 

LXII  C  13;  14. 

Public See  Articles  or  War  LXI  B  6;  7;  LXII  D. 

Discipline  VIII  B. 
Punishment  for See  Discipline  XII  B  2  d. 

DUEL. 

See  Articles  of  War  XXVI  A;  LXII  D. 

DUPLICATION   OF   PAY  ACCOUNT. 

See  Articles  op  War  LX  A  1;  LXI  B  15. 
Trial  for See  Discipline  IIIE5a;  VD2c. 

DUTY. 

Extra  by  noncommissioned  officer See  Army  I  B  1  a  (3). 

Extra  by  soldier See  Pay  and  Allowances  I  C  6  to  7. 

Mounted See  Pay  and  Allowances  I  B  7  to  8. 

Offenses  committed  while  on See  Articles  of  War  LXII  C  5  a. 

Paroled  prisoner  of  war See  War  I  C  11  d  (2)  (c). 

Relief  from See  Communications  I  B  2;  C. 

Target  practice See  Claims  V. 

Trial  judge  advocate See  Discipline  I V  C  1  to  4  b. 

Unauthorized  badges  can  not  be  worn  on See  Insignia  of  Merit  II  A  2  a;  b. 

Unauthorized  medals  can  not  be  worn  on. .  .See  Insignia  of  Merit  I  D. 

DWELLING. 

Forcible  entry See  Desertion  III  B. 

Discipline  I  A  2;  2  a. 


EASEMENT EIGHT-HOUR   LAW  :   SYNOPSIS.  589 

EASEMENT. 

Expenditures  on  land  subject  to See  Appropriations  XVIII. 

Title  subject  to See  Public  Property  VIII  C. 

In  shore  line See  Command  V  A  3  f . 

EFFECTS. 

Deceased  officer  or  soldier See  Articles  of  War  CXXVI  A;  CXXVII 

A. 
Officer  who  deserts See  Desertion  XX  C. 

EFFICIENCY  REPORT. 

By  regimental  commander See  Articles  op  War  XXIX  D. 

EIGHT-HOUR  LAW.^ 

I.  SCOPE  OF  THE  ACT  OF  AUGUST  1,  1892 Page  589 

n.  "PUBLIC  WORKS  OF  THE  UNITED  STATES"? Page590 

m.  REQUIREMENTS  AS  TO  PREPARATION  OF  CONTRACTS  FOR  WORK 

COMING  WITHIN  THE  PURVIEW  OF  THE  ACT  OF  AUGUST  1,  1892. 

DUTIES  OF  OFFICERS  HAVING  CHARGE  OF  "PUBLIC  WORKS  OF 

THE  UNITED  STATES"  IN  REGARD  TO  ENFORCEMENT  OF  THE 

ACT  OF  AUGUST  1,  1892 Page  691 

IV.  APPLICATION  OF  THE  ACT  OF  AUGUST  1,  1892,  TO  RIVER  AND 

HARBOR  WORK. 
V.  WHAT  CONSTITUTES  AN  "EXTRAORDINARY  EMERGENCY"  UNDER 

THE  ACT  OF  AUGUST  1,  1892? 
VI.  HOW  EXISTENCE  OF  AN  "EXTRAORDINARY  EMERGENCY"  IS  TO 

BE  DETERMINED Page  592 

vn.  FOREMEN  AND  INSPECTORS  WHO  DO  NOT   COME  WITHIN  THE 

APPLICATION  OF  THE  ACT  OF  AUGUST  1,  1892 Page  593 

vm.  CERTAIN  CASES  TO  WHICH  THE  ACT  OF  AUGUST  1,  1892,  DOES  NOT 

APPLY Page  694 

IX.  WHAT  CONSTITUTES  EIGHT  HOURS  WORK Page  596 

X.  CERTAIN  PERSONS  WHO  COME,  AND  CERTAIN  PERSONS  WHO  DO 
NOT  COME,  WITHIN  THE  APPLICATION  OF  THE  ACT  OF  AUGUST 
1,  1892. 
XI.  WHO  SHOULD  INSTITUTE  PROCEEDINGS  IN  THE  CASE  OF  A  VIO- 
LATION OF  THE  ACT  OF  AUGUST  1,  1892. 
SECRETARY  OF  WAR  HAS  NO  AUTHORITY  TO  REQUIRE  OF  BID- 
DERS AND   CONTRACTORS   FOR  SUPPLIES  THAT  THEY  SHALL 
OBSERVE  AN  EIGHT-HOUR  LAW. 
THE  ACT  OF  AUGUST  1,  1892,  IS  PENAL  AND  GIVES  NO  CAUSE  OF 
ACTION  TO  RECOVER Page  596 

I.  The  original  statute  on  this  subject — the  act  of  June  25,  1868, 
incorporated  in  section  3738,  R.  S. — merely  provided  that  eight  hours 
should  ''constitute  a  day's  work"  for  laborers,  etc.,  employed  by  the 
United  States.  It  has  been  held  by  the  Supreme  Court  ^  (U.  S.  v. 
Martin,  94  U.  S.,  400),  that  this  enactment  was  merely  ''a  direction 
by  the  Government  to  its  agents,"  not  ''a  contract  between  the  Gov- 

^  Prepared  by  Lieut.  CoL  John  Biddle  Porter,  judge  advocate,  assistant  to  the 
Judge  Advocate  General. 
2  And  see  19  Op.  Atty.  Gen.,  685. 


590  EIGHT-HOUR  LAW  II. 

ernment  and  its  laborers,  that  eight  hours  shall  constitute  a  day's 
work,"  and  that  it  did  not  ^'prevent  the  Government  from  making 
agreements  with  them  by  which  their  labor  may  be  more  (or  less)  than 
eight  hours  a  day."  The  act  thus  failed  of  its  apparent  object.  To 
cure  this  defect  the  act  of  August  1,  1892  (27  Stat.  340)  was  passed. 
Held,  therefore,  that  the  term  ''public  works  of  the  United  States," 
used  in  the  first  section  of  the  later  act,  should  not  be  narrowly  con- 
strued. P.  55,  155,  Aug.  22,  1892;  C.  5/^29,  Dec.  2,  1898;  18811, 
Nov.  4,  1905. 

II.  Held,  that  the  construction  of  levees  on  the  banks  of  the  Mis- 
sissippi River,  in  accordance  with  the  plans  of  the  Mississippi  River 
Commission,  was  a  public  work  of  the  United  States  in  the  sense  of 
the  act  of  August  1,  1892  (27  Stat.  340),  although  the  United  States 
did  not  own  the  land.^  A  proprietorship  in,  or  jurisdiction  over,  the 
thing  constructed  is  not  necessary.  The  United  States  expends  an- 
nually more  than  $20,000,000  for  the  improvement  of  rivers  and  har- 
bors, but  the  greater  part  of  this  is  done  without  acquiring  title  to,  or 
jurisdiction  over,  the  premises.^  The  question  under  the  act  is  not  in 
whom  is  the  title  or  lurisdiction,  but  who  is  doing  the  work.  The 
construction  of  these  levees  is  a  particular  work  appropriated  for  by 
Congress  and  to  be  contracted  for  by  the  United  States.  It  is  there- 
fore one  of  the  '' public  works  of  the  United  States,"  and  subject  to 
the  provisions  of  this  statute.  P.  55, 155,  Aug.  22, 1892.  It  has  been 
held  that  the  following  are  ''public  works."  (1)  Works  of  river  and 
harbor  improvement;  U.  S.  v.  Jefferson  (60  Fed.  Rep.,  736).  Under 
this  head  would  fall  the  street  work  and  the  construction  of  the  large 
sewers  of  the  District  of  Columbia.  (2)  All  field  works  constructed 
for  public  use,  as  railways,  canals,  waterworks,  roads,  etc.  Ellis  v. 
Com.  Council  of  Grand  Rapids  (82  N.  W.  Rep.,  244) ;  Winters  v.  City 
of  Duluth  (84  N.  W.  Rep.,  788,  789).  (3)  Sewers  have  been  ex- 
cluded, though  built  by  the  public,  where  the  cost  is  charged  to  abut- 
ting owners;  City  of  Denver  v.  Rhodes  (9  Colo.,  554;  113  Pac.  Rep., 
729,  733).  (4)  Roads  are  public  works;  Lane  v.  State  (43  N.  E. 
Rep.,  244,  245).  The  only  utterance  of  this  office  on  the  subject  will 
be  found  in  paragraph  I  ante  (Eight-hour  law)  in  which  it  is  said  that 
the  words  "public  works"  as  used  in  the  act  of  1892,  should  not  be 
narrowly  construed.  It  clearly  covers  works  of  river  and  harbor  im- 
provement,^ and  probably  public  buildings  as  well,  but  there  is  no 
decision  that  expressly  includes  buildings.     C.  18811  y  Nov.  4, 1905. 

Where  a  vessel  belonging  to  the  United  States  is  moored  to  a  dock, 
wharf,  or  landing,  owned  by  the  Government,  held  that  the  work  of 
repairs  on  such  vessel  by  a  contractor  would  not  be  on  a  "public 
work"  of  the  United  States  as  contemplated  in  the  act  of  August  1, 
1892.     C.  20169,  Apr.  26,  1910. 

Having  regard  to  the  opinions  of  the  Attorney  General  *  that  the 
law  is  not  applicable  to  a  vessel  of  the  Navy  under  construction  in  the 
operation  of  a  contract  with  a  private  establishment,  held,  that  it  is 
likewise  inapplicable  to  repairs  on  a  Government  transport  which  are 
similarly  made  by  contract.     C.  20169,  Oct.  8,  1906,  and  Aug.  2, 1907. 

1  U.  S.  V.  Garbish,  222  U.  S.,  257. 

2  26  Op.  Atty.  Gen.,  30. 

3  See,  however,  on  this  point  Ellis  v.  U.  S.  (206  U.  S.,  245). 

*  26  Op.  Atty.  Gen.,  30;  Ibid.,  36.  See,  however,  the  act  of  Mar.  4,  1911  (36  Stat., 
1287),  and  the  opinion  of  the  Comptroller  thereon  (XVIII  Comp.  Dec,  93). 


EIGHT-HOUR  LAW   HI.  591 

Where  a  contract  is  given  for  repairs  to  a  Government  vessel,  the 
repairs  to  be  made  at  a  Government  dock  or  under  conditions  which 
continue  the  vessel  in  the  active  control  of  tiie  Government  authori- 
ties, the  eight-hour  law  may  perhaps  apply,  but  when,  as  in  the  case 
before  us,  the  vessel  is  turned  over  to  a  contractor  for  repairs,  at  the 
contractor's  plant,  and  so,  for  the  time  being,  out  of  the  active  control 
of  the  Government,  Ueldy  that  the  restrictions  of  the  act  of  August  1, 
1892,  do  not  apply.     0.  20169,  Feb.  27  1907,  and  Feb.  9,  1909. 

III.  Held,  that  it  was  not  essential  that  the  requirement  of  the  act 
of  August  1,  1892,  bo  embodied  in  a  contract,  the  law  itself  being  self- 
actuig.^  The  responsibility  rests  on  contractors  to  comply  with  it, 
irrespective  of  the  terms  and  conditions  of  their  contracts.  The 
oliicers  who  enter  into  contracts  on  behalf  of  the  United  States  are 
not  charged  with  the  duty  of  enforcing  the  law  with  reference  to 
those  with  whom  they  contract;  the  latter  being  directly  responsible 
in  the  matter.^  Any  construction  by  the  War  Department  of  the 
requirements  of  the  act  would,  if  erroneous  and  not  sustained  by  the 
courts,  be  no  protection  to  contractors.  P.  55,  311,  Sept.  7, 1892;  C. 
11459,  Nov.  4,  1901;  16 104,  Mar.  29,  1904;  16282,  May  7,  1904; 
18811,  Nov.  4,  1905. 

IV.  Inquiry  having  been  niade  of  the  War  Department  by  certam 
contractors  whether  the  men  employed  on  dredges,  scows,  and  tugs  on 
Lake  Erie,  under  contracts  with  the'United  States,  were  to  be  regarded 
as  excepted  from  the  appUcation  of  the  act  of  1892,^  lield  that  it  was 
not  the  duty  or  province  of  the  War  Department  to  determine  such 
questions,  but  that  the  same  were  for  the  courts  to  decide,  on  trials, 
under  the  second  section  of  the  act,  of  persons  charged  with  violations 
of  its  provisions.  Neither  the  War  or  other  Department  of  the  Gov- 
ernment can  lay  down  rules,  or  make  constructions  of  the  law,  for 
contractors,  which  would  effectually  protect  them  were  they  brought 
to  trial.''    P.  57,  36,  Bee.  13,  1892;  C.  18811,  Nov.  4,  1905. 

Held,  based  on  the  decision  in  U.  S.  v.  Jefferson  (60  Fed.  Rep.  736), 
that,  while  the  ordinary  status  of  certain  men  was  that  of  seamen  and 
as  such  not  within  the  apphcation  of  the  act  of  August  1,  1892,  while 
actually  engaged  in  ^' labor  upon  public  work  in  removing  snags  and 
obstructions"  the  men  came  within  the  application  of  the  law.  C. 
20169,  Mar.  16  and  21,  1907.  But  later,  in  view  of  the  case  of  Ellis 
et  al.  V.  U.  S.  (206  U.  S.  246),  in  which  it  was  decided  that  persons 
employed  in  the  work  of  dredging  and  rock  excavation  in  the  improve- 
ments of  rivers  and  harbors  of  the  United  States  are  not  employed 
''upon  any  of  the  public  works  of  tho  United  States"  within  the  mean- 
ing of  the  act  of  August  1,  1892,  and  that  the  persons  so  employed, 
whether  on  tugs,  scows,  or  dredges,  are  not  ''laborers  and  mechanics" 
within  the  meaning  of  that  act,  but  are  to  be  regarded  as  seamen 
employed  on  vessels  within  the  statutes  and  decisions  relating  to  such 

^  See,  however,  the  requirements  of  par.  742,  A.  R.  (1910).  U.  S.  v.  Garbish,  222 
U.  S.,  257. 

2  But  see  26  Op.  Atty.  Gen.,  64,  as  to  duty  of  engineers  to  report  violations  of  the  law. 

3  See  Ellis  v.  U.  S.  (206  U.  S.,  246). 

^  In  a  communication  to  the  Secretary  of  War  of  Aug.  29.  1892,  the  Attorney 
General,  whose  opinion  had  been  asked  with  regard  to  the  application  in  general  of 
the  act  to  the  "construction  of  levees  on  the  Mississippi  River,"  declines  to  give  an 
official  opinion  with  a  view  to  the  guidance  of  persons  who  may  propose  to  enter 
into  contract  relations  with  the  United  States,  in  the  absence  of  a  special  case 
requiring  the  action  of  the  Secretary.    See  20  Op.,  459. 


592  EIGHT-HOUR  LAW   V. 

employment;  lield,  that  since  the  eight-hour  law  is  clearly  not  appli- 
cable to  dredging  operations  there  is  no  requirement  that  in  contracts 
for  work  covered  by  the  above  decisions,  such  as  dredging,  snagging, 
and  rock  excavation,  a  reference  to  the  eight-hour  law  should  appear. 
G.  20169,  May  22,  1907. 

While  persons  employed  on  dredges  and  scows  in  dredging  a  channel 
in  a  harbor  are  not,  within  the  meaning  of  the  act  of  August  1,  1892, 
laborers  or  mechanics  employed  on  any  of  the  public  works  of  the 
United  States  (because  they  are  seamen)  Jield,  that  laborers  employed 
simply  to  load  vessels  or  barges  are  not  seamen  within  the  meaning  of 
the  foregoing  premises.     C.  20169,  Sept.  23,  1909,  June  H,  1910. 

Where  stone  or  other  material  is  delivered  on  a  breakwater  from  a 
floating  plant,  lield  that  the  work  of  placing,  bedding,  or  arranging  the 
stone  or  material  on  the  breakwater  does  not  come  under  the  provision 
of  the  act  of  August  1,  1892,  if  the  persons  employed  on  the  floating 
plant  do  the  work;  however,  if  one  person  is  continuously  employed 
m  such  work,  it  would  seem  that  he  should  be  regarded  as  for  the  time 
engaged  as  a  laborer,  and  could  not  be  required  to  work  in  excess  of 
eight  hours  m  one  day.     C.  20169,  Apr.  26,  1910. 

V.  The  term  "extraordinary  emergency,"  employed  in  the  first 
section  of  the  act  of  August  1, 1892  (27  Stat.,  340),  can  not  properly 
be  construed  in  advance  as  referring  or  applicable  to  any  particular 
class  of  cases.  The  question  whether  there  is  or  was  such  emer- 
gency should  be  left  to  be  determined  by  the  facts  of  each  special 
instance  as  it  arises.  A  case  in  which  it  appeared  that  a  compliance 
with  the  statute  was  not  possible,  might  well  be  held  to  be  one  of 
"extraordinary  emergency."  P.  55,  311,  Sept.  7,  1892;  60,  268, 
July  1,  1893;  C.  1365,  May  18,  1895;  14790,  June  12,  1903. 

Merely  economical  considerations  will  not  bring  a  case  within  the 
exception  as  an  "extraordinary  emergency;"  there  must  be  some 
sudden  unexpected  happening.^     C.  20169,  July  25,  1908. 

Under  the  act  of  August  1,  1892  (27  Stat.,  340),  circumstances  of 
mere  emergency  are  not  sufficient  to  warrant  an  extension  of  the 
hours  of  labor  but  the  emergency  must  be  extraordinary.  C.  20169, 
Oct.  8,  1906. 

Held,  that  ordinary  work  of  repair  on  an  Army  transport,  whether 

Eerformed  by  a  contractor,  or  by  laborers  and  mechanics  employed 
y  the  Quartermaster's  Department,  does  not  constitute  an  extra- 
ordinary emergency  within  the  meaning  of  the  act  of  August  1,  1892. 
G.  20169,  Oct.  8,  1906. 

Under  the  order  of  the  President  of  September  11,  1907,  directing 
that  all  persons  employed  as  watchmen,  lock  tenders,  lock  em- 
ployees, etc.  (see  par.  742,  A.  R.,  1910),  shall  "be  considered  as 
covered  by  the  eight-hour  law,  and  that  exceptions  only  be  made  by 
the  Secretary  himself  on  the  case  being  reported  to  him,"  Jield  that 
exceptions  were  only  intended  to  be  made  in  cases  of  emergency  or 
where,  owing  to  the  nature  of  the  duties  of  the  particular  employee, 
he  should  not  be  regarded  as  within  the  President's  order  or  as  a 
laborer  or  U  mechanic  within  the  meaning  of  the  law.  G.  20169, 
May  23,  1908. 

VI.  No  provision  is  contained  in  the  act  of  August  1,  1892  (27 
Stat.,  340),  for  the  suspension  of  its  operation,  and  the  Secretary  of 


1  U.  S.  V.  Garbish,  222  U.  S.,  257. 


EIGHT-HOUR  LAW   VII.  593 

War  has  no  power  to  suspend  it  as  to  certain  work  or  places  of  work 
on  the  theor^r  that  an  ^'emergency"  exists  as  to  the  same.  Nor  can 
he  lay  down  in  advance  any  general  rule  as  to  what  would  be  such 
an  emergency,  as  would  relieve  an  officer  or  contractor  from  liability 
or  give  iiim  an  immunity  from  prosecution.  The  question  of  the 
existence  of  an  emergency  is  to  be  determined,  in  the  first  instance, 
by  the  person  carrying  on,  or  in  charge  of,  the  work;  and,  in  the 
second,  by  the  court,  if  the  case  comes  before  one.^  It  may  be  said 
generally  that  when  the  emergency  can  be  foreseen  it  is  not  extraor- 
dinary; that  increased  expense  an ci  inconvenience  can  not  constitute 
an  emergency  when  they  can  be  foreseen  and  guarded  against.     P. 

55,  153,  324,  386,  469,  Aug.  22,  Sept.  8  and  23,  and  Oct.  5,  1892; 

56,  330,  Nov.  14,  1892;  C.  1365,  May  18,  1895;  9137,  Oct.  19,  1900; 
14005,  Jan.  19,  1903;  14790,  June  12,  1903;  20169,  Oct.  8,  1906. 

If  '^an  extraordinary  emergency"  exists  it  is  one  of  time  and  is 
created  by  the  recauirement  of  tne  existing  act  of  appropriation 
wliich  requires  the  nitration  plant  to  be  completed  on  a  given  date; 
and  the  determination  of  its  existence  is  a  question  of  fact,  to  be 
determined  by  the  officer  in  charge  of  the  work,  whose  conclusion 
in  that  regard  is  subject  to  review  by  the  courts  should  an  action 
be  brought  for  the  enforcement  of  the  penalty  which  is  imposed  for 
its  violation  in  the  act  of  August  1,  1892  (27  Stat.  340).  The  applica- 
tion of  the  remedy  which  is  provided  in  the  statute  above  cited  is,  by 
its  express  terms,  vested  in  the  courts  and  not  in  the  executive 
departments  of  the  Government.  C.  I6IO4,  Mar.  29,  1904;  20169, 
Oct.  22,  1909. 

VII.  At  the  Leavenworth  miUtary  prison  there  are  employed  cer- 
tain civilians  as  ^'foremen  of  mechanics,"  who  are  paid,  under  the 
sundry  civil  appropriation  act,  a  stated  salary  of  $1,200  per  annum, 
and  whose  duty  it  is  to  direct  the  labor  of  the  prisoners.  The  regula- 
tions framed  for  the  government  of  the  military  prison,  pursuant  to 
section  1345,  R.  S.,  require  more  than  eight  hours'  labor  per  diem  of 
the  prisoners,  and  conseq[uently  more  from  these  foremen.  Held  that 
the  latter  were  not  entitled  to  the  benefits  of  the  act  of  August  1, 
1892,  chap.  352,  as  "laborers  or  mechanics,"  the  statute  not  being 
apphcable  to  them.^    P.  65,  220,  June  7,  1894;  0.  20169,  Oct.  4, 1907. 

On  the  question  of  whether  foremen  and  timekeepers  on  duty  with 
gangs  of  workmen  employed  by  contractors  on  public  works,  as  well 
as  night  watchmen  employed  by  contractors  to  protect  their  property 
come  within  the  application  of  the  act  of  August  1, 1892  (27  Stat.  340), 
held  that  the  persons  referred  to  can  not  properly  be  held  to  come 
within  the  terms  "laborers  and  mechanics"  as  used  in  the  statute 
in  question.  ^  O.  20169,  Dec.  13,  1907.  Held,  that  a  man  whose 
employment  is  of  a  high  grade,  whose  work  is  not  manual  in  any 
sense,  but  whose  employment  is  associated  with  mental  labor  and 
skill  only,  is  not  a  laborer;  nor  can  he  be  deemed  a  mechanic.  If  we 
apply  the  foregoing  opinion  to  an  inspector  in  the  Quartermaster's 
Department,  stationed  in  a  factory,  such  an  inspector  is  not  a 
laborer  or  mechanic  within  the  application  of  the  act  of  August  1, 
1892,  since  he  has  no  manual  duty  to  perform,  but  is  a  high-grade 
employee,  as  is  shown  by  his  salary  and  also  the  fact  that  he  has 
been  required  to  pass  an  educational  examination,  and  has  no  work 

^  U.  S.  i;.  Garbish,  222  U.  S.,  257.  2  21  Op.  Atty.  Gen.  32;  26  id.  822. 

31106°— 12 38 


594  EIGHT-HOUR  LAW  VIH. 

to  perform  not  associated  with  mental  labor  and  skill.  C.  20169, 
Aug.  17,  1906. 

VIII.  The  act  of  August  1,  1892  (27  Stat.  340),  provides  that  it 
shall  be  unlawful  for  any  officer  of  the  United  States  Government  or 
any  contractor  or  subcontractor  whose  duty  it  shall  be  to  employ, 
direct  or  control  the  services  of  laborers  or  mechanics  (on  public 
works)  to  require  or  permit  any  such  laborer  or  mechanic  to  work 
more  than  eight  hours  in  an}^  one  calendar  day  except  in  case  of 
extraordinary  emergency,  fiut  where  a  subcontractor  purchased 
window  blinds,  sashes,  etc.,  for  a  public  building  at  a  factory  in 
which  the  employees  were  working  more  than  eight  hours  a  day,  but 
over  whom  he  had  no  control,  it  was  held  that  the  statute  did  not 
apply.i  C.  7323,  Nov.  21,  1899;  18831,  Nov.  9,  1906;  20189,  May 
18,  1911. 

On  the  question  of  whether  the  act  of  August  1,  1892  (27  Stat.  340), 
applied  to  contractors  furnishing  the  Quartermaster's  Department  with 
supplies,  Jield  that  it  did  not.^  Whether  or  not  laborers  or  raechanics 
are  employed  on  ^'  public  works  "  depends  largely  on  the  question  of  the 
title  to  the  articles  or  materials  upon  which  they  are  at  work.  If  the 
latter  belong  to  the  contractor  the  laborer  or  mechanic  can  not  be 
regarded  as  employed  upon  public  works.  Nor  is  this  view  of  the 
question  in  any  way  affected  by  the  fact  that  Government  inspectors 
may  be  employed  to  inspect  and  report  upon  the  various  stages  in  the 
manufacture  of  any  supplies  for  the  Government.  G.  20169,  July  25, 
1906. 

Where  lock  gates  were  delivered  in  sections  by  a  contractor,  and 
erected  in  place,  lield  that  the  act  of  August  1,  1892  (27  Stat.  340), 
applied  to  the  work  of  assembling  the  sections  at  the  lock  site  and  to 
the  erection  of  the  gates  in  the  lock  by  the  contractor.  C.  20169, 
Apr.  26,  1910.  Hdd,  per  contra,  that  the  work  involved  in  the 
construction  and  assembling  of  a  lock  gate  in  the  shops  of  a  con- 
tractor, the  gate  to  be  later  erected  in  the  lock  bv  the  United  States, 
did  not  come  under  the  act  of  August  1,  1892'^  (27  Stat.  340).  C. 
20169,  June  21,  1909. 

The  installation  of  electric  lamps,  conduits,  etc.,  by  a  private  com- 
pany in  the  public  parks  of  the  District  of  Columbia,  and  on  the  high- 
way bridge,  the  lamps,  etc.,  to  remain  the  property  of  the  company, 
held,  not  to  be  a  ''public  work"  of  the  United  States  or  of  the  District 
of  Columbia.     C.  20169,  July  26,  1909. 

Where  materials  or  supplies,  such  as  lumber  or  cement,  are  delivered 
by  a  contractor  on  land  or  in  a  warehouse  owned  or  leased  by  the 
United  States,  held,  that  the  the  work  involved  in  unloading,  assorting, 
and  piling  such  materials  or  supplies  should  not  be  regarded  as  being 
upon  a  *'pubHc  work"  within  the  meaning  of  the  act  of  August  1,  1892 
(27  Stat.  340),  if  they  shall  have  been  purchased  by  the  United 
States  or  by  a  contractor  on  a  public  work  from  an  independent  con- 
tractor as  supplies  and  materials  to  be  put  into  the  actual  work  of 
construction,  such  materials  being  delivered  by  the  independent  con- 
tractor, who  furnishes  the  same  under  his  contract  and  is  required  to 
deliver  the  same.      C.  20169,  Apr.  26,  1910. 

Where  a  contractor  quarried  stone  on  the  shore  in  the  vicinity  of 
the  site  of  a  proposed  dam  which  he  was  under  contract  to  construct 

1  See  20  Op.  Atty.  Gen.  454;  26  id.  30;  XVIII  Comp.  Dec,  93. 


EIGHT-HOUE  LAW   IX.  595 

for  the  Government,  lield,  that  neither  the  act  of  August  1,  1892,  nor 
the  Army  Regulations  were  apphcablo  to  the  preliminary  work  of 
quarrying  stone  along  the  shore  in  the  immediate  vicinity  of  the  dam. 
a  20169,  July  27,  1909. 

Where  a  contractor  built,  on  private  ground,  a  crib,  to  be  later 
floated  into  position  and  sunk  as  the  base  of  a  pierhead  he  had  con- 
tracted to  build  for  the  Government,  lield,  that  the  crib  could  not  be 
construed  as  coming  under  the  decisions  and  opinions  respecting  the 
procurement  of  manufactured  articles  or  materials  for  use  in  public 
work,  and  that  the  labor  on  the  crib  must  be  considered  to  be  on  a 
''public  work"  within  the  meaning  of  the  act  of  August  1,  1892. 
C.  20169,  June  11,  1909. 

IX.  An  executive  officer  can  not,  in  view  of  section  3738,  R.  S., 
legally  direct  that  laborers,  workmen,  and  mechanics  employed  by  and 
on  belialf  of  the  Government  shall  be  given  time  without  loss  of  pay 
to  vote  on  election  day,  if  such  indulgence  would  reduce  the  number 
of  working  hours  below  eight.  C.  2692,  Oct.  20,  1896.  Held,  that 
the  law  (act  of  Aug.  1,  1892)  is  not  violated,  as  to  the  hours  of  work 
of  employees,  so  long  as  the  aggregate  of  their  several  periods  of  duty 
does  not  exceed  eight  hours  in  a  calendar  day.     C.  20169,  Jan.  9, 1908.^ 

Where  a  laborer  or  mechanic  has  worked  for  eight  hours,  in  any  one 
calendar  day,  for  the  United  States,  held,  that  it  would  be  a  violation 
of  the  law  for  a  contractor,  having  a  knowledge  of  that  fact,  to  require 
or  permit  the  laborer  or  mechanic  to  work  for  additional  hours,  in  the 
same  calendar  day,  upon  any  public  work  of  the  United  States.  C. 
20169,  Bee.  26,  1907. 

The  law  and  regulations  require  that  the  laborers  and  mechanics 
employed  on  a  dam  being  built  by  the  Government  shall  not  be  re- 
quired to  work  in  excess  of  eight  hours  in  any  one  calendar  day;  and 
it  would  be  an  evasion  of  the  law  to  employ  them  for  less  than  eight 
hours  on  the  work  of  dam  construction,  and  then  put  them  on  quarry- 
ing work  in  such  manner  that  the  aggregate  of  the  two  work  periods 
would  exceed  eight  hours.  C.  20169,  July  27,  1909.  Held,  that  to 
require  a  man  to  work  in  a  quartermaster's  stable  for  seven  hours  and 
further  require  that  he  shall  sleep  in  the  stable  during  the  night,  until 
.relieved  in  the  morning,  in  order  to  be  available  in  case  of  fire  or  acci- 
dent, would  not  be  a  violation  of  the  act  of  August  1,  1892.  C.  20169, 
Nov.  11,  1907. 

X.  Held,  that  a  ''hostler"  at  an  arsenal  is  neither  a  "laborer"  nor 
a  "mechanic"  within  the  meaning  of  the  eight-hour  act  of  1892. 
C.  3673,  Nov.  26,  1897;  20169,  May  2,  1911.  SimHarly  lieU  with 
respect  to  lock  employees  on  river  locks.^  G.  4^14,  Aug.  20,  and  July 
16,1901.^ 

Janitor  for  Shiloh  National  Park  Commission,  although  his  duties 
would  include  field  work,  held,  not  to  be  a  laborer  within  the  mean- 
ing of  the  eight-hour  law.*     C.  20169,  May  2,  1911. 

Stevedores  and  longshoremen  come  within  the  application  of  the 
act  of  August  1,  1892.     C.  20169,  Jan.  15,  1907. 

^  26  Op.  Atty.  Gen.,  64;  id.,  605. 

2  See  20  Op.  Atty.  Gen.,  459;  26  id.,  64;  id.,  623;  and  A.  R.,  742  (1910). 

3  On  Sept.  11,  1907,  the  President  ordered  that  all  persons  employed  as  watchmen, 
lock  tenders,  and  lock  employees  be  considered  as  covered  by  the  eight-hour  law. 
See  also  in  this  connection  par.  742,  A.  R.  (1910). 

*  26  Op.  Atty.  Gen.,  623.  , 


596  EIGHT-HOUR   LAW — ELIGIBILITY. 

Held,  that  all  laborers  employed  by  the  officers  of  the  Soldiers'  Home 
are  strictly  "employed  by  the  Government  of  the  United  States"  and 
that  the  act  of  August  1,  1892,  is  applicable  to  them.  C.  20169,  Dec. 
9,  1907} 

Held,  that  the  act  of  August  1,  1892,  is  applicable  to  laborers  and 
mechanics  employed  on  the  public  work  of  the  United  States  in  the 
Philippine  Islands.     C.  19702,  May  12,  1906. 

The  act  of  August  1,  1892,  held  not  to  apply  to  laborers  and  mechan- 
ics employed  by  the  Board  of  Road  Commissioners  for  Alaska.  C. 
20169,  May  27,  1907? 

XI.  It  is  not  the  duty  of  the  Secretary  of  War  to  institute  proceed- 
ings for  violations  of  the  act  of  1892.  Parties  who  think  the  law  is 
bemg  violated  by  contractors  should  submit  their  complaints  to  the 
proper  United  States  attorney.  C.  7323,  Nov.  21,  1899;  I6IO4,  Mar. 
29,  1904;  16282,  May  7, 1904.  Held,  that  it  is  beyond^  the  authority 
of  the  Secretary  of  War  to  impose  a  condition  upon  bidders  or  con- 
tractors that  articles  which  thev  undertake  to  furnish  for  the  use  of 
the  military  establishment  shall  be  manufactured  in  shops  or  places 
in  which  eight  hours  of  labor,  and  no  more,  are  required  of  the  me- 
chanics and  operatives  who  are  engaged  in  their  production  or  manu- 
facture. C.  20169,  Mar.  13,  1908.  Held,  that  the  act  of  August  1, 
1892  (27  Stat.,  344),  is  penal  in  its  nature  and  gives  a  claimant  no 
cause  of  action  to  recover  for  work  in  excess  of  eight  hours  a  day.  O. 
20169,  Feb.  11,  1907,  Mar.  16,  1907,  and  Oct.  29,  1908. 

ELIGIBILITY. 

Civilian  employees  for  campaign  badge See  Insignia  of  merit  III  B  3. 

Discharged  soldier  for  certificate  of  merit.  . .  .See  Insignia  of  merit  II  G. 

Divorced  man  for  appointment  as  cadet See  Army  I  D  1  c  (1). 

For  appointment  as  officer See  Desertion  XX  F. 

For  appointment  as  second  lieutenant See  Office  III  A  1  b  (5);  (5)  (a). 

For  appointment  or  enlistment  after  dis-  See  Office  IV  E  1  c;  2  f. 

missal. 
For  appointment  to  Medical  Reserve  Corps.. ^ee  Army  I  G  3  d  (4)  (a). 

For  campaign  badge See  Insignia  of  merit  III  B  2. 

For  commission  in  Volunteers See  Militia  XVII  A. 

For  enlistment  of  deserter See  Desertion  VI  D. 

For  enlistment,  not  restored  by  pardon See  Pardon  XIV. 

For  enlistment See  Enlistment  I  A  9  c  to  d;  10;  B  3  to  D. 

See  Pardon  XIV. 

For  General  Staff. See  Office  III  Die. 

For  gunner's  badge See  Insignia  of  merit  III  C. 

For  medal  of  honor See  Insignia  of  merit  I  A  2  d;  d  (1). 

For  promotion  of  officer  under  suspension  See  Pardon  XV  C  2  a. 

from  rank.  Office  III  B  1  a  (2), 

For  reappointment  as  cadet See  Army  I  D  1  d  (3);  2  b. 

For  reenlistment See  Enlistment  I  D  to  II. 

Officer  ineligible  for  certificate  of  merit See  Insignia  of  merit  II  I. 

Philippine  Scout  officer,  for  duty  with  militia  See  Militia  VI  A  2  d. 

^  Act  of  Aug.  1,  1892,  does  not  apply  to  laborers  and  mechanics  in  the  employ- 
ment of  the  Panama  Railroad  &  Steamship  Line.    25  Op.  Atty.  Gen.,  465. 

2  See  Moses  v.  U.  S.,  116  Fed.  Rep.,  526. 
_  The  act  of  Aug.  1,  1892,  shall  not  apply  to  alien  laborers  employed  in  the  construc- 
tion of  the  Isthmian  Canal  within  the  Canal  Zone  (Panama),  act  of  Feb.  27,  1906;  nor 
to  unskilled  alien  laborers  and  to  the  foreman  and  superintendents  of  such  laborers 
employed  in  the  construction  of  the  Isthmian  Canal  within  the  Canal  Zone,  act  of 
June  30,  1906  (24  Stat.,  34  and  669). 


EMANCIPATED   MINOR — EMPLOYMENT.  597 

Retired  officers  as  members  of  general  court-  See  Retirement  I  K  2  f . 

martial. 

Retired  officer  for  advancement  in  grade See  Retirement  I  C  2  a;  2  b. 

Retired  officer  for  membership  on  courts  of  See  Retirement  I  K  2. 

inquiry. 

Retired  officer  to  hold  civil  office See  Retirement  I  G  3  to  4. 

Retired  soldier  for  certificate  of  merit See  Insignia  of  merit  II  E. 

Retired  soldier  to  hold  civil  office See  Retirement  II  D  to  E. 

To  command See  Command  I  A. 

To  command  by  Adjutant  General See  Command  I  A  1 . 

To  command  by  General  Staff  officer See  Command  I  A  1  a. 

To  commxind  by  mmine  officer See  Command  I  B. 

To  command  by  quartermaster See  Command  V  B  4. 

To  hold  office See  Pardon  ;x:VI  A  1. 

Office  I  A. 

EMANCIPATED  MINOR. 

See  Discharge  XII  0  1;  2. 
Residence  II  B. 
Enlistment  of. See  Enlistment  I  B  1  b  (5). 

EMBEZZLEMENT. 

See  Articles  of  War  LX  F;  LXII  B;  C  2 
to  4. 

Desertion  V  B  18  a. 

By  commissary  sergeant See  Enlistment  I  D  3  c  (18)  (i) . 

By  officer See  Enlistment  I  D  3  d  (3). 

By  officer  of  soldier's  pay See  Articles  op  War  LXI  B  9  c. 

By  recruit See  Desertion  XXII  A. 

Charging  of. See  Discipline  II  D  16  b. 

Defense  of. See  Discipline  XII  A  12  b. 

Evidence  of. See  Articles  of  War  LX  A  4. 

Discipline  XI  A  18. 
Failure  to  turn  public  money  into  Treasury. .  See  Public  money  I  A. 

Pardon  of. See  Pardon  VII  A. 

Post  exchange  money See  Government  agencies  II  B  5. 

EMERGENCY. 

See  Eight-hour  law  V. 

EMPLOYER'S  LIABILITY. 

For  injuries See  Civilian  employees  XII  to  XIII. 

EMPLOYMENT. 
I 

Abandonment  of. See  Civilian  employees  XIV  A. 

Alien  and  convict  labor See  Contracts  XXIII  to  XXIV. 

Army  musicians See  Army  bands  I  A  to  D  3. 

Army  to  aid  civil  authority See  Army  II  to  III. 

Authorized  civil,  of  officers See  Office  IV  A  2  e  to  C. 

Of  alien See  Alien  VII. 

Position  of  master  machinist See  Civilian  employees  V  C. 

Retired  soldier See  Retirement  II  D  1;  E  to  F. 

Soldier  as  telegraph  operator See  Pay  and  allowances  I  C  6  a. 

Soldier  on  furlough See  Absence  I  C4  d  (1);  (2). 

Army  I  C  1. 


598  ENEMY — enlistment:  synopsis. 

ENEMY. 

See  Pardon  X. 

As  prisoners  of  war See  War  I  C  11  c  to  d. 

Capture  of  prisoners  by See  War  I  C  11  d  to  e. 

Courts  of:  during  war See  War  I  C  7  a. 

Evidence  by See  Discipline  XI  A  6  a. 

Inhabitants  of  insurrectionary  States See  Articles  of  War  XLV  B. 

In  Philippines See  Claims  VII  A. 

Laws  of. SeeWARlC8a(l). 

ENGINEER  BRIGADE,  UNITED  STATES  VOLUNTEERS. 

See  Volunteer  Army  III  A  to  B. 

ENGINEER  DEPARTMENT. 

Duties  of,  in  respect  to  river  and  harbor  work 

and  seacoast  defense See  Army  I  G  3  c  (1). 

Navigable  waters  X  B  to  C. 

ENLISTED  MEN. 

See  Army  I  E  1  to  5. 

Appointments  as  officers See  Office  III  A  1  b  to  c ;  6  b. 

Can  not  be  officers'  servants See  Articles  of  War  XXI  C  2  a. 

Army  I  C  1. 

Clerical  duty See  Civilian  employees  VIII  A. 

Clothing  allowance See  Pay  and  allowances  II  A  3  a  to  b. 

Court  reporter See  Discipline  I V  B  2  a. 

Desertion  of. See  Desertion. 

Discharge  of See  Discharge. 

Duty  with  militia .^ See  Militia  VI  A  2  c. 

Heat  and  light  to .^ See  Pay  and  allowances  II  A  1  d  to  e. 

Line  of  duty  status See  Line  of  duty  II ;  III . 

Muster  in  during  Civil  War See  Volunteer  Army  II  B  to  C. 

Pay  can  not  be  attached See  Army  I  C  2. 

Pay  of. See  Pay  and  allowances  I  C  to  D. 

Purchase  of  supplies  from See  Contracts  XV  to  XVI. 

Rank  of. See  Rank  I  D  to  E. 

Residence See  Residence. 

Retirement  of. See  Retirement  II  to  III . 

Taxation  of See  Tax  I  to  II. 

Volunteers See  Volunteer  Army  III  B  to  C. 

ENLISTMENT. 
I.  VOLUNTARY. 

A.  Enlistment  is  a  Contract Page  602 

1.  All  enlistments  are  voluntary Page  603 

2.  Oath  not  essential  to  enlistment. 

a.  Statement  of  age.  * 

3.  Constructive  contract  of  enlistment. 

a.  Civilian  acquiescing  in  illegal  sentence  by  general  court-martial. 

b.  Military  convict  pardoned  and  returned  to  service. 

c.  Officer  obeys  illegal  order  reducing  him  to  ranks. 

4.  Enlistment  on  Sunday  legal Page  604 

5.  Pay  may  be  reduced  pending  enlistment. 

6.  Enlistment  for  service  at  particular  place  not  authorized. 

7.  Volunteers  enlisted  directly  into  the  United  States  service. 

8.  Date  of  enlistment. 

a.  Fixed  in  oath. 

b.  Date  antedated  to  correct  delay  by  the  Government. 

c.  Date  not  antedated;  no  delay  by  Government Page  605 


enlistment:  synopsis.  599 

VOLUNTARY— Continued. 

A.  Enustment  is  a  Contract — Continued. 

9.  Fraudulent  contract  of  enlistment. 

a.  Defined. 

b.  Elements  of. 

c.  Enlistment  of  ineligibles  without  misrepresentation. 

(1)  Minor  without  consent  of  parents. 

(2)  Discharged  felon Page  606 

d.  Deserter  from  Navy  fraudulently  enlists. 

e.  Deserter  from  Marine  Corps  fraudulently  enlists. 

(1)  Member  of  National  Guard  fraudulently  enlists. 
1.  Fraudulent  enlistment  not  void. 

(1)  Enlistment  of  soldier  discharged  without  honor. 

(2)  Enlistment  of  soldier  dishonorably  discharged  for  deser- 

tion. 

(3)  Enlistment  of  escaped  military  convict Page  607 

(4)  Enlistment  of  discharged  military  convict. 

(5)  Enlistment  of  men  ineligible  under  sections  1116  and 

1118,  Revised  Statutes. 

(6)  Enlistment  of  minor  without  consent  of  parents. 

(7)  Nonstatutory  fraudulent  enlistment. 

(a)  Married  man Page  608 

(6)  Concealment  of  disqualification  not  statutory. 

(8)  Enlistment  in  violation  of  fiftieth  article  of  war. 
g.  Disposition  of  fraudulently  enlisted  soldiers. 

(1)  Dishonorably  discharged  soldiers  who  have  enlisted. 

(2)  Minors  who  have  enlisted Page  609 

(3)  Deserters  who  have  enlisted. 

(4)  Soldiers  discharged  on  certificate  of  disability  who  have 

enlisted, 
h.  Policy  in  handling  fraudulent  enlistment  of  deserter. 
1..  Discharge  without  honor  should  not  be  given  after  a  court  has 

declined  to  dishonorably  discharge  a  soldier. 
k.  Law  of  contract  applies  to  fraudulent  enlistment. 
1.  Service  under  fraudulent  enlistment,  legal,  and  if  honest  and 
faithful  ended  by  an  honorable  discharge. 

m.  Fraudulent  enlistment  counts  for  retirement Page  610 

n.  Service  under  fraudulent  enlistment  legal  for  purpose  of  earn- 
ing certificate  of  merit. 
o.  Service  under  fraudulent   enlistment   counts   for   continuous 
service  unless  voided. 

10.  Secretary  may  fix  status  of  certain  classes,  i.  e.,  married  men  as 

ineligible  for  enlistment. 

11.  Enlistment  of  married  men  may  be  authorized. 

12.  Enlistment  of  colored  men  for  Coast  Artillery  Corps  not  authorized. 

B.  Statutory  Requirements. 

1.  Age  limit  is  18  to  35. 

a.  Maximum  age  limit. 

b.  Minimum  age  limit. 

(1)  Alien,  minor,  consent  of  parents  who  have  taken  out 

papers. 

(2)  Alien,  minor,  without  consent  of  parents Page  611 

(3)  Indian,  minor,  consent  of  parents,  when  minor  has  taken 

out  papers. 

(4)  Father  is  natural  guardian. 

(5)  Emancipated  mine 


600  enlistment:  synopsis. 

I.  VOLUNTARY— Continued. 

B.  Statutory  Requirements — Continued, 

2.  Period. 

a.  Three  years;   act  of  August  1,  1894  (28  Stat.,  216). 

b.  Time  lost  to  be  made  good. 

(1)  Time  not  made  good  due  to  fault  of  Government. 

c.  In  an  emergency  a  soldier  may,  with  his  consent,  be  continued 

in  service  for  more  than  three  years, 

d.  Enlistment  for  three  years  or  during  the  war Page  612 

e.  Enlistment  for  two  years  unless  sooner  terminated . 

f .  Held  because  of  exigency  of  service. 

g.  Philippine  Scouts  can  not  be  held  in  United  States  beyond 

term  of  enlistment  to  participate  in  an  exposition. 
h.  Can't  be  held  in  order  to  pay  forfeiture. 
i.  Held  when  too  sick  for  discharge Page  613 

3,  Statutory  ineligible  classes, 

a.  Pardon  does  not  restore  a  felon's  eligibility, 

b.  An  officer  in  desertion  ineligible. 

c.  Incarceration  in  a  workhouse  does  not  attach  ineligibility. 

C.  Enlistment  in  Time  or  Peace. 

1.  Only  citizens  shall  be  enlisted, 

a.  Foreigner  can  not  enlist. 

b.  Native-born  minors  are  citizens. 

c.  Alien  may  enlist  in  time  of  war Page  614 

(1)  Rule  for  determining  citizenship  of  aliens  who  reach  21 
in  the  United  States. 

d.  Alien,  minor,  may  enlist  in  time  of  war  with  consent  of  parents. 

e.  Porto  Ricans. 

(1)  Before  eligibility  was  conferred  by  act  of  Congress  it 
could  be  acquired  on  making  the  legal  declaration  of 
intention  to  become  a  citizen. 

f .  Enlistment  of  Filipinos  in  time  of  peace  not  authorized. 

g.  Enlistment  of  alien  in  Cuba  in  1902. 

D.  Reenlistment. 

1.  No  maximum  age  limit, 

2.  Previous  service  essential. 

a.  Previous  naval  service  does  not  count Page  615 

b.  Previous  marine  service  does  not  count  for  Army  service. 

c.  Previous  commissioned  service  does  not  count  for  enlisted  serv- 
ice. 

3.  Honest  and  faithful  service  an  essential  for  reenlistment. 

a.  Service  honest  and  faithful  unless  contrary  is  established. 

(1)  Remark  ''service  not  honest  and  faithful"  will  not  be 
entered  except  after  action  of  a  board. 

b.  Desertion  does  not  necessarily  render  service  "not  honest  and 

faithful "  for  purpose  of  reenlistment. 

c.  Act  of  August  1,  1894  (28  Stat.,  216),  provides  that  no  soldier 

shall  be  reenlisted  whose  service  in  last  preceding  term  was 
not  honest  and  faithful. 

(1)  Service  is  presumed  to  be  honest  and  faithful  until  sol- 

dier's conduct  renders  it  otherwise Page  616 

(2)  Last  term  may  have  been  in  volunteers. 

(3)  Felon  pardoned,  returned  to  duty,  service  held  honest 

and  faithful. 


enlistment:  synopsis.  601 

I.  VOLUNTARY— Continued. 

D.  Reenlistment — Continued. 

3.  Honest  and  faithful  service  an  essential  for  reenlistment — Contd. 
c.  Act  of  August  1,  1894,  etc. — Continued. 

(4)  General  court-martial  convicts  soldier  of  felony  but  does 

not  discharge  him;  may  serve  honestly  and  faithfully 
as  each  case  hinges  on  its  own  merits. 

(5)  Remission  of  unexecuted  sentence  of  a  felon  does  not 

render  previous  service  honest  and  faithful.  Page  617 

(6)  Pardon  and  restoration  to  citizenship  of  a  dishonorably 

discharged  soldier  does  not  render  service  honest  and 
faithful. 

(7)  A  pardon  does  not  change  previous  character. 

(8)  Pardon  of  a  discharged  military  convict  not  a  deserter 

does  not  render  service  honest  and  faithful. 

(9)  Remission  of  unexecuted  sentence  of  military  convict 

deserter  does  not  render  service  honest  and  faithful. 

(10)  Remission  of  unexecuted  sentence  of  military  convict 

not  a  deserter  does  not  render  service  honest  and 
faithful Page  618 

(11)  A  dishonorably  discharged  soldier's  service  is  not  honest 

and  faithful. 

(12)  A  discharged  military  convict's  service  not  honest  and 

faithful. 

(13)  After  mitigation  of  deserter's  sentence  of  dishonorable 

discharge  may  receive  an  honorable  discharge  with 
service  honest  and  faithful . 

(14)  Deserter  restored  to  duty  without  trial,  service  may  be 

honest  and  faithful. 

(15)  Convicted  deserter  not  sentenced  to  dishonorable  dis- 

charge, service  may  be  honest  and  faithful.  Page  619 

(16)  Convicted  deserter  not  sentenced  to  dishonorable  dis- 

charge; board  under  mistaken  belief  that  service 
which  includes  desertion  can  not  be  honest  and  faith- 
ful so  found;  service  may  be  honest  and  faithful. 

(17)  Service  of  soldier  discharged   without  honor  may  be 

honest  and  faithful. 

(18)  Secretary  of  War  has  discretion  to  classify  service  as 

honest  and  faithful  for  purpose  of  reenlistment. 
(a)  Honorable    discharge;   service    recorded    as    not 

honest  and  faithful. 
(6)  Deserter  restored  to  duty  without  trial. 

(c)  Soldier  discharged  without  honor. 

(d)  Soldier  discharged  without  honor  after  action  of 

board Page  620 

(e)  Soldier  dishonorably  discharged   for  other  cause 

than  desertion. 
(/)  Soldier  dishonorably  discharged  for  desertion. 
(g)  Remission  of  sentence  of  convicted  felon  other 

than  deserter. 
(h)  Convicted  deserter  not  sentenced  to  dishonorable 

discharge;  Secretary  has  discretion...  Page  621 


602  ENLISTMENT  I  A. 

I.  VOLUNTARY— Continued. 

D.  Reenlistment — Continued. 

3.  Honest  and  faithful  service  an  essential  for  reenlistment — Contd. 

c.  Act  of  August  1,  1894,  etc. — Continued. 

(18)  Secretary  of  War  has  discretion  to  classify  service  as 
honest  and  faithful  for  purpose  of  reenlistment — 
Continued. 

(i)  Soldier  guilty  of  offense  ordinarily  calling  for 
dishonorable  discharge;  Secretary  can  not 
properly  determine  such  case  as  honest  and 
faithful. 
(h)  Discharged  military  convict;  Secretary  has  dis- 
cretion. 

[1.]  Exceptwhen  service  clearly  not  honest  and 
faithful. 
(I)  Military  convict;  Secretary  has  discretion. 

d.  Act  of  January  12,  1899  (30  Stat.,  784),  and  act  of  March  3, 

1899  (30  Stat.,  1073),  for  purpose  of  extra  pay  to  officers  and 
enlisted  men  who  served  honestly  and  faithfuly  outside  of 
the  limits  of  the  United  States. 

(1)  Rule,  service  classified  and  manner  and  character  of 

service  during  enlistment. 

(2)  Soldier  absent  without  leave;  drunk;  died;  service  not 

honest  and  faithful. 

(3)  Officer  confessed  embezzlement;  service  not  honest  and 

faithful Page  622 

(4)  Regulations  in  aid  of  this  statute  for  classifying  service. 

(5)  Officer    tried    by  court-martial,   nevertheless    service 

honest  and  faithful,  rule. 

e.  Joint  resolution  of  June  28, 1906  (34  Stat.,  836),  to  classify  service 

for  purposes  of  pension. 
(1)  An  officer  dismissed;  restored   to  duty,   etc.,  service 

honest  and  faithful Page  623 

n.  INVOLUNTARY  ENLISTMENTS. 

A.  Drafted  Men  are  Not  in  Service  of  United  States  Until  Accepted. 

B.  Exemptions. 

1.  Act  of  February  24,  1864(13  Stat.,  8),  repealed  certain  exemptions  in 

act  of  March  3,  1863  (12  Stat.,  731). 

2.  Exemption  of  religious  sects. 

C.  Discharge  of  Drafted  Men  Who  are  Not  Accepted. 

D.  Substitutes Page  624 

E.  Drafted  Men  Who  Failed  to  Report  at  Rendezvous  were  Deserters. 

F.  Draft  of  Deserters  Legal. 

I  A.  Enlistment  is  a  contract  for  military  service  as  a  soldier, 
entered  into  between  a  civilian  and  the  Government.^     C.  5131,  Oct. 

1  Our  law  not  defining  enlistment,  nor  designating  what  proceeding  or  proceedings 
shall  or  may  constitute  an  enlistment ^  it  may  be  said,  in  general,  that  any  act  or  acts 
which  indicate  an  undertaking,  on  the  part  of  a  person  legally  competent  to  do  so,  to 
render  military  service  to  the  United  States  for  the  term  required  by  existing  law,  and 
an  acceptance  of  such  service  ojj  the  part  of  the  Government  may  ordinarily  be  re- 
garded as  legal  evidence  of  a  contnact  oi  enlistment  between  the  parties  and  as  equiva- 
lent to  a  formal  agreement  where  no  such  agreement  has  been  had.  The  fortj^-seventh 
article  of  war  practically  makes  the  receipt  of  pay  by  a  party  as  a  soldier  evidence  of 


ENLISTMENT  I  A  1.  603 

13,  1898;  1916,  Dec.  28,  1895;  13103,  Aug.  9,  1902;  20237,  Aug.  15, 
1906;  20754,  Nov.  23,  1906;  20540,  July  6,  1909. 

I  A  1.  The  act  of  June  20,  1890  (26  Stat.,  163),  directed  the  muster- 
ing out  of  the  enUsted  men  of  the  artillery  detachment  at  West  Point 
and  their  immediate  reenlistment  as  Army  service  men  in  the  Quarter- 
master's Department.  Held,  that  it  does  not  authorize  their  being 
forced  into  a  new  contract  or  reenlisted  against  their  will,  as  this 
enhstment,  like  all  others,  is  voluntary.     P.  41,  4^0,  July,  1890. 

I  A  2.  While  the  taking  of  the  oath  prescribed  by  the  second  article 
of  war  is  not  essential  to  the  validity  of  an  enhstment,  it  is  almost  inva- 
riably a  part  of  a  regular  formal  enhstment.  R.  30,  313,  May,  1870; 
42,  203,  Mar.,  1879;  C.  4631,  July  22,  1898;  10980,  Aug.  5,  1901f 
11284,  Sept.  25,  1901;  12140,  Mar.  26,  1902. 

I  A  2  a.  A  recruit's  declaration  as  to  his  age  is  no  part  of  the  oath 
prescribed  by  the  second  article  of  war.  There  is  no  law  of  the  United 
States  which  requires  that  such  declaration  shall  be  under  oath.  Held, 
therefore,  that  when  the  declaration  is  false  the  recruit  is  not  indictable 
for  perjury  under  section  5392,  R.  S.     P.  30,  176,  Feb.,  1889. 

I  A  3  a.  A  soldier  was  dishonorably  discharged  by  sentence  of 
court-martial  on  account  of  desertion,  subsequently  arrested  for  the 
same  desertion,  tried  by  court-martial  and  sentenced  to  forfeiture  of 
pay,  etc.,  but  not  to  dishonorable  discharge.  There  is  no  record  of 
his  having  pleaded  a  previous  conviction.  He  accepted  service  afterthe 
second  trial  and  was  later  honorably  discharged.  Held,  that  as  the  first 
sentence  severed  him  from  the  service,  he  must  be  regarded  as  a  civ- 
ilian until  he  was  again  assigned  to  duty  and  that  by  acquiescing  in 
that  assignment  and  serving  under  it  he  was  constructively  enlisted, 
and  was  a  soldier  in  the  service  until  he  was  subsequently  honorably 
discharged.     C.  4965,  Sept.  12,  1898. 

I  A  3  b.  A  soldier  deserted  in  December,  1863,  was  subsequently 
dishonorably  discharged  and  confined  for  the  desertion  by  sentence 
of  a  court-martial,  but,  pending  the  confinement,  was  pardoned  by 
the  President  "on  condition  of  returning  and  faithfully  serving  out 
his  time  in  his  regiment."  He  complied  with  this  condition  and  was 
honorably  discharged.  Held  that  his  returning  to  his  regiment  and 
entering  upon  duty  as  a  soldier  pursuant  to  his  agreement  with  the 
President,  constituted  an  enlistment  for  the  period  agreed  upon.  P. 
65,  224,  June,  1894. 

I  A  3  c.  A  private  in  a  volunteer  company  was  in  1864  appointed 
captain  in  another  regiment.     He  accepted  and  entered  upon  the 

an  enlistment  on  his  part,  estopping  him  from  denying  his  military  capacity  when 
sought  to  be  made  amenable  as  a  deserter.  The  continued  rendering  of  service  which 
is  accepted  may  constitute  an  enlistment.  But  enlistments  in  our  Army  are  now 
almost  invariably  evidenced  by  a  formal  writing  and  engagement  under  oath.  See 
In  re  McDonald,  1  Lowell,  100.  An  enlistment  is  the  act  of  making  a  contract  to 
serve  the  Government  in  a  subordinate  capacity  either  in  the  Army  or  Navy. 
Erichson  v.  Beach,  40  Conn.,  283.  An  enlistment  is  a  contract  and  effects  a  change 
of  status.  In  re  Grimley,  137  U.  S.,  151;  Coe  -y.  U.  S.,  44  Ct.  Cls.,  419;  In  re  Morrissey, 
137  U.  S.,  157.  The  statutes  employ  the  term  "enlist"  only  with  reference  to  con- 
tracts with  persons  who  enter  the  Army  as  soldiers.  Babbitt  v.  U.  S.,  16  Ct.  Cls.,  214. 
6  0p.  Atty.  Gen.,  190,  Oct.  25, 1853:  ** Enlistments  into  the  Army,  made  under  the 
inducements  held  out  by  the  laws  of  the  United  States,  are  contracts;  and  although 
the  Government  be  a  party,  still  the  contracts  ought  to  be  construed  according  to 
those  well-established  principles  which  regulate  contracts  generally." 


604  ENLISTMENT  I  A  4. 

office.  Subsequently  an  order  was  issued  purporting  to  revoke  the 
appointment  and  directing  his  return  to  his  original  company  as  a 
private.  He  complied  with  the  order.  Held  that  while  this  order 
was  in  fact  void,  he,  by  complying  with  it,  abandoned  the  office  of 
captain,  and,  by  performing  services  as  a  private  which  were  accepted 
and  paid  for  by  the  Government,  constructively  enlisted  again. 
C.  2293,  June,  1896. 

I  A  4.  There  is  no  law  or  regulation  affecting  the  validity  of  an 
enhstment  made  on  Sunday.^  R.  33,562,  Dec,  1872;  C.  2619,  Sept., 
1896;  June  20,  1906  and  Oct  19,  1908. 

I  A  5.  The  engagement  alike  of  officers  and  soldiers  when  entering 
the  Army  has  always  been  held  to  recognize,  and  to  be  subject  to,  the 
right  of  the  Government  to  change  by  law  their  pay  and  allowances 
in  its  discretion  as  the  public  interests  may  require.  Held,  therefore, 
that  a  contract  of  enlistment  was  not  violated  by  the  United  States 
by  the  reduction  by  act  of  Congress,  pending  his  enlistment,  of  the  pay 
of  a  soldier  from  $16  to  $13  per  month.^    R,  34,  U2,  Sept.,  1873. 

I  A  6.  There  is  no  statute  that  authorizes  even  the  President  to 
accept  into  or  retain  in  the  military  service  of  the  United  States  an 
individual  soldier  on  a  condition  that  he  shall  be  sent  to  this  or  that 
part  of  the  country  to  serve.  A  practice  of  entering  into  such  agree- 
ments would  soon  prove  impracticable  and  inconsistent  with  public 
poKcy  and  the  interests  of  the  service.     C.  6731,  July,  1899. 

I  A  7.  Held  that  under  the  laws  relating  to  the  raising  of  a  volun- 
teer army,  recruits  for  the  United  States  Volunteers  are  enlisted  di- 
rectlv  into  the  service  of  the  United  States.^     C,  4631,  July  22, 1898. 

I A  8  a.  Held  that  the  date  set  forth  in  the  oath  is  the  date  on  which 
a  soldier  is  enlisted  within  the  meaning  of  the  Articles  of  War.*  C. 
10803,  July  5,  1901;  16562,  July^  7,  1904.  Held  also  that  proof  of  the^ 
date  of  enlistment  is  not  essential  to  proof  of  enlistment.  C.  3947,' 
Mar.  18,  1898. 

I  A  8  b.  Where  application  has  been  made  for  reenlistment  inside 
of  the  limit  of  time  but  its  acceptance  has  been  delayed  without  fault 
on  the  applicant's  part  beyond  the  limit  of  time,  held,  that  it  is  per- 
missible under  the  authority  of  the  Army  Regulations  to  have  the 
final  acceptance  relate  back  to  and  take  effect  on  the  date  of  accept- 

^  The  same  is  held  in  the  English  case  of  Wolton  v.  Gavin,  16  Q.  B.,  48. 

2  "The  executive  department  has  discretionary  authority  to  discharge  before  the 
term  of  service  has  expired  (fourth  article  of  war),  but  has  no  power  to  vary  the  con- 
tract of  enlistment."    4  Op.  Atty.  Gen.,  538.     (1847.) 

The  Secretary  of  War  can  release  a  soldier  from  his  contract  of  enlistment  by  a  dis- 
charge, but  has  no  power  to  suspend  it  even  with  the  soldier's  consent.  15  Op.  Atty. 
Gen.,  362.     (1877.) 

3  Volunteer  recruiting  service. — The  method  of  enlistment  in  the  case  of  volunteers  is 
regulated  by  sec.  5  of  the  act  of  Apr.  22,^  1898  (30  Stat.,  361),  which  confers  au- 
thority upon  the  Secretary  of  War  "to  prescribe  such  rules  and  regulations,  not  incon- 
sistent with  the  terms  of  this  act,  as  may  in  his  judgment  be  necessary  for  the  purpose 
of  examining,  organizing,  and  receiving  into  service  the  men  called  for."  Under 
the  authority  thus  conferred  regulations  were  prepared  by  the  Secretary  of  War  and 
promulgated  to  the  Army  in  a  circular  from  the  Adjutant  General's  office  under  date 
of  June  3,  1898.  Sec.  12  of  the  act  of  Mar.  2,  1899  (30  Stat.  977),  authorized  the 
recruitment  of  a  force  of  35,000  volunteers,  "without  restriction  as  to  citizenship  or 
educational  qualifications."  For  orders  regulating  the  enlistment  and  organization 
of  this  force  see  General  Orders,  No.  122  and  150,  A.  G.  O.,  of  1899. 

*  In  re  Grimley,  137  U.  S.,  147. 


ENLISTMENT  I  A  8  C.  605 

ance  of  the  Government's  oflfer  by  the  applicant  in  order  that  the 
soldier  may  be  considered  as  having  contmuous  service.^  G,  2317, 
May  22,  1896;  233,  Aug.  25,  1894;  611,  Nov.  10,  1894;  2123,  Mar. 
12,  1896;  10833,  July  26,  1901;  24837,  Oct.  9,  and  Nov.  11,  1909; 
25905,  Dec.  6, 1909,  and  Feb.  20, 1911;  27734,  Jan.  19,  1911. 

I  A  8  c.  A  discharged  soldier,  because  of  an  operation  performed 
on  him  for  a  disease  contracted  in  the  line  of  duty,  failed  to  reenlist 
within  the  legal  limit  of  time  provided  for  continuous  service.  Held, 
that  the  record  could  not  be  antedated  so  as  to  show  that  he  had 
been  continuously  in  the  service.^  C.  8170,  May  8,  1900;  3951,  Mar. 
21,  1898;  3978,  'Mar.  29,  1898;  19249,  Feb.  24,  1906. 

I  A  9  a.  A  fraudulent  enlistment  is  an  enlistment  procured  by 
means  of  a  willful  misrepresentation  in  regard  to  a  qualification  or 
disqualification  for  enlistment,  or  by  an  intentional  concealment  of  a 
disqualification,  which  misrepresentation  or  concealment  has  had  the 
effect  of  causing  the  enlistment  of  a  man  not  qualified  to  be  a  soldier 
and  who,  but  for  such  false  representation  or  concealment,  would 
have  been  rejected.^  P.  56,  219;  63,  153;  C.  17919,  Apr.  28,  1905; 
24912,  May  10,  1909. 

I  A  9  b.  Before  fraudulent  enlistment  was  made  a  military  offense 
by  the  act  of  July  27,  1892  (27  Stat.  278),  it  was  held  that  persons 
fraudulently  enlisting  (except  those  not  discharged  under  a  former 
enlistment)  could  not  be  tried  for  the  fraudulent  enlistment  as  a 
military  offense,  for  the  reason  that  when  the  act  was  committed 
they  were  not  in  the  ''land  forces.''  Held,  that  the  act  of  July  27, 
1892,  made  the  receipt  of  pay  and  allowances  a  part  of  the  offense."^ 
To  complete  the  offense,  tnerefore,  entry  into  the  service  by  means 
of  misrepresentation,  and  the  receipt  of  pay  and  allowances,  are 
necessary^  C.  7668,  Feb.  10,  1900;  9028,  Sept.  26,  1900;  11998, 
Jan.  30,  1902;  12929,  Aug.  7,  1902;  13686,  Nov.  17,  1902;  16562, 
Jan.  7,  1904;  18547,  Sept.  9,  1905. 

I  A  9  0  (1).  An  applicant  for  enlistment  told  a  recruiting  officer 
that  he  was  20  years  of  age,  and  was  enlisted,  without  the  consent 
of  his  parents.  Held  that  although  he  was  ineligible,  under  sec- 
tion 1117,  R.  S.,  yet  as  he  had  made  no  misrepresentation  as  to  his 
age,  his  enlistment  was,  therefore,  not  a  fraudulent  one.^  C.  8455 j 
June  23,  1900;  4244,  June  2,  1898. 

1  Reversed.  See  C.  14124,  Mar.  17,  1903:  also  see  Mms.  decision  of  the  comptroller 
published  in  Circular  63,  Headquarters  of  the  Army,  A.  G.  O.  series  1902;  also  see 
15  Op.  Atty.  Gen.,  362.  Coe  v.  U.  S.,  44  Ct.  Cls.,  419,  Mar.  29,  1909.  A  soldier  was 
discharged  Apr.  22,  1899.  He  applied  for  reenlistment  July  21,  1899,  signed  an 
application,  and  passed  the  physical  examination.  The  recruiting  officer  was  then 
called  elsewhere  on  official  business,  and  July  25,  1899,  certified  on  the  soldier's  dis- 
charge certificate  that  the  man  was  enlisted  July  25,  1899,  to  date  July  21,  1899. 
Decided  that  the  soldier  was  reenlisted  July  21,  1899.  See  par.  876  A.  R.,  1910  ed., 
as  amended  by  G.  O.  No.  60,  W.  D.,  series  1911  (May  8). 

2  See  VI  Comp.  Dec,  754,  Mar.  28,  1900. 

'  This  definition  was  published  in  par.  6,  Circ.  13,  A.  G.  0.,  1892. 

*See  In  re  Kaufman,  41  Fed.  Rep.,  876.  In  the  case  (In  re  Carver,  103  Fed. 
Rep.,  624)  the  court  said:  *'It  may  well  be  doubted  whether  under  the  Constitution 
fraudulent  enlistments  can  be  made  offenses  punishable  by  courts-martial;  but  there 
can  be  no  question  that  the  receipt  of  pay  or  allowance  after  fraudulent  enlistment 
may  be  made  so  punishable." 

^  In  re  Burns,  87  Fed.  Rep.,  796.  Sec.  1117,  R.  S.,  prohibits  the  enlistment  of 
a  minor  into  the  Volunteer  service  without  the  written  consent  of  his  parents  or 
guardian. 


606  ENLISTMENT  I  A  9  C  (2). 

I  A  9  c  (2).  An  applicant  for  enlistment  stated  to  a  recruiting  officer 
that  he  had  been  convicted  of  a  felony,  and  was  enlisted.  Held,  that 
his  enlistment  was  in  contravention  of  section  1118,  R.  S.,  but 
not  void,  and  having  been  entered  into  without  fraud  could  be  termi- 
nated only  by  an  honorable  discharge,  provided  no  cause  for  another 
kind  of  discharge  had  in  the  meantime  arisen.     C.  9490,  Dec.  21 ,  1900. 

I  A  9  d.  A  deserter  from  the  Navy  of  the  United  States  enlisted 
in  the  Army  by  concealing  the  fact  of  such  desertion.  Held,  that  he 
committed  the  offense  of  fraudulent  enlistment  and  might  be  brought 
to  trial  therefor.     R.  43,  167,  Jan.,  1880;  P.  69,  91,  Apr.,  1893. 

I  A  9  e.  A  soldier  on  trial  for  desertion  from  the  Army  pleaded  in 
bar  of  trial  that  as  he  was  a  deserter  from  the  Marine  Corps  at  the 
time  of  his  enlistment,  it  was  void.  Held  that  the  court  properly 
overruled  the  plea.  While  the  enlistment  in  the  Army  was  fraudu- 
lent, it  was  not  void,  but  voidable  at  the  option  of  the  Government 
only,  which  might  hold  him  to  the  existing  obligations  of  either  or 
both  enlistments.  Fraud  gives  onl;^  the  defrauded  party  the  option 
of  disaffirming  the  contract,  but  until  so  disaffirmed  it  remains  good.^ 
R.  Boole  48,  203,  Dec,  1883;  P.  2,  466,  Dec.  28,  1883. 

I  A  9  e  (1).  An  applicant  by  concealing  the  fact  that  he  was  a 
member  of  the  National  Guard  was  enlisted.  Held  that  his  enlist- 
ment was  fraudulent.2     C.  13943,  Nov.  9,  1910. 

I  A  9  f.  A  soldier  was  mustered  into  the  service  and  later  dis- 
honorably discharged  by  sentence  of  a  court-martial.  He  subse- 
quently reenlisted  in  another  regiment  and  served  therein  until 
mustered  out.  Held,  that  if  one  who  is  physically  and  mentally 
capable  of  rendering  service  as  a  private  soldier  is  employed  as  a 
soldier  and  renders  that  service,  he  is  a  soldier  even  though  there 
may  be  a  law  forbidding  his  enlistment  in  positive  terms,  unless 
that  law  declares  him  wholly  incapable  of  making  a  contract  of 
enlistment  (so  that  any  such  contract  entered  into  with  him  would  be 
absolutely  void).  The  law  that  merely  j)rovides  that  he  shall  not  be 
enlisted  would  be  violated  bj^  enlisting  him,  but  that  could  not  alter 
the  fact  that  he  had  been  enlisted  and  had  become  a  soldier  and  had 
performed  service.  If,  therefore,  men  are  enlisted  by  a  recruiting 
officer,  through  his  own  or  their  own  willful  disregard  of  the  provisions 
of  the  law,  or  through  their  fraud  or  deception,  or  the  recruiting 
officer's  ignorance  of  the  facts,  the  contract  is  simply  voidable,  and 
has  the  same  force  and  effect  as  the  enlistment  or  any  person  until 
duly  voided  by  the  Government.  P.  48,  366,  Aug.,  \891;  55,  183, 
Aug.,  1892;  C.  4797,  Aug.  15,  1898;  6398,  May  11,  1899. 

I  A  9  f  (1).  Held  that  the  fraudulent  enlistment  of  a  soldier  who 
had  been  discharged  without  honor  was  not  void  but  that  the  Secre- 
tary of  War  may  cause  him  to  be  tried  for  the  fraudulent  enlistment, 
or  to  be  summarily  discharged  therefrom  without  honor,  or  to  be 
restored  to  duty.     C.  4077,  Apr.  28,  1898. 

I  A  9  f  (2).  Held  that  the  fraudulent  enlistment  of  a  soldier  who 
had  been  dishonorably  discharged  for  desertion  was  not  void.  P.  4^, 
366;  C.  321,  Sept.  12,  1894;  ^59,  Sept.  19,  1894;  4^4,  Oct.  15,  1894; 
1429,  June  3,  1895;  1571,  July  19,  1895;  1624,  Aug.  6,  1895;  2115, 
Mar.  9,  1896;  2717,  Oct.  30,  1896;  4711,  July  30,  1898;  5592,  Dec.  29, 
1898. 

1  Bigelow,  Law  of  Fraud,  121.  2  cjj..  12,  A.  G.  O.,  1903,  and  62,  W.  D.,  1908. 


ENLISTMENT  I  A  9  f  (s).  607 

I  A  9  f  (3).  Held  that  the  fraudulent  enhstment  of  an  escaped 
general  prisoner  was  not  void,  and  in  a  particular  case  that  his  rec- 
ord after  such  enlistment  warranted  the  remission  of  the  unexecuted 
portion  of  his  sentence,  and  the  continuation  of  his  enlistment.  C. 
9099,  Oct.  10,  1900. 

I  A  9  f  (4).  Held  that  the  fraudulent  enlistment  of  a  discharged 
general  prisoner  was  not  void,  and  that  the  soldier  may  be  tried  for 
the  offense,  discharged  without  honor,  or  restored  to  duty.  C.  548 1, 
Dec.  9,  1898. 

I  A  9  f  (5).  Held  that  sections,  1116-1118,  R.  S.,  which  provide  that 
deserters,  convicted  felons,  insane  and  intoxicated  persons  and  certain 
minors  shall  not  be  enlisted,  etc.,  are  directory  only,  and  do  not 
necessarily  make  void  such  enhstments,  but  render  them  voidable 
merely  at  the  option  of  the  Government.^  P.  42,  82,  July,  1890;  48, 
367,  Aug.,  1891;  C.  9490,  Dec.  27,  1900,  and  Oct.  3,  1911;  17807,  Apr. 
10,  1905;  27507,  Nov.  19,  1910;  27711,  Jan.  17,  1911. 

I  A  9  f  (6).  Held  that  the  fraudulent  enlistment  of  a  minor  with- 
out the  consent  of  his  parent  or  guardian  is  not  void,  but  voidable; 
until  avoided  it  is  vahd.^    R.  49, 353  and  376,  Oct.,  1885;  50, 139,  Mar., 

^  Sees.  1116-1118,  R.  S.,  forbid  the  enlistment  of  deserters,  convicted  felons,  insane 
and  intoxicated  persons,  persons  over  35  years  of  age,  minors  under  16  years  of  age,  and 
minors  over  16  without  the  written  consent  of  their  parents  or  guardians.  The  Supreme 
Court  held  {In  re  Grimle^,  137  U,  S.,  147,  153)  that  the  enlistment  of  a  person  over 
35  years  of  age  was  not  void,  but  voidable  at  the  option  of  the  Government  only.  In 
delivering  the  opinion  of  the  court,  Mr.  Justice  Brewer,  excepting  insanity,  idiocy, 
infancy,  or  other  causes  which  disable  a  party  from  changing  his  status,  remarked  with 
reference  to  the  disqualifications  of  overage,  desertion,  and  conviction  of  felony: 
"These  are  matters  which  do  not  inhere  in  the  substance  of  the  contract,  do  not  prevent 
the  change  of  status,  do  not  render  the  new  relations  assumed  absolutely  void. " 

The  third  article  of  war,  however,  makes  the  offense  of  knowingly  enlisting  such 
a  man,  punishable,  upon  conviction,  by  dismissal  or  such  other  punishment  as  a  court- 
martial  may  direct. 

^  In  re  Wall,  8  Fed.  Rep.,  85;  McConologue's  case,  107  Mass.,  170;  In  re  Drew,  25 
Law  Rep.,  538;  In  re  Graham,  8  Jones  (N.  C),  416;  Wilbur  v.  Grace,  12  Johns.,  67; 
Ex  parte  Anderson,  16  Iowa,  598;  Com.  v.  Gamble,  11  Sergt.  &  Rawle,  93;  Tyler  v. 
Pomeroy,  8  Allen,  480,  501. 

The  enlistment  of  a  minor  over  16  years  of  age  without  the  written  consent  of  the 
parent  or  guardian  is  not  void  but  voidable  only.  In  re  Morrissey,  137  U.  S.,  157. 
It  is  not  voidable  at  the  instance  of  the  minor  (id.);  but  is  voidable  by  the  United 
States  or  by  the  parent  or  guardian.  Id.;  In  re  Wall.,  8  Fed.  Rep.,  85;  In  re  Davison, 
21  id.,  618;  In  re  Hearn,  32  id.,  141;  In  re  Cosenow,  37  id.,  668;  In  re  Dohrendorf,  40 
id.,  148;  In  re  Spencer,  id.,  149;  In  re  Lawler,  id.,  233;  In  re  Dowd,  90  id.,  718;  McCono- 
logue's case,  107  Mass.,  170.  As  the  enlistment  of  such  a  minor  is  not  void  but  void- 
able only,  he  is,  until  the  enlistment  is  duly  avoided,  legally  a  soldier  and  can  desert 
or  commit  any  other  military  offence;  and  when  held  for  trial  or  punishment  therefor, 
the  interests  of  the  public  in  the  administration  of  justice  are  paramount  to  the  right 
of  the  parent  or  guardian,  and  recjuire  that  the  soldier  shall  abide  the  consequences 
of  his  offence  before  the  right  to  his  discharge  is  passed  upon.  In  re  Cosenow,  37  Fed. 
Rep.,  668;  In  re  Kaufman,  41  id.,  876;  In  re  Dowd,  90  id.,  718;  McConologue's  case, 
107  Mass.,  170.  See,  also.  General  Orders,  No.  127,  A.  G.  O.,  1900,  and  other  author- 
ities cited  therein. 

It  is  voidable  at  the  instance  of  the  parent  or  guardian.  Com.  v.  Blake,  8  Phil.,  523; 
Turner  v.  Wright,  5  ibid.,  296;  Menges  v.  Camac,  1  Serg.  and  R.,  87;  Henderson  v. 
Wright,  ibid.,  299;  Seavey  d.  Seymour,  3  Cliff.,  439;  In  re  Cosenow,  37  Fed.  Rep.,  668; 
In  re  Hearn,  32  ibid.,  141;  In  re  Davison,  21  ibid.,  618;  U.  S.  v.  Wagner,  24  ibid.,  135; 
In  re  Dohrendorf,  40  Fed.  Rep.,  148;  In  re  Spencer,  ibid.,  149;  In  re  Lawler,  ibid., 
233;  In  re  Wall,  8  ibid.,  85. 

In  re  Lawler,  40  Fed.  Rep.,  233,  it  was  held  that  the  enlistment  of  a  minor  under 
16  years  of  age  would  be  void,  with  or  without  the  consent  of  the  parent;  but  this  is 
not  thought  to  be  the  correct  view.  The  statute  probably  renders  the  enlistment 
voidable  at  the  instance  of  the  minor,  as  well  as  at  the  instance  of  the  parent  or  guardian 
where  the  enlistment  was  without  his  consent,  but  if  the  minor  has  capacity  to  enter 


608  ENLISTMENT  I  A  9  f  (l)   (a). 

1886;  C.  2870,  Jan.,  1897;  8982,  Sept.  19,  1900;  12968,  July  15,  1902; 
16192,  Oct.  17,  1907. 

I  A  9  f  (7)  (a).  A  married  man  enlisted  as  a  single  man.^  Held 
that  such  an  enlistment  is  not  prohibited  by  statute  and  is  therefore 
not  intrinsically  illegal.  Held  further  that  as  the  only  provision  on 
the  subject  is  a  regulation,  which  forbids  such  enlistments,  such  regu- 
lation is  really  no  more  than  a  direction  to  the  recruiting  officer.^ 
R.  32,  72,  Oct.,  1871;  38,    616,  June,  1877;    39,  1^67,  Feb.,  1878. 

I  A  9  f  (7)  (6) .  A  soldier  who  had  twice  been  dishonorably  discharged, 
enlisted  fraudulently  and  served  his  term  honestly  and  faithfully. 
He  reenlisted  again  and  was  tried  and  convicted  upon  his  plea  of 
guilty  of  fraudulently  enlisting  by  falsely  representing  that  he  had 
never  been  discharged  from  the  service  of  the  United  States  by  a  sen- 
tence of  a  court-martial  and  was  sentenced  to  confinement  and  for- 
feiture. Held  that  the  fact  that  his  service  during  his  last  preceding 
term  of  enlistment  had  been  honest  and  faithful  removed  his  case 
from  the  operation  of  the  act  of  August  1,  1894  (28  Stat.  216),  but 
did  not  protect  him  from  the  effect  of  the  fraudulent  enlistment,  viz, 
his  intentional  concealment  of  a  disqualification  for  reenlistment, 
which,  if  known,  would  have  prevented  his  reenlistment.  C.  6290, 
Apr.  20,  1899;  6406,  May  16,  1899;  7542,  Jan.  13,  1900;  11677,  Dec, 
3,  1901;  16119,  Apr..  2,  1904- 

I  A  9  f  (8).  An  enlistment  in  violation  of  article  50  is  not  void  but 
voidable  at  the  option  of  the  United  States  only.  Until  so  avoided 
service  under  it  is  valid  service.  P.  4^,  4^,  Sept.,  1890;  53, 254,  Apr., 
1892;  C.321,355and359,  Sept., 1894;  494,Oct., 1894; 538, Oct.22, 1894; 
902,  Feb.,  1895;  1429,  June,  1895;  1571,  July,  1895;  1624,  Aug.,  1895; 
2022,  Jan.,  1896;  2115,  Mar.,  1896;  2269,  May,  1896;  2717',Oct.  30, 
1896;  18492,  Aug.  31,  1905.  On  a  trial  for  an  offense  committed 
during  such  enlistment,  a  plea  by  the  accused,  in  bar  of  trial,  that 
this  enlistment  being  fraudulent  on  his  part,  is  void,  should  not  be 
sustamed.     P.  39,  257,  Mar.,  1890;  C.  23644,  Mar.  2,  1909. 

I  A  9  g  (1).  A  soldier  who  had  been  dishonorably  discharged  for 
other  offenses  than  desertion  fraudulently  enlisted.  Held  that  he 
may  be  allowed  to  serve  out  such  enlistment  or  he  may  be  discharged 
therefrom  without  honor,  or  brought  to  trial  for  the  offense  of  fraudu- 
lent enhstment  at  the  option  of  the  Government.  C.  4797,  Aug., 
1898;  5481,  Dec,  1898;  15533,  Nov.  24,  1903;  16192,  Apr.  22,  1904; 

into  the  status  of  a  soldier,  and  while  in  that  status  commits  a  military  offence,  he 
should  abide  the  consequences  of  the  offence  before  being  discharged. 

See  also,  Ex  parte  Hubbard  (182  Fed.  Rep.,  76)  where  the  decision  of  the  court,  quot- 
ing the  syllabus,  was  as  follows: 

"A  minor  enlisted  in  the  Army  when  under  the  age  of  16,  who  has  continued  to 
serve  and  receive  pay  after  passing  that  age,  acquires  the  status  of  a  soldier  like  one 
who  was  enlisted  when  over  16  without  the  consent  of  his  parents,  and  a  court-martial 
has  jurisdiction  to  try  and  sentence  him  to  punishment  for  desertion,  from  which 
sentence  he  can  not  be  discharged  on  habeas  corpus  on  petition  of  himself  or  his 
parents. " 

1  The  enlistment  of  married  men  is  discouraged  by  the  Army  Regulations  (869 
A.  R.),  ed.  1910. 

2  ''If  a  man  at  the  time  of  his  enlistment  denies  that  he  is  a  married  man  and  enlists 
as  a  single  man,  the  fact  that  he  has  a  wife  and  child  does  not  entitle  him  to  be  dis- 
charged on  habeas  corpus,^  although  it  is  provided  in  the  Army  Regulations  that  no 
married  man  shall  be  enlisted  without  special  authoritv  from  the  Adjutant  General's 
Office."  Ex  parte  Schmeid,  1  Dillon,  587  (1871— No.  12461,  Federal  Cases).  See 
similar  ruling  in  Ferren's  case,  3  Benedict,  442  (1869 — No.  4746,  Federal  Cases). 


ENLISTMENT  I  A  9  g  (2).  609 

lOS^Oy  Apr.  H,  1906;  23394,  June  6,  1908.  Held  further  that  when 
a  man,  since  his  fraudulent  enlistment,  has  had  a  good  character  and 
a  record  for  good  service,  it  is  the  policy  of  the  War  Department  to 
retain  the  man  and  enjoy  the  advantage  of  his  service.  C.  27507, 
Nov.  19,  1910. 

I  A  9  g  (2).  A  minor  who  enlists  without  the  consent  of  his  parent 
or  guar(£an  and  procures  his  enlistment  by  intentionally  conceahng 
the  fact  that  he  is  a  minor,  receiving  pay  and  allowances  thereunder, 
may  be  retained  in  the  service,  discharged  without  honor,  held  for 
trial  for  fraudulent  enlistment,  honorably  discharged,  or  restored  to 
duty  without  trial,  in  the  discretion  of  the  Secretary  of  War.  C. 
42Uy  June,  1898. 

I A  9  g  (3).  A  soldier  fraudulently  enlisted  without  a  discharge  from 
a  prior  enlistment.  Held  that  he  may  be  brought  to  trial  for  desertion 
and  fraudulent  enlistment,  or  he  may  be  restored  to  duty  without 
trial  and  held  to  serve  either  the  fraudulent  enlistment  or  the  one  from 
which  he  deserted,  or  both,  at  the  option  of  the  Government.  P.  Ifi, 
U2,  Oct.,  1891;  a  321,  Sept.  12,  1894;  S59,  Sept.,  1894;  ^115,  Mar., 
1896;  4663,  July  23,  1898;  4711,  Aug.,  1898;  5465,  Dec.  8,  1898; 
5513,  Dec.  20,  1898;  5592,  Jan.,  1899;  13322,  Sept.  17,  1902;  203.14, 
Mar.  19,  1908;  25906,  Dec.  18,  1909. 

I  A  9  g  (4).  A  soldier  who  was  not  a  deserter  fraudulently  enlisted 
by  concealing  the  fact  that  he  had  previously  been  discharged  on  a 
certificate  of  disabihty.  Held  that  the  case  could  be  disposed  of  by 
referring  it  to  a  court-martial  or,  if  that  course  be  impracticable,  he 
could  be  discharged  without  honor,  or  service  could  be  accepted  under 
the  fraudulent  enlistment,  in  which  case  if  the  enlistment  be  faith- 
fully served  the  soldier  would  become  entitled  to  an  honorable  dis- 
charge.    C.  27409,  Oct.  28,  1910. 

I  A  9  h.  In  a  case  where  a  soldier  while  absent  in  desertion  fraudu- 
lently enlisted,  lield,  in  accordance  with  the  view  held  for  many  years 
by  the  Department,  that  if  he  was  not  to  be  tried  for  the  desertion  and 
fraudulent  enlistment  he  should  be  discharged  without  honor  from 
the  former  enlistment  from  which  he  deserted,  and  be  held  to  the 
second  or  fraudulent  enlistment.  C.  23644,  July  12,  1909;  20314, 
Aug.  31,  1906,  Feb.  17,  July  12,  and  Sept.  13,  1909. 

I A  9  1.  A  soldier  enlisted  fraudulently,  was  tried  but  not  sentenced 
to  dishonorable  discharge.  Held  that  the  Government  could  not 
properly  also  summarily  discharge  him.  Wliile  it  might  have  resorted 
to  either  course,  it  would  scarcely  be  just  to  subject  the  offender  to 
both.  P.  60, 174,  June,  1893;  0.  1512,  July  2, 1895;  18492,  Aug.  31, 
1905;  22983,  Mar.  26,  1908. 

I  A  9  k.  The  enactment  of  the  law  making  fraudulent  enlistment  a 
military  offense  (sec.  2,  act  of  July  27,  1892,  27  Stat.,  278)  did  not  take 
it  out  of  the  law  of  contracts.  Fraudulent  enlistment  has  a  two-fold 
character — criminal  and  civil.  In  the  latter  character  it  is  a  fraudu- 
lent contract  which  may  be  avoided,  and  when  a  contract  is  avoided 
for  fraud,  the  party  committing  the  fraud  has  no  ri^ht  to  the  benefits 
of  the  contract.  Held  that  it  is  legal  to  summarily  discharge  a  fraudu- 
lently enlisted  soldier  with  this  loss  of  rights  under  the  contract  of 
enlistment,  if  it  should  be  deemed  best  to  so  dispose  of  him  instead  of 
bringing  him  to  trial.     P.  58,  318,  Mar.,  1893. 

I A  9  1.  There  is  a  distinction  between  a  fraudulent  contract 
of  enlistment  and  the  character  of  service  thereunder.  While  the 
31106°— 12 39 


610  ENLISTMENT  I  A  9  m. 

former  is  voidable  at  the  option  of  the  Government,  the  service  is 
legal  service  and,  if  the  contract  be  not  avoided  on  account  of  the 
fraud,  the  soldier  would  be  entitled  to  such  a  discharge  upon  comple- 
tion of  his  term  as  his  services  may  merit.  Held  that  if  the  discharge 
is  an  honorable  one,  it  should  in  general  be  viewed  as  establishing 
the  fact  that  the  service  referred  to  therein  was  honest  and  faithful. 
C.  365,  Sept.  18,  1894;  ^022,  Jan.  27,  1896;  2269,  May  6,  1896; 
6406,  May,  1899. 

I  A  9  m.  Held  that  time  actually  served  under  a  fraudulent  enlist- 
ment should  be  counted  in  computing  the  30  ^rears  necessary  to 
entitle  the  soldier  to  retirement  under  the  provisions  of  the  act  of 
September  30,  1890  (26  Stat.  504).  C.  355,  Sept.,  1894;  2022,  Jan., 
1896;  7108,  Oct.,  1899. 

I  A  9  n.  Held  that  the  award  of  a  certificate  of  merit  to  a  soldier 
who  was  serving  under  a  fraudulent  enlistment  was  lawful,  and  that 
upon  being  restored  to  duty  without  trial  he  was  entitled  to  the 
additional  pay  which  is  authorized  by  the  statutes.  C.  16644,  e/i^Zv 
27,  1904. 

I  A  9  0.  Held  that  service  under  a  fraudulent  enlistment  counts 
toward  continuous  service,  unless  the  enHstment  is  voided  as  fraudu- 
lent by  the  Government.^  C.  2269,  May  6,  1896;  16644,  July  27, 
1904;  22333,  Nov.  9,  1907.^ 

I  A  10.  Held,  that  section  1162,  R.  S.,  which  provides  for  enlist- 
ment for  service  in  the  Ordnance  Corps,  does  not  prevent  the  Secretary 
of  War  from  designating  a  class  of  persons,  such  as  married  men,  from 
whom  enlistment  shall  not  be  made.     C.  1655,  Aug.  13,  1905. 

I  A  11.  Held  that  there  is  no  legal  objection  to  giving  general 
authority  to  the  Chief  Signal  Officer  of  the  Army  to  enlist  married 
men  and  men  who  have  minor  children  for  service  in  the  Volunteer 
Signal  Corps.     C.  4208,  May  31,  1898. 

I  A  12.  Upon  request  for  an  opinion  as  to  whether  colored  men 
could  be  enlisted  for  the  Coast  Artillery,  held  that  in  view  of  the  fact 
that  Congress  had  designated  certain  organizations  in  the  Army  to 
be  composed  entirely  of  colored  men  and  that  as  the  Coast  Artillery 
did  not  include  such  organizations,  the  enlistment  of  colored  men 
for  duty  in  the  Coast  Artillery  is  not  authorized .^  C.  17030,  Apr, 
30,  1907. 

I  B  1  a.  Upon  request  for  information  as  to  whether  the  age 
limit  is  fixed  by  regulations,  held  that  the  act  of  March  2,  1899  (30 
Stat.  977),  fixes  the  age  limits  as  18  to  35,  and  that  it  is  beyond  the 
power  of  the  executive  to  waive  the  limit  in  a  particular  case.® 
C.  4306,  Feb.  8,  1907. 

I  B  1  b.  A  minor  with  the  signed  consent  of  his  guardian  applied 
for  enlistment.  Held,  that  the  written  consent  of  the  legally  appomted 
guardian  of  a  minor  is  sufficient  for  his  enlistment  unless  there  is 
some  restriction  on  the  guardian's  authority  by  the  court  appointing 
him.     C.  10040,  Aug.  2,  1909;  12968,  Aug.  12  and  28,  1908. 

IB  1  b  (1).  An  alien  minor,  with  the  consent  of  his  parent,  v^ho 
had  taken  out  preliminary  naturalization  papers,  requested  enlist- 
ment.    Held,  that  the  enlistment  of  the  mmor  is  lawful  and  within 

1  XII  Comp.  Dec,  326. 

2  17  Op.  Atty.  Gen,  47,  Feb.  24,  1881.  The  enlistment  of  white  men  in  colored 
regiments  is  prohibited  by  implication  by  sees.  1104  and  1108,  R.  S. 

3  See  sees.  1116,  1117,  and  1118,  R.  S. 


ENLISTMENT   I   B  1  b  (2).  611 

the  operation  of  section  4  of  the  act  of  March  2,  1899  (30  Stat.,  978), 
which  fixes  the  age  of  enhstment  as  from  18  to  35.  C,  6726,  May 
3,  1907. 

IB  1  b  (2).  An  alien  minor  with  thfe  consent  of  his  guardian 
requested  enhstment.  He  was  rejected  at  the  depot  under  the  mis- 
undei-standing  that  an  alien  minor  whose  father  is  living  is  not  com- 
petent to  declare  his  intention  to  become  a  citizen  of  the  United 
States  without  the  consent  of  his  parents.  Held  that  as  section  4  of 
the  act  of  June  29,  1906  (34  Stat.,  596),  authorizes  an  ahen  minor 
independently  of  his  family  to  make  a  declaration  of  his  intention  to 
become  a  citizen  at  any  time  after  he  reaches  the  age  of  18,  the  appli- 
cant could  declare  his  intention  to  become  a  citizen  of  the  United 
States,  without  the  consent  of  his  father.  C.  IOO4O,  Nov.  28  1910; 
12968,  Sept.  2,  1908. 

I  B  1  b  (3).  An  Indian  minor,  whose  father  was  dead,  was  enlisted 
with  the  consent  of  his  uncle  who  had  not  been  appointed  his  guardian. 
Held,  that  neither  the  uncle  nor  the  Indian  agent  was  guardian,  and 
that  the  enhstment  was  in  violation  of  the  regulation.^  C.  I84,  Aug., 
1891 

I  B  1  b  (4).  An  applicant  for  enhstment  who  was  a  minor  pre- 
sented the  written  consent  of  liis  mother  and  stated  that  she  had  been 
separated  from  the  father  for  a  number  of  years.  Held  that  the 
father  is  the  natural  guardian  of  a  minor  child,  if  living,  or  unless  a 
total  divorce  has  been  decreed  by  which  the  custody  of  the  children 
is  granted  to  the  mother.  Mere  separation,  unless  in  the  operation  of 
a  formal  agreement,  does  not  affect  the  custody  of  the  minor  children 
or  vest  guardianship  in  the  mother.     C.  100 Jfi,  July  11,  1910. 

I  B  1  b  (5).  A  minor  in  Texas  without  his  parents'  or  guardian's 
consent  apphed  for  enhstment  and  presented  evidence  to  show  that 
his  disabilities  as  a  minor  had  been  removed  under  articles  3499  to 
3502,  Civil  Laws  of  Texas.  He  was  enlisted.  Held,  that  his  enlist- 
ment was  legal.     C.  22^18,  Nov.  30,  1907. 

I  B  2  a.  The  act  of  August  1,  1894  (28  Stat.,  216),  fixes  the  term 
of  enlistment  as  three  years.  Held,  that  this  applies  to  all  enhstments 
for  the  Army,  and  no  exception  can  be  made  in  the  case  of  an  Indian. 
a  249,  Aug.,  1894;  I8486,  Aug.  26,  1905. 

I  B  2  b.  The  act  of  May  11,  1908  (35  Stat.,  109),  provides  ''that 
an  enlistment  shall  not  be  regarded  as  complete  until  the  soldier  shall 
have  made  good  any  time  lost  during  an  enlistment  period  hj  unau- 
thorized absences  exceeding  one  day."  Held  that  under  this  law  a 
soldier  absent  in  the  hands  of  civil  authorities  is  absent  without  leave 
unless  he  shall  be  acquitted.     C.  17518,  Oct.  2,  1911, 

I B  2  b  (1).  After  a  soldier  had  served  three  years  he  was  discharged 
per  expiration  of  term  of  enlistment.  He  could  have  been  held  to 
make  good  time  lost,  but  this  was  not  done,  due  to  neglect  on  the 
part  of  the  company  clerk  and  the  first  sergeant.  Held  that  the  dis- 
charge was  for  the  convenience  of  the  Government  and  that  the  sol- 
dier was  entitled  to  have  the  enlistment  recorded  as  a  complete 
enlistment  under  the  provisions  of  the  act  of  May  11,  1908  (35  Stat. 
109).     C.  18438,  Sept  19, 1911. 

I  B  2  0.  An  enlisted  man  of  the  Signal  Corps  was  employed  at  a 
telegraph  station  in  Alaska,  which  was  inaccessible  at  certain  seasons 


^  Sec.  1117,  R.  S.,  also  forbids  such  enlistment. 


612  ENLISTMENT   I  B  2  d. 

of  the  year.  Held  that  where  it  is  believed  to  be  to  the  public  inter- 
est, such  enlisted  man  may  be  discharged  before  the  end  of  his  enlist- 
ment and  reenlisted ;  or,  in  an  emergency,  and  with  a  view  to  prevent 
the  interruption  of  the  telegraph  lines,  he  may  be  continued  m  serv- 
ice, with  his  consent,^  under  his  enlistment,  until  he  can  reach  a  place 
where  he  can  be  reenlisted.^  C^  19281,  Mar.  2,  1906;  16900,  Sept.  16, 
1904,  ^ug.  27  and  Oct.  23,  1907;  17700,  Mar.  25,  1905. 

I  B  2  d.  The  enlistment  of  certain  volunteer  soldiers  in  1862  was 
''for  three  years  or  during  the  war."  Held  that  this  meant  three  years 
from  the  date  of  muster,  if  the  war  should  last  that  long,  and  if  it 
should  not,  then  until  it  should  end;  that  the  reference  to  the  dura- 
tion of  the  war  was  a  restriction  and  not  an  extension  of  the  term.^ 
R.  42,  524,  Mar.,  1880;  C.  6312,  Apr.,  1899. 

I  B  2  e.  Under  the  act  of  April  22,  1898  (30  Stat.  361),  it  was  pro- 
vided that  "all  enlistments  for  the  Volunteer  Army  shall  be  for  the 
term  of  two  years,  unless  sooner  terminated  *  *  *."  Also  that 
"all  officers  and  men  composing  said  Army  shall  be  discharged  from 
the  service  of  the  United  States  when  the  purposes  for  which  they 
were  called  into  service  have  been  accomplisnea  or  on  the  conclusion 
of  hostilities."  Held  that  this  last  provision  is  directed  to  the  Presi- 
dent and  makes  it  his  duty  to  disband  the  Volunteer  Army  when  the 
occurrences  named  take  place,  but  that  no  right  is  therem  given  to 
an  individual  to  claim  a  discharge  before  the  end  of  the  two  years  for 
which  he  enlisted.*  C.  4822,  Aug.  20,  1898;  4891,  Sept.  1,  1898; 
4897,  Sept.  3,  1898;  6312,  Apr.  24,  1899. 

I  B  2  f.  Soldiers  whose  terms  of  enlistment  expired  before  they 
reached  San  Francisco,  after  service  in  the  Philippine  Islands,  were 
held  in  service  for  discharge  in  the  United  States.  Held  that  such 
retention  was  proper  and  based  upon  an  exigency  of  the  service,^ 
viz,  the  necessity  lor  retaining  enlisted  men  under  military  confrol 
throughout  the  homeward  voyage.  C.  13517,  Aug.  13,  1903;  16900, 
Sept.  16,  1904;  17700,  Mar.  25,  1905. 

I  B  2  g.  In  1904  a  battalion  of  Philippiine  Scouts  were  in  the  United 
States  participating  in  the  Louisiana  Purchase  Exposition  at  St. 
Louis.  Their  terms  of  enlistment  expired  September  30  and  it  was 
desired  to  retain  them  in  the  service  for  the  convenience  of  the  Govern- 
ment for  about  two  months,  viz,  until  about  November  30,  1904. 
Held  that  there  was  no  authority  of  law  for  retaining  them  in  the 
service  beyond  the  term  of  their  enlistment.     C.  16900,  Sept.  16, 1904. 

I  B  2  h.  Where  a  soldier  was  sentenced  to  a  forfeiture  of  $10  per 
month  of  his  pay  for  18  months,  and  his  term  of  enlistment  expired 
before  the  end  of  that  time,  held  that  he  could  not  legally  be  retained 
in  the  service  beyond  such  term  for  the  pui-pose  of  the  full  execution 
of  the  forfeiture.     R.  16,  94,  May,  1865. 

^  15  Op.  Atty.  Gen.,  152,  Sept.  1,  1876.  "A  soldier's  engagement  expires  with  the 
last  day  of  the  term,  unless  before  the  term  is  up  he  consents  to  an  extension." 

2  II  Comp.  Dec,  94,  Aug.  31, 1895.  An  enlisted  man  remains  in  the  service  until 
receipt  of  his  discharge  or  until  such  action  is  taken  as  will  render  him  legally  charge- 
able with  notice  thereof,  notwithstanding  the  expiration  of  his  term  of  enlistment 
during  his  absence  on  a  furlough  granted  at  his  own  request. 

3  Breitenbach  v.  Bush,  44  Pa.  St.,  317.  And  see  Clark  v.  Martin,  3  Grant's  Cases, 
393;  do.,  5  Phila.,  251. 

MOp.  Atty.  Gen.,  538. 

5  See  Dinsman  v.  Wilkes  (53  U.  S.,  389.) 


ENLISTMENT  I   B   2  i.  613 

I  B  2  i.  Held  that  a  soldier  too  sick  to  receive  notice  of  discharge 
at  expiration  of  term  of  enlistment  is  held  in  the  service  awaiting 
service  of  notice  of  discharge,  and  his  status  is  one  of  duty.  C. 
26340,  Feh.  19,  19W. 

I  B  3  a.  A  soldier  was  honorably  discharged  after  30  years'  service 
and  upon  application  for  reenlistment  it  appeared  that  he  had  been 
convicted  or  a  felony,  sei-ved  his  sentence,  and  had  then  been  granted 
a  full  and  unconditional  pardon  by  the  President.  Held  that  the 
pardon  released  him  from  all  his  disabilities  imposed  by  the  offense, 
out  did  not  restore  his  eligibihty  for  enlistment,  as  the  fact  remained 
that  he  was  a  convicted  felon  and  was  ineligible  for  enlistment  under 
the  provisions  of  section  1118,  R.  S.  Also  held  that  the  conviction 
can  not  be  imputed  to  him  to  prevent  the  assertion  of  his  legal  rights 
and  that  the  privilege  of  enlisting  in  the  Army  is  not  a  legal  right.* 
P.  36,  262,  Nov.,  1889;  C.  2769,  Nov.  SO,  1896;  4219,  June  1,  1898; 
4513,  July  12,  1898;  6729,  July  15,  1899;  8293,  June  4,  1900;  IIO48, 
Sept.  10,  1901. 

I B  3  b.  Section  1229,  R.  S.,  provides  that  an  officer  shall  be  dropped 
from  the  rolls  for  desertion.  Held  that  an  officer  so  dropped  is 
ineligible  for  reappointment  as  an  officer  and,  under  section  1118, 
R.  S.,  for  enlistment  or  muster  intq  the  military  service  as  a  soldier. 
C.  4513,  July  12,  1898. 

I  B  3  c.  Paragraph  859,  Army  Regulations  of  1908,  prohibits  the 
enlistment  of  a  man  who  has  been  imprisoned  under  sentence  of  a 
court  in  a  reformatory,  jail,  or  penitentiary.  Held  in  the  case  of  an 
apphcant  for  enlistment  who  had  committed  no  criminal  offense,  but 
wlio  had  been  sent  at  his  own  request  to  a  workhouse  in  the  city  of 
New  York,  that  the  regulation  in  question  did  not  prohibit  his  enlist- 
ment. C.  9490,  Apr.  2,  1910.  Similarly  held  in  the  case  of  a  boy 
who  was  convicted  of  maUciously  destroying  certain  personal  prop- 
erty and  committed  by  the  court  to  the  State  Industrial  School  for 
Boys  at  Golden,  Colo.     C.  9490,  Dec.  9,  1911,  and  Jan.  10,  1912. 

I  C  1  a.  A  foreigner  requests  enlistment  in  the  Army.  Held  that 
unless  he  has  become  a  citizen  of  the  United  States  or  made  legal 
declaration  of  his  intention  to  do  so  his  enlistment  is  prohibited  in 
time  of  peace  ^  by  section  2  of  the  act  of  August  1, 1894  (28  Stat.  216). 
C.  168,  Aug.  13, 1894;  8O4,  Dec.  26, 1894;  5148,  Oct.  21, 1898;  12968 ^ 
Nov.  12,  1908,  and  Oct.  1,  1910.  Service  by  an  American  in  a  foreign 
army  does  not  renounce  his  United  States  citizenship.  C.  14609, 
May  5,  1903,  and  Jan.  24,  1910. 

1  C  1  b.  Article  14  of  the  amendments  to  the  Constitution  of  the 
United  States  defines  the  term  ''citizens."  Held  that  native-born 
minors  are  citizens  of  the  United  States  under  this  definition  and  may 
be  enlisted  under  the  act  of  August  1,  1894  (28  Stat.  216).  C.  181, 
Aug.  16,  1894;  8O4,  Dec.  26,  1894.  Also  held  that  persons  born  in 
the  United  States  of  alien  parents  who  were  not  enjoying  the  privi- 
lege of  exterritoriality  and  who  have  not  left  the  jurisdiction  of  the 
United  States  are,  after  becoming  of  age,  citizens  and  capable  of 
enlisting.     C.  20540,  Jan.  11,1911. 

^  See  sec.  1116-1118,  R.  S.,  which  forbid  the  enlistment  of  deserters,  convicted 
felons,  insane  and  intoxicated  persons,  persons  over  35  years  of  age,  minors  under  16 
years  of  age,  and  minors  over  16  without  the  written  consent  of  their  parents  or  guard- 
ians. 

2  3  Op.  Atty.  Gen.,  671. 


614  ENLISTMENT  I  C  1  C. 

I  C  1  c.  The  act  of  August  1,  1894  (28  Stat.  216),  is  limited  to 
'Hime  of  peare."  Held,  that  the  enlistment  of  four  musicians  for- 
merly in  the  Spanish  Army  in  Porto  Rico,  could,  the  war  with  Spain 
not  having  terminated,  legally  be  authorized.  C.  6148,  Oct.,  1898; 
6726,  July  12,  1899. 

I  CI  c  (1).  The  act  of  August  1,  1894  (28  Stat.  216)  provides  that 
with  the  exception  of  Indians,  only  citizens,  or  those  who  have  made 
legal  declaration  of  their  intention  to  become  such,  shall  be  enlisted 
for  first  enlistment  in  the  Army.  Held,  that  aliens  may  enhst  in  the 
Volunteer  Army  now  being  raised  (July  12,  1899),  also  that  alien 
children  of  ahen  parents  who  reach  their  majority  after  their  parents 
have  become  naturalized  are  citizens  of  the  United  States,  but  that  if 
they  reach  their  majority  before  their  parents  are  naturalized  they 
are  not  citizens  of  the  United  States.  C.  168,  Aug.  13,  1894;  ^550, 
Dec.  20,  1898;  6726,  July  12,  1899 

I  C  1  d.  The  act  of  August  1,  1894  (28  Stat.  216),  limits  eligibility 
for  enlistment  in  time  of  peace  (with  the  exception  of  Indians)  to 
citizens  of  the  United  States  or  to  those  who  have  made  legal  declara- 
tion of  intention  to  become  citizens.  Held,  that  this  does  not  pro- 
hibit the  enlistment  of  an  alien  minor  with  the  consent  of  his  parents 
in  time  of  war.     C.  5550,  Dec.  20.,  1898. 

I  C  1  e  (1).  The  treaty  with  Spain  entered  into  on  the  11th  of 
April,  1899,  vested  in  the  United  States  sovereignty  over  the  island  of 
Porto  Rico,  but  it  remains  for  Congress  to  determine  what  relations 
shall  be  best  suited  to  the  conditions  of  these  inhabitants  and  the 
welfare  of  the  United  States.  Held,  that  pending  such  action  there 
could  be  no  legal  objection  to  an  individual  Porto  Rican  becoming  a 
naturalized  citizen  of  the  United  States  by  complying  with  the 
requirements  of  law,  and  that  if  such  Porto  Rican  makes  legal  declara- 
tion of  his  intention  to  become  a  citizen,  he  wiU  thereby  acquire 
eUgibility  for  enlistment  in  the  Army  under  the  act  of  August  1,  1894 
(28  Stat.,  216).     C.  11287,  Sept.  25,^  1901;  9928,  Mar.  1,  1901. 

I  C  1  f .  Two  natives  of  the  Philippine  Islands  enlisted  (Nov., 
1903),  as  musicians  in  the  band  of  the  Twenty-ninth  Infantry  and 
another  native  enlisted  (Aug.,  1902),  in  the  band  of  the  Ninth  Cavalry, 
under  telegraphic  authority  from  the  Adjutant  General  to  the  Com- 
manding General  of  the  Philippine  Islands,  dated  March  17,  1900. 
Held,  that  the  enlistment  in  time  of  peace  of  these  Filipinos  under 
that  authority  given  in  time  of  war  was  unlawful  and  that  they  should 
be  discharged.     C.  15893,  Feb.  11,  1904;  16096,  Mar.  22,  1904- 

I  C  1  g.  An  alien  in  Cuba  in  1902  desired  to  enlist  in  the  Army  and 
requested  information  as  to  the  proper  official  before  whom  he  could 
declare  his  intention  to  become  a  citizen  of  the  United  States.  Held 
that  naturahzation  can  onlj  be  obtained  in  accordance  with  the  stat- 
utes of  Congress  on  the  subject  and  that  those  statutes  give  no  juris- 
diction in  the  matter  to  any  official  in  Cuba  and  that  therefore  a  decla- 
ration before  any  official  in  Cuba  would  not  be  a  ''legal  declaration" 
within  the  meaning  of  the  statute.     C.  12973,  July  17,  1902. 

I  D  1.  The  term  ''reenlistment"  is  sometimes  used  in  the  narrow 
sense  of  an  enlistment  within  one  month  after  discharge  under  sections 
1282  and  1284,  R.  S. ;  but  these  sections  simply  prescribe  increased 
pay  in  case  of  reenlistment  within  one  month. ^     They  do  not  prevent 

1  The  act  of  Aug.  1,  1894  (28  Stat.,  216),  extends  this  period  to  three  months. 


ENLISTMENT   I  D  2  a.  615 

a  reenlistment  after  the  expiration  of  the  month.  Section  1116,  R. 
S.,  is  based  upon  the  law  of  March  16,  1802  (2  Stat.  135),  in  which 
there  is  no  such  limitation  as  to  time.  Held  that  reenlistment  under 
this  statute  means  a  reentry  into  the  service  and  it  is  prescribed  that 
as  to  such  reentry  the  limitation  as  to  age  shaU  not  apply.  R.  67 ^  41 , 
Oct.,  1888. 

I  D  2  a.  The  act  of  February  27,  1893  (27  Stat.,  486),  (now  obso- 
lete) fixed  a  certain  length  of  service  as  one  of  the  essentials  for  reen- 
listment of  privates  in  the  army.  Held  that  under  this  act  previous 
naval  service  can  not  be  counted  to  make  up  the  length  of  service 
required  to  make  a  private  eligible  for  reenlistment.^  P.  62,  90, 
Oct.  17,  1893. 

I  D  2  b.  A  man  more  than  35  years  of  age  with  previous  service  in 
the  Marine  Corps,  enUsted  in  the  Army.  Held  that  his  Marine  Corps 
service  was  not  service  as  a  soldier  in  the  Army,  that  his  enhstment 
was  not  a  reenlistment,  and  that  it  was  subject  to  the  age  limit  pro- 
vided for  first  enhstments  in  the  Army.^  C.  3758,  Dec.  31,  1897; 
467,  Oct.  10,  1894;  599,  Nov.  5,  1894;  1339,  May  7,  1895;  18391, 
Aug.  7,  1905;  2530,  Aug.  15,  1896. 

I  D  2  c.  The  act  of  March  2,  1899  (30  Stat.  978),  provided  ''that 
the  Hmits  of  age  for  original  enlistments  in  the  Army  shall  be  18  and 
35  3^ears."  Held  that  an  applicant  over  35  years  of  age,  who  had 
served  as  an  officer  of  volunteers  only,  could  not  enlist  under  the 
statute,  as  his  previous  commissioned  service  would  not  count  as 
prior  service  as  an  enlisted  man.     C.  6844i  ^'^9->  1899. 

I  D  3  a.  A  soldier  had  been  sentenced  to  reduction  and  confine- 
ment on  conviction  of  desertion ;  his  sentence  had  been  executed  and 
he  had  thereupon  returned  to  duty  and  served  for  a  considerable 
further  period  in  a  status  of  honor.  Held,  that  the  fact  that  the 
soldier  may  have  been  tried  and  punished  by  court-martial  did  not 
fer  se  render  his  service  unfaithful,  and  each  case  should  be  decided 
on  its  own  merits.  Held,  further,  that  where  it  is  shown  that  a  soldier 
has  served  to  the  end  of  his  enlistment  it  is  assumed  that  he  has 
served  faithfully,  unless  the  contrary  has  been  determined  in  the 
manner  provided  by  law.  P.  36, 184,  Oct.  31,  1889;  48,  219.  July  I4, 
1891;  C.  3036,   Mar.  31,  1897. 

I  D  3  a  (1).  Held,  that  the  remark  ''service  not  honest  and  faith- 
ful" will  not  be  noted  on  a  soldier's  discharge  or  final  statement 
unless  the  remark  expresses  the  approved  fuiding  of  a  board  of 
ofiicers.     C.  3756,  Jan.  8,  1898. 

I  D  3  b.  The  act  of  June  16,  1890  (26  Stat.  157),  provides  that* 
no  soldier  who  has  deserted  at  any  time  during  the  term  of  any  enlist- 
ment shall  be  deemed  to  have  served  such  term  honestly  and  faith- 
fully. Held  that  this  provision  is  limited  in  its  application  to  the 
act  of  June  16,  1890,  and  does  not  operate  necessarily  to  render  service 
' '  not  honest  and  faithful"  for  purposes  of  reenlistment  in  cases  of  deser- 
tion. C.  2004,  Jan.  22,  1896;  2121,  Mar.,  1896;  3530,  Sept.,  1897; 
3794,  June,  1898. 

1  20  Op.  Atty.  Gen.,  684. 

2  (31  Ct.  Cls.,  196)  Jno.  Walton  v.  The  United  States.  A  soldier  honorably  dis- 
charged from  the  Army  who  enlists  in  the  Marine  Corps  within  one  month  is  entitled 
to  the  same  additional  pay  that  he  would  be  entitled  to  if  his  enlistment  had  been  in 
the  Army. 


616  ENLISTMENT  I  D  3  C  (l). 

IDS  c  (1).  A  soldier  was  enlisted  and  immediately  arrested  and 
confined  on  suspicion  of  being  a  deserter.  Later  he  was  released 
from  confinement  and  sent  away  from  the  Army  by  order  of  the  com- 
manding general,  Department  of  the  East.  He  had  no  serivce  with 
troops.  Upon  request  for  his  status  it  was  lield  that  his  service  con- 
stituted an  enlistment  and  was  honest  and  faithful;  that  in  view  of 
the  fact  that  he  was  not  a  deserter  and  enlisted  in  good  faith  and  that 
during  the  time  he  was  in  the  service  he  did  the  only  thing  it  was  possi- 
ble for  him  to  do  in  the  position  in  which  he  was  placed,  he  committed 
no  offense  whatever  after  he  became  a  soldier  and  was  not  confined 
by  reason  of  his  own  f^ult.  His  service  was  honest  and  faithful  not- 
withstanding the  whole  time  was  spent  in  confinement.  C.  1916, 
Dec.  28,1895. 

I  D  3  c  (2).  A  soldier  who  had  been  dishonorably  discharged  reen- 
listed  fraudulently  in  the  Volunteer  Army  and  at  the  expiration  of  his 
term  of  enlistment  was  given  an  honorable  discharge,  with  character 
''excellent"  and  service  '' honest  and  faithful."  He  then  reenlisted 
in  the  Regular  Army,  was  tried  and  convicted  of  fraudulent  enlistment. 
Held,  that  the  enlistment  in  the  Volunteer  Army  should  have  been 
considered  his  ''last  preceding  term  of  enlistment"  within  the  mean- 
ing of  section  2  of  the  act  of  August  1,  1894  (28  Stat.,  216).  C.  58^0, 
Mar.  7, 1899;  1883,  Feb.  23, 1899;  6203,  April  8, 1899. 

I  D  3  c  (3) .  A  soldier  was  convicted  by  the  civil  courts  of  assault 
with  intent  to  rob  and  commit  murder,  and  was  sentenced  to  five 
years'  imprisonment.  Upon  the  representation  of  his  company 
commander,  and  others,  he  was  pardoned  by  the  governor  of  the 
State,  and  after  having  been  discharged  was  returned  to  duty  for  the 
purpose  of  completing  his  enlistment.  After  the  expiration  of  his 
term  of  enlistment  he  was  held  in  the  service  pending  a  decision  as  to 
the  character  of  his  services.  Held  that  there  was  no  legal  objection 
to  discharging  him  on  account  of  the  expiration  of  his  term  of  enlist- 
ment and  to  reenlistin^  him,  on  the  ground  that  the  facts  would  justify 
a  decision  that,  notwithstanding  his  absence  was  occasioned  by  his 
own  misconduct,  his  services,  taken  altogether,  were  honest  and  faithful 
within  the  meaning  of  the  act  of  August  1,  1894  (28  Stat.  216).  G. 
9648,  Jan.  17,1901. 

I  D  3  c  (4) .  A  first  sergeant  was  convicted  of  assault  with  intent 
to  kill  and  sentenced  to  be  reduced  to  the  ranks  and  confined  at 
hard  labor  for  18  months.  This  soldier  had  completed  25  years' 
^service,  and  the  court  gave,  as  its  reason  for  leniency,  "the  long  and 
'faithful  service  of  the  accused,  and  the  previous  mental  strain  under 
which  he  was  laboring  as  shown  by  the  evidence."  He  applied  for 
reenlistment,  and  under  the  provisions  of  paragraph  148,  Army  Regu- 
lations of  1895,  a  board  of  officers  was  convened  and  came  to  the 
conclusion  that  although,  under  a  strict  interpretation  of  the  regula- 
tions, this  soldier's  services  had  not  been  honest  and  faithful,  his 
offense  should  not  debar  him  from  reenlistment.^  Held  that  from  the 
strictest  point  of  view  a  soldier's  services  are  no  longer  honest  and 
faithful  after  he  has  committed  any  offense  no  matter  how  trivial, 
and  that  regarding  his  services  from  that  point  of  view  we  would  have 
to  debar  from  reenhstment  any  soldier  who  has  been  confined  even  for 

^  Army  Regulations  now  provide  that  a  soldier's  service  shall  not  be  characterized 
as  not  honest  and  faithful  except  upon  the  approved  finding  of  a  board  of  oflScers. 


I 


ENLISTMENT  I  D  3  C  (5).  61*7 

a  day  in  the  guardhouse  as  well  as  a  soldier  who  has  been  confined 
for  a  year,  neld,  also,  that  such  an  interpretation  would  be  absurd 
and  has  not  been  attempted;  and  that  it  is  not  practicable  to  draw 
a  line  between  services  honest  and  faithful  and  those  not  honest  and 
faithful  for  all  cases,  since  ''it  is  a  matter  that  must  necessarily  be 
left  indefinite,  each  case  hinging  on  its  own  merits."  C.  2158,  Mar, 
25,  1896;  15119,  June  22,  1903;  2434O,  Jan.  18,  1909.^ 

I  D  3  c  (5) .  A  soldier  was  dishonorably  discharged  with  confinement 
in  a  penitentiaiy  by  sentence  of  a'court-martiul,  and  pending  the  con- 
finement, the  unexecuted  portion  was  remitted,  neld,  that  he  was 
not  eligible  for  enlistment,  iiis  service  during  his  last  term  not  having 
been  honest  and  faithful;  and  that  the  remission  did  not  make  him 
eligible.  C.  1072,  Feb.,  1895;  2496,  Aug.  4, 1896;  5339,  Nov.  17, 1898; 
5675,  Apr.  13, 1899;  6713,  May  7, 1900. 

I  D  3c  (G).  Under  its  constitutional  power  to  raise  and  support 
armies,  Congress  can  designate  the  classes  of  persons  from  whom  they 
are  to  be  raised.  This  is  done  by  the  act  of  August  1,  1894  (28  Stat. 
216),  in  which  it  is  prescribed,  amongst  other  things,  that  no  soldier 
shall  be  again  enlisted  in  the  Army  whose  service  during  his  last 
preceding  term  of  enhstment  has  not  been  honest  and  faithful.  Held, 
that  a  pardon  and  restoration  to  citizenship  ^  will  not  bring  a  soldier 
who  has  been  dishonorably  discharged  for  desertion  within  the  class  of 
persons  eligible  for  enlistment,  as  eligibility  for  enlistment  is  not  a 
right  of  citizensliip.  The  fact  that  the  man  was  a  deserter  can  not  be 
obliterated  by  pardon  and  such  a  man  would,  if  pardoned,  still  be  of 
that  class  from  whom  Congress  has  said  that  enlistments  shall  not  be 
made.2  C.  1765,  Oct.  4,  1895;  1883,  Feb.  25,  1899;  3125,  Apr.  and 
June,  1897;  4513,  July  12, 1898;  4645,  July,  1898;  5280,  Nov.  11, 1898; 
6729,  July  I4,  1899;  10994,  Aug.  7, 1901;  11028,  Aug.  I4, 1901;  15288, 
Sept.  26,  1903;  16323,  May  11,  1904;  16151,  Aug.  18,  1904;  17661, 
Apr.  17,  1908;  26007,  Jan.  3,  1910,  Nov.  28  and  29,  1911,  and  Dec. 
11,1911. 

I  D  3  c  (7) .  In  case  of  a  deserter  who  was  restored  to  duty  without 
trial,  held,  that  his  pardon  does  not  change  the  character  of  his  service 
previous  to  restoration,^  under  the  act  of  August  1,  1894  (28  Stat. 
216).     C.  3794,  Jan.  18,  1898. 

I  D  3  c  (8).  A  soldier  was  dishonorably  discharged  for  other  rea- 
sons than  desertion.  Held,  that  his  pardon  womd  not  operate  to 
make  him  eligible  for  reenlistment,  as  liis  last  preceding  term  of  en- 
listment had  not  been  honest  and  faithful  withm  the  meaning  of  the 
act  of  August  1,  1894  (28  Stat.,  216).^  C.  2769,  Nov.  28, 1896;  11028, 
Oct.  2,  1901;  10994,  Nov.  27  and  Dec.  2,  1901. 

1  D  3  c  (9).  A  soldier  was  dishonorably  discharged  for  desertion 
and  sentenced  to  two  years'  confinement.  Upon  his  applying  for 
restoration  to  duty,  held,  that  the  discharge  had  been  executed  and 
that  the  remission  of  the  unexecuted  portion  of  his  sentence  did  not 

^  The  loss  of  citizenship  under  sees.  1996  and  1998  R,  S.  follows  only  on  conviction 
of  desertion.     (Kurtz  v.  Moffitt,  115  U.  S.,  501.) 

2  See  22  Op.  Atty.  Gen.,  36. 

^  See  22  Op.  Atty.  Gen.,  36,  where  it  is  held  that  while  the  President's  pardon 
restores  a  criminal  to  his  legal  rights  and  fully  relieves  him  of  the  disabilities  legally 
attaching  to  his  conviction,  it  does  not  destroy  the  existing  fact  that  his  service  was 
not  honest  and  faithful. 


618  ENLISTMENT  I  D   3   C  (lO). 

render  him  eligible  for  reenlistment,  as  his  last  term  of  service  had  not 
been  honest  and  faithful.  C.  4668,  July  25, 1898;  1097,  Mar.  6, 1895; 
U66,  June  25,  1898;  4832,  Aug.  23,  1898. 

I  D  3  c  (10).  A  soldier  having  been  found  guilty  by  a  court-martial 
of  having  committed  other  offenses  than  desertion,  including  a  threat 
against  the  life  of  the  surgeon,  was  sentenced  to  dishonorable  discharge, 
forfeiture  of  pay,  and  confinement  at  hard  labor  for  three  years.  He 
later  was  released  upon  the  remission  of  the  unexecuted  portion  of  his 
sentence.  Upon  request  for  reenlistment,  held  that  his  service  under 
the  last  preceding  enlistment  had  not  been  honest  and  faithful  under 
the  act  of  August  1,  1894  (28  Stat.  216).  C.  3170,  July  20,  1897; 
3722,  Dec.  11,  1897;  474S,  Aug.  6, 1898;  4783,  Aug.  21,  1898;  5339, 
Nov.  17,  1898;  5643,  June  7,  1899. 

I  D  3c  (11).  A  dishonorably  discharged  soldier  applied  for  reen- 
listment. Held,  that  he  was  ineligible,  as  his  service  during  the  last 
preceding  term  of  enlistment  was  not  honest  and  faithful  under  the 
act  of  August  1,  1894  (28  Stat.  216).i  C.  1588,  July  25,  1895;  5492, 
Dec.  12,  1898;  5977,  Mar.  4,  1899;  7233,  Oct.  30,  1899;  7644,  Feb.  5, 
1900;  8701,  Aug.  1,  1900;  11570,  Nov.  11,  1901;  11851,  Jan.  4,  1902; 
11914,  Jan.  16,  1902;  12759,  June  10,  1902;  15059,  Aug.  10,  1903; 
15330,  Oct.  14,  1903;  15657,  Jan.  11,  1904;  16637,  July  26,  1904; 
18021,  May  19,  1905;  19934,  June  20,  1906;  20991,  Oct.  11,  1907; 
26007,  Dec.  29,  1909,  and  Mar.  4,  1910. 

I  D  3  c  (12).  A  discharged  general  prisoner  applied  for  reenlist- 
ment. Held,  that  under  the  act  of  August  1,  1894  (28  Stat.  216),  he 
was  ineligible  as  his  service  during  his  last  term  had  not  been  honest 
and  faithful.2     G.  2496,  Aug.  5,  1896. 

I  D  3  c  (13).  A  deserter  was  convicted,  and  that  part  of  his  sentence 
imposing  dishonorable  discharge  was  mitigated.  Held,  that  if  his 
service  continues  honest  and  faithful  to  date  of  discharge  he  may  be 
discharged  with  remark  ''service  honest  and  faithful"  and  no  objec- 
tion known  to  his  reenlistment.  G.  10620,  Mar.  9,  1903;  21536,  May 
17,  1907. 

I  D  3  c  (14).  A  soldier  deserted,  was  apprehended  and  restored  to 
dut;;^  without  trial.  His  company  commander  proposes  to  give  the 
soldier  character  excellent,  but  understands  that  because  of  the  deser- 
tion he  will  be  forced  to  state  on  the  man's  discharge  that  his  service 
has  been  ''not  honest  and  faithful,"  Tield  that  if  the  soldier's  service 
continues  honest  and  faithful  to  the  end  of  his  enlistment  he  may  be 
discharged  with  the  remark  "service  honest  and  faithful"  and  the 
further  remark  "no  objection  known  to  his  reenlistment,"  as  it  is  not 
considered  that  the  policy  of  the  War  Department  should  be  to  place 
an  insuperable  barrier  to  a  man's  reformation  by  holding  that  no 
matter  now  honest  and  faithful  his  latter  service  may  be,  a  fault  once 
committed  can  not  be  atoned  for,  and  that  Congress  nas  held  this  rule 
is  shown  by  section  1352,  R.  S.,  which  authorizes  the  Secretary  of 
War  in  certain  cases  to  remit  in  part  sentences  of  certain  military  con- 
victs and  to  give  them  honorable  restoration  to  duty  in  case  the  same 
is  merited.  G.  15639,  Dec.  19,  1903;  9735,  Jan.  31,  1901;  16838, 
Sept.  1,  1904;  17541,  Feb.  13,  1905;  18214,  June  26,  1905. 

1  See  Power  of  Secretary  of  War  to  decide  this  question  (post). 

2  See  Enlistment  I  D  3  c  (18)  to  (19)  for  statement  of  the  discretionary  authority 
of  the  Secretary  of  War  in  such  cases. 


ENLISTMENT  I  D  3  C  (l5).  619 

ID3c  (15).  A  soldier  was  convicted  of  desertion  but  not  sen- 
tenced to  dishonorable  discharge.  Held,  that  the  desertion  is  not  con- 
clusive against  the  service  being  considered  honest  and  faithful. 
C.  2004,  Jan.,  1896;  2121,  Mar.,  1896;  3530,  Sept.,  1897;  3794, 
Jan.,  1898;  21536,  May  17,  1907. 

I  D  3  c  (16).  A  soldier  deserted,  enlisted  from  desertion,  was  recog- 
nized, tried,  and  convicted  of  desertion,  his  sentence  not  including  dis- 
honorable discharge.  A  board  of  officers,  convened  to  determine  the 
character  to  be  given,  recommended  that  he  be  given  ^'character  good 
subsequent  to  desertion,"  and  ''service  not  honest  and  faithful," 
under  the  belief  that  the  desertion  rec[uired  it.  Held,  that  there  was 
no  legal  objection  to  noting  his  service  as  honest  and  faithful.  C. 
12395,  Apr.  10,  1902;  5569,  Dec.  22,  1898. 

I  D  3  c  (17).  A  soldier,  on  account  of  being  at  the  time  of  his  dis- 
charge under  sentence  of  a  general  court-martial  which  did  not  include 
dishonorable  discharge,  was  discharged  without  honor.  His  company 
commander  requested  authority  for  his  reenlistment.  Held,  that 
there  was  no  objection  to  remitting  the  unexecuted  part  of  his  sen- 
tence with  permission  to  reenlist  hun  for  the  company  of  the  officer 
making  the  request.     C.  16638,  July  29,  1904;  11741,  Jan.  11,  1902. 

I  D  3  c  (18).  It  is  not  practicable  to  prescribe  what  misconduct 
shall  constitute  a  failure  to  render  honest  and  faithful  service  within 
the  meaning  of  the  act  of  Congress  approved  August  1,  1894  (28  Stat. 
216),  regulating  enlistments.  Each  case  should  be  decided  upon  its 
own  merits.  C.  2158,  Mar.  1896.  The  decision  is  a  matter  intrusted 
to  the  discretion  of  the  Secretary  of  War.^  The  restriction  relative  to 
deserters  imposed  upon  him  by  the  proviso  in  sec.  1,  of  the  act  of  June 
16,  1890  (26  Stat.  157),  being  limited  solely  to  the  purposes  of  that 
act,  does  not  apply  to  the  act  of  1894.  G.  2004,  Jan.,  1896;  2121, 
Mar.,  1896;  3530,  Sept.,  1897;  3794,^  Jan.,  1898;^  5569,  Dec,  1898. 

I  D  3  0  (18)  (a).  A  soldier  was  discharged  with  character  ''fair" 
and  service  ''not  honest  and  faithful."  Held,  that  it  is  within  the 
discretion  of  the  Secretary  of  War  to  decide  that  this  man's  service 
was  honest  and  faithful  during  his  last  preceding  term  of  enhstment, 
and  that,  if  he  so  decides,  the  soldier's  reenlistment  may  be  legally 
authorized.     C.  14782,  June  9,  1903;  14913,  July  9,  1903. 

I  D  3  0  (18)  (&).  A  soldier,  after  serving  a  five-year  enlistment, 
reenhsted,  deserted,  and,  while  in  desertion,  reenlisted  again  under 
an  assumed  name;  was  apprehended  and  restored  to  duty  without 
trial,  making  good  the  time  lost,  etc.  He  was  discharged  as  sergeant 
with  "character  excellent  in  every  respect,"  and  upon  application 
for  reenlistment,  Tield,  that  the  Secretary  of  War  may  decide  that  the 
soldier's  last  term  of  service  was  honest  and  faithful,  notwithstanding 
that  during  some  portion  of  it  he  was  a  deserter,  and  that  cases  of 
this  kind  should  be  decided  on  their  merits  as  justice  mav  dictate.^ 
C.  2004,  Jan.  22,  1896;  2025,  Jan.  29,  1896;  2121,  Mar::  11,  1896; 
2384,  June  23,  1896;  3530,  Sept.  21,  1897;  3794,  Jan.  18,  1898;  12004, 
Feb.  1, 1902. 

I  D  3  0  (18)  (c).  Where  a  soldier  has  been  discharged  without 
honor  upon  the  ground  that  his  service  was  not  honest  and  faithful, 
held,  that  while  the  discharge  could  not  be  revoked,  the  Secretary 

1  See  III  Comp.  Dec,  557.  «  ggg  Cy.^  73^  ^^  j) ^  series  1907. 


620  EITLISTMENT  I  D  3  C  (is)  (d) . 

of  War  could  upon  an  application  to  enlist  reconsider  the  question  of 
the  character  of  the  applicant's  service,  and  if  found  to  have  been 
in  fact  honest  and  faithful,  could  authorize  his  enlistment.^  C.  1197, 
Apr.,  1895;  415,  Oct  1,  1894;  H^^,  July,  1896;  3131,  Apr.,  1897; 
9039,  Sept.  28,  1900;  9728,  Feb.  1,  1901;  11741,  Jan.  30, 1902. 

I  D  3  c  (18)  (d).  A  board  of  officers  decided  that  a  soldier's  service 
had  not  been  honest  and  faithful  for  purposes  of  furlough  under  the 
act  of  June  16,  1890  (26  Stat.  157),  and  for  the  purpose  of  deciding 
whether  or  not  he  should  receive  his  retained  pay.  He  was  not  granted 
a  furlough  and  was  discharged  without  honor,  forfeiting  all  pay  and 
allowances.  Upon  request  for  reenlistment  it  was  held  that  the  action 
of  the  board  was  merely  advisory  to  the  Secretary  of  War;  that  he  was 
the  authority  vested  in  such  cases  (directly  or  representing  the  Presi- 
dent) with  power  of  determining  whether  service  has  been  honest  and 
faithful;  that  the  finding  of  the  board  was  not  a  judicial  determina- 
tion of  that  fact;  and  that  the  Secretary  of  War  may  decide  that 
the  man  is  not  debarred  from  reenlistment.  Permission  was  granted 
for  the  soldier  to  reenlist  and  he  was  reenlisted.  C.  1197,  Apr.  4 
and  June  21,  1895;  2731,  Nov.  7,  1896. 

I  D  3  0  (18)  (e).  A  soldier  was  dishonorably  discharged  by  sent- 
ence of  a  court-martial  for  other  offenses  than  desertion  and  upon 
his  applying  for  reenhstment,  held,  that  although  a  dishonorable 
discharge  is  prima  facie  evidence  that  the  service  is  not  honest  and 
faithful,  still  it  is  within  the  discretion  of  the  Secretary  of  War  to 
determine,  for  the  purpose  of  reenlistment,  whether  a  soldier's  previ- 
ous service  has  been  honest  and  faithful,  under  the  provisions  of  the 
act  of  August  1,  1894  (28  Stat.  216).  C.  4667,  July  26,  1898;  44O6, 
June  27,  1898;  4419,  June  20, 1898;  4665,  June  25,  1898;  46OI,  July 
15,  1898;  5339,  Nov.  17,  1898;  5658,  Jan.  11,  1899;  5675,  Mar.  2, 
1899;  6477,  June  22, 1899;  6576,  June  13, 1899;  6727,  July  11,  1899; 
7070,  Sept.  26,  1899;  7254,  Nov.  3,  1899;  7456,  May  I4,  1900;  7576, 
Jan.  12,  1901;  9781,  Feb.  7,  1901;  9789,  Feb.  7,  1901;  9811,  Feb.  11, 
1901;  10208,  Apr.  11,  1901;  12374,  ^V^-  7,  1902;  12741,  June  30, 
1902;  13044,  Dec.  13,  1902;  13196,  Aug.  25,  1902;  16252,  Oct.  4, 
1904;  16540,  July  2,  1904;  16798,  Aug.  30,  1904;  19S23,  May  31, 
1906;  26007,  Jan.  13, 1912. 

I  D  3  c  (18)  (f).  Upon  application  for  reenlistment  of  a  deserter, 
Jield,  that  the  Secretary  of  War  has  power  to  decide,  on  the  facts, 
that  the  prior  service  was  honest  and  faithful,  although  it  included  a 
desertion,  but  that  it  would  have  to  be  a  very  strong  case.  C.  20991, 
Jan.  2,  1907. 

lD3c(18)(g).  A  soldier  shot  and  killed  another  soldier.  He 
was  tried  and  convicted  by  general  court-martial  and  sentenced  to 
serve  five  years  in  the  penitentiary.  The  unexecuted  part  of  his 
sentence  was  remitted.  Upon  request  for  further  relief  by  friends, 
Tield,  that  it  was  within  the  power  of  the  Secretary  of  War  to  decide 
for  the  purpose  of  enlistment  that,  notwithstanding  his  dishonorable 
discharge,  the  last  term  of  service  of  this  soldier  was  honest  and 
faithful,  and  recommended  that  the  Secretary  so  decide.     C.  5675, 

^  But  see  the  act  of  Mar..  3,  1909  (35  Stat.  836),  in  which  Congress  authorized  the 
Secretary  of  War  to  appoint  a  court  of  inquiry  with  jurisdiction  to  pass  on  the  char- 
acter of  men  discharged  without  honor  because  of  the  Brownsville  shooting  affray. 


ENLISTMENT  I   D  3   C  (iS)   (Jl) .  621 

Apr.  13,  1899;  5839,  Nov.  19,  1898;  6^77,  Aug.  3,  1899;  9494, 
Jan.  5,  1901. 

lD3c(18)(^).  A  soldier  was  convicted  of  desertion  and  not 
sentenced  to  dishonorable  discharge.  Held,  that  after  a  board  had 
decided  that  his  service  was  not  honest  and  faithful,  the  Secretary 
had  discretion  to  decide  whether  his  service  was  honest  and  faithful. 
C.  20991,  Apr.  28,  and  May  25,  1910. 

lD3c(18)(i).  A  commissary  sergeant  was  dishonorably  dis- 
charged by  sentence  of  a  general  court-martial  upon  conviction  of 
embezzlement.  Upon  application  for  reenhstment,  held  that  while 
it  is  within  the  discretion  of  the  Secretary  of  War  to  determine,  for 
the  purpose  of  reenlistment,  the  character  of  prior  services,  he  can  not 
properly  determine  such  services  to  be  honest  and  faithful  where,  as 
in  this  case,  it  appears  that  the  applicant  was  guilty  of  the  offense 
for  which  he  was  sentenced  to  dishonorable  discharge,  and  the  offense 
is  one  ordinarily  calhng  for  such  punishment.  C.  127 4^,  June  30, 
1902,  and  Nov.  30,  1909;  10138,  Apr.  8,  1901;  11650,  Nov.  25,  1901; 
15748,  Jan.  11,  1904;  15837,  Jan.  28,  1904;  15961,  Mar.  1,  1904; 
26007,  Nov.  28,  1911. 

I  D  3  c  (18)  (k).  A  discharged  general  prisoner  applied  for  reen- 
listment. Held,  that  notwithstanding  his  dishonorable  discharge 
the  Secretary  of  War  had  discretion  to  decide  whether  or  not,  in  view 
of  all  the  circumstances  of  the  case,  his  service  during  his  last  term  of 
enlistment  was  honest  and  faithful  within  the  meaning  of  the  act  of 
August  1,  1894  (28  Stat.  216).  C.  9714,  Jan.  29,  1901;  15603,  Dec. 
12, 1903;  19017,  Bee.  18, 1905;  26007,  Jan.  3, 1912,  and  Jan.  13, 1912. 

I  D  3  0  (18)  Qc)  [1.]  A  discharged  general  prisoner  applied  for  reen- 
listment. Held,  that  as  his  service  during  his  last  preceding  term  of 
enlistment  was  clearly  not  honest  and  faithful,  the  act  of  August  1, 
1894,  did  not,  in  that  instance,  give  the  Secretary  of  War  the  power 
to  waive  that  objection  to  his  enlistment.^  C.  4^^,  Oct.  1,  1894; 
4466,  June  30, 1898;  4832,  Aug.  31, 1898;  6378,  May  3',  1899;  26007, 
Dec.  11,  1911. ' 

I  D  3  c  (18)  (Z).  A  soldier  deserted,  surrendered,  was  tried  and 
convicted  of  desertion,  and  sentenced  to  dishonorable  discharge 
with  confmement  for  18  months.  A  troop  commander  requested 
that  the  unexecuted  part  of  the  prisoner's  sentence  be  remitted  and 
that  permission  be  granted  for  the  man  to  enlist  in  his  troop.  Held 
that  it  is  within  the  discretion  of  the  Secretary  of  War  to  decide 
whether  the  service  of  this  man  was  honest  and  faithful.  C.  17658, 
Mar.  11,  1905;  16909,  Sept.  21,  1904;  17052,  Oct.  25,  1904;  17661, 
Mar.  13,  1905. 

I  D  3  d  (1).  The  question  of  whether  a  soldier's  services  have  been 
honest  and  faithful  under  the  act  of  March  3,  1899  (30  Stat.  1073), 
which  grants  extra  pay  to  men  who  served  outside  the  United  States 
during  the  Spanish  War,  depends  on  the  manner  of  his  serving  and 
the  character  of  his  services.  Held  that  this  is  without  regard  to  the 
circumstances  of  his  enlistment  or  the  methods  by  which  he  procured 
the  same,  or  his  physical  condition  prior  to  enlistment.  C.  6732, 
July  21,  1899. 

I  D  3  d  (2).  The  act  of  January  12,  1899  (30  Stat.  784),  made 
provision  for  the  granting  of  extra  pay  in  lieu  of  leaves  of  absence  and 


See  Cir.  No.  73,  W.  D.,  Oct.  31,  1907. 


622  ENLISTMENT   I   D  3   d  (s). 

furloughs  to  officers  and  enlisted  men  of  the  United  States  Volunteers 
who  had  served  honestly  and  faithfully  without  the  limits  of  the 
United  States  during  the  Spanish  War.  Similarly,  the  act  of  March 
3,  1899  (30  Stat.  1073),  made  provision  for  extra  pay  to  enlisted  men 
of  the  Regular  Army  who  had  so  served  honestly  and  faithfully. 
Held  that  the  service  of  a  soldier  who,  while  absent  without  leave  and 
under  the  influence  of  liquor,  had  fallen  and  died  from  the  resulting 
concussion  of  his  brain,  should  not  be  considered  as  having  been  hon- 
est and  faithful  within  the  meaning  of  the  two  laws  cited  above. 
C.  7333,  Nov.  29,  1899. 

I  D  3  d  (3).  An  officer  of  Volunteers  was  tried  on  the  charge  of 
embezzlement,  and  sentenced  to  be  dismissed  the  service  and  to  be 
confined  in  a  penitentiary  at  hard  labor  for  one  year.  Upon  applica- 
tion for  two  months'  extra  pay  under  the  provisions  of  the  act  of 
January  12,  1899  (30  Stat.  784),  and  March  3,  1899  (30  Stat.  1073), 
held,  that  he  w^as  not  entitled  to  the  extra  pay  as  the  fact  that  as 
defendant  in  a  suit  brought  against  him  by  the  United  States  for  the 
value  of  bacon  embezzled,  he  was  willing  to  confess  judgment  for  so 
much  of  the  bacon  as  was  not  recovered  by  the  Secret  Service,  furnished 
indubitable  proof  that  his  service  had  not  been  honest  and  faithful. 
C.  10908,  June  6, 1906. 

I  D  3  d  (4).  Section  3,  General  Orders  13,  Headq^uarters  of  the 
Army,  1899,  extencHng  paragraph  148,  Army  Regulations,  to  officers 
of  Volunteers,  operates  m  connection  with  said  paragraph  as  a  regu- 
lation in  aid  of  the  statute,  viz,  the  act  of  January  12,  1899  (30  Stat. 
784),  which  provides  for  extra  pay  to  officers  and  enlisted  men  of 
the  Volunteer  forces  who  served  outside  the  limits  of  the  United 
States  during  the  Spanish  War.  Held,  that  the  above-cited  section 
and  paragraph  provide  a  means  of  determining  whether  the  services 
of  an  officer  or  enlisted  man  have  been  honest  and  faithful;  and  that 
when  under  this  statute  a  board  has  been  appointed  its  approved 
finding  should  be  held  to  be  conclusive,  as  should  also  the  decision  of 
the  commanding  officer,  when  no  board  has  been  appointed  or  applied 
for,  since  discretion  has  been  vested  in  them  by  the  Secretary  oi  War. 
C.  6409,  May  29,  1899;  15928,  Mar.  10,  1904;  16801,  Sept.  7,  1904. 

I  D  3  d  (5).  An  officer  of  Volunteers  was  tried,  convicted,  and  sen- 
tenced to  dismissal  by  an  illegally  constituted  court.  The  sentence 
did  not  operate,  as  it  was  null  and  void.  Upon  application  for  extra 
pay  under  the  act  of  January  12, 1899  (30  Stat.  784),  held,  it  has  never 
been  held  that  the  trial  and  conviction  by  court-martial  of  an  officer 
or  enlisted  man  necessarily  stamps  liis  service  as  not  honest  and 
faitliful;  if  it  were  so  held  no  option  would  remain  as  to  the  quality 
of  the  service.  A  man  once  convicted  by  a  court-martial  would,  under 
such  a  ruling,  suffer  a  continuing  punishment  so  far  as  his  military 
record  was  concerned;  and  the  law  might  then  be  translated  to  mean 
that  no  man  who  had  ever  been  tried  by  court-martial,  and  found 
guilty,  could  be  reenlisted  or  could,  on  discjfiarge,  have  his  service  rated 
as  ''honest  and  faithful."  The  punishment  awarded  by  a  court- 
martial  is  supposed  to  be  sufficient  to  meet  the  offense  committed, 
and  not  to  carry  with  it  a  black  mark  which  amounts  to  a  continuance 
of  punishment  beyond  the  terms  of  the  sentence.  Held,  in  this  par- 
ticular case,  that  the  officer  was  entitled  to  have  his  service  considered 
as  honest  and  faithful.     G.  16801,  Sept.  7,  1904. 


( 


ENLISTMENT  I   D  3   e  (l).  623 

I  D  3  e  (1).  Joint  resolution  of  Congress  of  June  28,  1906  (34  Stat., 
836),  provided  that  in  the  administration  of  the  pension  laws  any 
commissioned  officer  of  the  Army  who  had  received  an  honorable 
discharge  from  a  subsequent  commission  should  be  held  and  consid- 
ered to  have  been  honorably  discharged  from  all  previous  contracts 
of  service  as  a  commissioned  officer.  An  officer  after  having  been 
summarily  dismissed  by  direction  of  the  President  and  having  had 
the  disabihties  resulting  from  such  dismissal  removed  by  the  Presi- 
dent's order,  was  mustered  in  as  a  colonel  of  Volunteer  troops,  and 
later  casliiered  by  sentence  of  a  general  court-martial  from  the  Army. 
Tliis  sentence  was  set  aside  by  War  Department  orders,  which  restored 
him  to  his  command  with  pay  from  date  of  dismissal.  Subsequently 
he  was  brevetted  brigadier  general  of  Volunteers  for  faithful  and 
meritorious  service.  Held  that  his  entire  service  while  holding  the 
last  commission  as  colonel  in  the  Volunteer  service  was  faithful. 
C.  26282,  Feb.  28,  1910. 

II  A.  The  act  of  March  3,  1863  (12  Stat.  731),  for  enroUmg  and 
calling  out  the  national  forces,  and  for  other  purposes,  divided  the 
United  States  into  districts  and  created  a  board  of  enrollment  for 
each  district,  whose  duty  it  was  to  enroll  all  persons  in  that  dis- 
trict who  were  subject  to  military  duty,  and,  after  the  President  had 
assigned  to  a  district  the  number  of  men  to  be  furnished  by  that 
district,  to  draft  that  number  and  50  per  cent  in  addition,  and  make 
an  exact  and  complete  roll  of  the  names  of  the  persons  so  drawn, 
and  the  order  in  which  drawn.  Held,  that  the  enrollment  only 
established  the  liability  of  men  so  enrolled  to  be  called  out,  and  did 
not  put  them  into  the  military  service.  Also  JieTd,  that  neither  the 
draft  nor  the  act  of  reporting  at  the  rendezvous  put  them  into  the  ser- 
vice, but  that  the  acceptance  of  a  drafted  man  by  the  board  of  enroll- 
ment after  his  physical  examination  by  the  surgeon  on  the  board 
operated  to  put  him  in  the  service,  and  that  no  muster  in  was  neces- 
sary. P.  50,  311,  Nov.  23,  1891;  C.  1570,  July  25,  1895;  2033,  Feb. 
4  and  Aug.  4,  1896;  2050,  Feb.  11,  1896;  2041,  May  82,  1896;  2042, 
May  28,  1896;  2085,  June  6,  1896;  2389,  Aug.  1,  1896;  4081,  July 
15,  1898;  20237,  Aug.  15,  1906. 

II  B  1.  The  exemptions  from  the  conscription  in  the  late  Civil 
War  are  specifically  set  forth  in  section  2  of  the  act  of  March  3,  1863 
(12  Stat.  731),  and  section  10  of  the  amendatory  act  of  February  24, 
1864  (13  Stat.  8).  The  exempting  provision  of  the  later  act  in  effect 
repealed  and  superseded  that  of  the  earlier  act,  so  that  a  person 
exempted  and  not  drafted  under  the  act  of  1863  may  have  been 
liable  to  draft  under  that  of  1864.     P.  64,  498,  May,  1894. 

II  B  2.  In  1898  the  question  was  raised  as  to  whether  or  not 
members  of  religious  sects  whose  tenets  forbid  members  to  engage 
in  war  or  armed  conflict  are  exempt  from  service  in  the  Army.  Held, 
that  the  act  of  March  3,  1863  (12  Stat.  731),  is  no  longer  m  force.^ 
C.  4424,  Mar.  22,  1898;  54O6,  Nov.  29,  1898;  5794,  Feb.  3,  1899; 
7905,  Mar.  31,  1900;  20076,  May  15,  1906. 

II  C.  The  act  of  March  3,  1863  (12  Stat.  731),  provided  for  the 
discharge  of  drafted  men  who  were  rejected  by  the  enrollment  board. 

1  But  see  the  act  of  Jan.  21,  1903  (32  Stat.  775),  which  exempts  members  of  any 
well-recognized  religious  sect  or  organization  organized  at  that  time  (Jan.  21, 1903) 
from  service  in  the  militia  or  any  other  armed  or  volunteer  force  under  the  juris- 
diction of  the  United  States. 


624  ENLISTMENT ENROLLMENT. 

Held  that  the  word  ''discharged"  as  there  used  did  not  mean  dis- 
charged from  the  military  service,  but  only  a  release  from  liability 
to  service.     P.  50,  SI4,  Nov.  23,  1891;  C.  1570,  July  25,  1895. 
II  D.  Section    13  of   the   act  of   March   3,   1863   (12   Stat.   733) 

Erovided  that  any  person  drafted  and  notified  to  appear  may,  on  or 
efore  the  day  fixed  for  his  appearance,  furnish  an  acceptable  substi- 
tute to  take  ms  place  in  the  draft,  or  he  may  pay  to  such  person  as  the 
Secretary  of  War  may  authorize  to  receive  it,  such  sum,  not  to  exceed 
$300,  as  the  Secretary  may  determine,  for  the  procuration  of  such 
substitute.  Held,  that  drafted  men  who  were  forced  to  enter  the 
service,  and  substitutes  for  drafted  men  who  entered  the  service  in 
lieu  of  the  men  drafted,  stand  on  the  same  footing  and  should  be 
treated  alike.  If  a  name  not  drawn  is  substituted  on  the  list  of  those 
drawn  for  a  name  that  was  drawn,  then  the  name  substituted  and  the 
person  who  bore  it  are  treated  as  if  that  name  had  been  drawn  instead 
of  the  one  for  which  it  was  substituted.     C.  1570,  July  25,  1895. 

II  E.  The  act  of  March  3,  1863  (12  Stat.  731),  provided  that  a 
drafted  man  who  should  fail  to  report  at  the  rendezvous  without 
furnishing  a  substitute  or  paying  the  commutation  should  be  deemed 
a  deserter.  Held,  that  the  object  of  this  provision  was  to  enforce  the 
appearance  of  those  notified,  and  that  holding  these  men  to  be 
deserters  was  not  in  confhct  with  the  view  that  drafted  men  were  not 
in  the  service  of  the  United  States  until  they  were  accepted  by  the 
board  of  enrollment.  P.  50,  314,  Nov.  23,  1891;  C.  20^1,  May  28, 
1896;  2042,  May  28,  1896. 

II  F.  A  soldier  deserted  from  the  Ninth  Kentucky  Infantry, 
November  10,  1862,  and  while  in  desertion  was  drafted  September 
29,  1864,  and  served  under  the  draft  as  a  private  in  Company  F, 
Thirty-eighth  Indiana  Infantry.  Held,  that  his  being  drafted  and 
his  service  as  a  drafted  man  were  not  affected  by  his  being  a  soldier 
in  desertion  at  the  time  and  that  his  condition  or  status  as  a  soldier 
in  desertion  was  not  affected  by  his  being  drafted  or  by  his  service  as 
a  drafted  man.     C.  2106,  Mar.  21,  1896. 

CROSS    REFERENCE. 

Eligibility  of  dismissed  officer  for See  Office  IV  E  1  c;  2  f . 

Expiration  of,  while  in  confinement See  Discipline  XII  B  3  g  (2). 

Extension  of,  by  sentence See  Discipline  XII  B  4  a;  b. 

In  enemy's  army See  Desertion  I  C  2. 

Insane  soldier See  Insanity  I  A  1. 

Militia See  Militia  V  to  VI. 

Of  retired  soldier See  Retirement  II  F  2. 

Of  prisoner  of  war See  War  I  C  11  c  (6)  (a);  d  (3). 

Pay  before See  Pay  and  allowances  I  A  1  a. 

United  States  Volunteers See  Volunteer  Army  II  C  2, 

ENLISTMENT  CONTRACT. 

Breach  of See  Absence  II  B  8  b. 

Civil  liability  under See  Desertion  V  B  6;  XIV  A  1;  3. 

Civil  obligation  under See  Pay  and  Allowances  I  C  2;  III  C  2  b. 

ENROLLMENT. 

Is  not  mv^ter-in See  Volunteer  Army  II  B  1  b. 

Of  drafted  men See  Desertion  XVI  Dig. 

Enlistment  II  A. 
Of  volunteers,  status See  Volunteer  Army  II  C  1. 


ESCAPE — EXIGENCY.  625 

ESCAPE. 

See  Desertion  I  C  1;  C  2. 

Accused See  Discipline  VIII  H  2;  XVII  A  4  c. 

Conniving  at See  Desertion  HIE;  V  B  16. 

Force  to  prevent See  Discipline  XVII  A  4  g  (4) ;  (6) ;  i. 

From  civil  authorities See  Article  of  War  LIX  K. 

From  military  authorities See  Article  of  War  LXII  D. 

General  prisoner  under  unaccepted  pardon  .  .See  Pardon  II  A. 

Statute  of  limitations  runs  in See  Article  op  War  CIII  G. 

Suffering  to See  Discipune  II  D  6. 

Time  spent  in  must  he  served See  Discipline  XVII  A  4  b ;  c. 

ESCHEAT. 

Of  estate  of  deceased  inmate  of  Soldiers' 

Home ■ See  Soldiers'  Home  I  F. 

Of  private  property See  Army  I  G  3  d  (8)  (6). 

ESTOPPEL. 

Of  claimant See  Claims  I. 

EXAMINATION. 

Bonds See  Bonds  V  E. 

Candidate  for  commission See  Office  III  Alb  (4). 

Date  of  suspension  from  rank See  Rank  V  C  to  D. 

Failure  to  pass See  Office  IV  F. 

For  commission  in  Volunteers See  Militia  XVII  A. 

For  promotion See  Retirement  I  B  6  to  8. 

Of  detailed  staff  officer See  Army  I  G  3  b  (4)  (6);  (c). 

Of  officer See  Discharge  II  A  1;  III  F  2;  XVII  B. 

Discipline  III  E  5  b. 

Promotion  subject  to See  Office  III  B  3  a  (4)  (a);  (6). 

Second See  Army  I  G  3  d  (2)  (a) . 

EXAMINING   BOARD. 

For  promx)tion See  Discharge  XVII  B. 

Retirement  I  B  6  to  8. 

EXCHANGE. 

Disbursing  officer  can  not  take  credit  for See  Public  money  II  E. 

Of  public  money  by  disbursing  officers See  Public  money  VIII. 

EXCHANGE  OF  PUBLIC  PROPERTY. 

Between  departments See  Public  property.     I  B. 

Requires  authority  of  Congress See  Public  property  I  A  4. 

EXECUTOR. 

Execution  of  contract  by See  Contracts  I  B  2;  3. 

EXEMPTION. 

From  being  called  forth See  Militia  IV  A. 

From  service See  Enlistment  II  B  1;  2. 

From  taxes See  Retirement  I  G  2  e. 

Of  private  property  from  attachment See  Private  debts  XI. 

EXIGENCY. 

Under  3709,  Revised  Statutes See  Contracts  VI I  A  to  B  . 

31106°— 12 40 


626  EXPEDITION — EXTKADITION. 

EXPEDITION. 

Military,  defined See  Army  II  K  1  a. 

EXPENDITURES. 
In  excess  of  appropriation See  Contracts  XIII  to  XIV. 

EXPERT. 

Payment  of,  in  connection  with  test  ofcoaL.See  Appropriations  XLVIII. 

Witness See  Discipline  IV  B  3  d  (1);  XI  a  8.    ' 

Witness,  payment  of. See  Discipline  X  I  3. 

EXPLANATION. 

By  member  of  general  court  martial See  Discipline  VI  D. 

By  officer See  Discipline  III  E  7. 

EXTERRITORIALITY. 

Rule  of,  as  to  Army  transport See  Army  I  G  3  b  (2)  (a)  [3]  [g]. 

EXTRADITION. 

I.  FOR  ACT  COMMITTED  IN  DEMANDING  STATE Page  626 

n.  BETWEEN  THE  UNITED  STATES  AND  MEXICO. 

A.  Mexico  the  Demanding  State. 

B.  The  United  States  the  Demanding  State Page  627 

in.  EXTRADITION  OF  DESERTERS.     (See  Desertion.^, 

IV.  OF  SOLDIER  FROM  COUNTRY  UNDER  OUR  MILITARY  CONTROL. 

I.  Fugitives  from  justice  are  not  surrendered  by  one  Government 
to  another  under  extradition  treaties  except  on  account  of  offenses 
committed  within  the  jurisdiction  of  the  Government  demanding  their 
extradition.  So  where  a  United  States  soldier  deserted  and  went  to 
Canada  and  there  forged  a  check  on  the  assistant  treasurer,  New 
York,  which  was  paid,  held  that  he  could  not  be  extradited  for  the 
forgery  thus  committed  outside  the  jurisdiction  of  the  United  States. 
P.  53, 446,  May,  1892. 

II  A.  By  Article  II  of  the  extradition  treaty  with  Mexico  of  Decem- 
ber 11,  1861,  it  is  stipulated  that:  ''In  the  case  of  crimes  committed  in 
the  frontier  States  or  Territories  of  the  two  contracting  parties,  requi- 
sitions may  be  made  through  their  respective  diplomatic  agents,  or 
through  the  chief  civil  authority  of  said  States  or  Territories,  or 
through  such  chief  civil  or  judicial  authority  of  the  districts  or  coun- 
ties bordering  on  the  frontier  as  may  for  this  purpose  be  duly  author- 
ized by  the  said  chief  civil  authority  of  the  said  frontier  States  or  Terri- 
tories, or  when,  from  any  cause,  the  civil  authority  of  such  State  or 
Territory  shall  be  suspended,  through  the  chief  military  officer  in  com- 
mand of  such  State  or  Territory. "  So  where  a  United  States  soldier 
charged  with  having  committed  a  crime  against  the  laws  of  Mexico  was 
held  in  military  custody  within  the  State  of  Texas,  lield  that,  as  a 
requisition  by  the  Mexican  Government  directly  upon  the  military 
commander  in  Texas  would  not  be  authorized,  such  commander  would 
not  be  justified  in  taking  action  upon  an  application  for  such  surrender, 
and  that  any  application  made  through  nim  would  properly  be  trans- 


EXTRADITION — EVIDENCE.  627 

mitted  to  the  Secretary  of  War  to  be  referred  to  the  State  Depart- 
ment.    R.  38,  118,  July,  1876. 

II  B.  The  extradition  treaty  between  the  United  States  and  Mexico 
provides  that  'Svhen  from  any  cause  the  civil  authority"  of  a  frontier 
State,  etc.,  of  either  nation  ''shall  be  suspended, "  the  requisition  shall 
be  made  ''through  the  chief  military  officer  in  command  of  such 
State, "  etc.  A  criminal  having  escaped  into  Mexico  from  Texas  at  a 
time  when  the  civil  authority  of  that  State  was  suspended  as  a  result 
of  the  Civil  War,  a  requisition  for  him  was  issued,  not  by  the  officer 
commandmg  hi  the  State  but  by  a  subordinate  of  inferior  rank.  Held 
that  as  such  action  was  clearly  unauthorized,  the  Mexican  Government 
was  justified  hi  refusmg  to  complv  with  the  requisition,  and  that  a  new 
one  should  accordingly  be  made  by  the  proper  commander.  R.  29,  4, 
June,,  1869. 

IV.  The  arrest  and  delivery  of  a  soldier  serving  in  the  Philippine 
Islands  or  Cuba  to  the  authorities  of  one  of  the  United  States  is  not, 
during  the  military  occupation  of  such  places  by  the  United  States,  a 
matter  of  international  extradition.  If  a  soldier  so  serving  has  been 
indicted  in  one  of  the  States,  the  War  Department  may  legally  direct 
his  surrender  to  such  civil  officer  as  may  be  sent,  supplied  with  the 
proper  papers,  to  receive  him.  C.  5955,  6055,  Mar.  1899;  8425, 
June  15, 1900;  13389,  Nov.  12, 1902. 

CROSS   REFERENCE. 

Of  deserters See  Desertion  IV  A  to  C;  V  F  9. 

EXTRA  DUTY. 

By  post  noncommissioned  staff  officers See  Army  I  E  2  c. 

Noncommissioned  officers See  Army  I  B  2  a  (3) . 

Pay See  Pay  and  allowances  I  C  6  to  7. 

Pay  from  special  appropriations See  Pay  and  allowances  I  C  6  d. 

EXTRAS. 

As  additional  work See  Contracts  VII  J  to  VIII. 

EVIDENCE. 

Before  surveying  officer See  Public  property  I  F  3  to  4. 

Certificates  of  officers See  Militia  XVI  H. 

Criminating See  Discipline  X  H  1;  2;  XI  A  14  b;  b  (1). 

Introduced  after  plea  of  guilty See  Discipline  IX  E  5  a  to  b. 

New,  after  approval  of  sentence See  Discipline  XV  F  8. 

Newly  discovered,  effect  on  a  settled  claim See  Claims  I. 

Not  received  after  finding See  Discipline  IX  E  5  b. 

Of  challenge See  Articles  op  War  XXVI  A. 

Of  desertion See  Desertion  IX  A  to  O;  I  E. 

Of  discharge See  Discharge  XIV  A  1. 

Of  disrespect See  Discipline  II  D  13  a. 

Of  embezzlement See  Articles  of  War  LX  A  4. 

Of  fraud  or  dishonor See  Discipline  VIII  A  2. 

Of  identity See  Discipline  V  B  1;  X  H  2. 

Of  muster  in See  Volunteer  Army  II  D  1. 

Of  rank  of  enlisted  man See  Rank  I  D  to  E. 

Patentee  is  inventor See  Patent  I. 

Pleading  of See  Discipline  IX  E  3. 

Presumption  of  law See  Discipline  IV  E. 

Record  of See  Discipline  XIII  K. 

^w/es  of. See  Discipline  XI  A  to  B. 

Statement  of  accused See  Discipline  V  H  1;  2. 


628  FALSE  ACCUSATION FELON. 

FALSE  ACCUSATION. 

See  Articles  of  War  LXI  B  2. 

FALSE   CERTIFICATE. 

See  Articles  op  War  LXI  B  1. 

FALSE   CLAIM. 

See  Articles  of  War  LX  A  to  F. 

FALSE  REPORT. 

See  Articles  of  War  LXI  B  1. 

FALSE   STATEMENT. 

See  Articles  of  War  LXI  B  1;  LXIID. 
As  evidence See  Discipline  XI  A  18. 

FALSE   SWEARING. 

See  Articles  of  War  LXII  C  9. 
Discipline  VII  F. 

FAMILY   OF   OFFICER. 

Occupation  of  quarters  by See  Pay  and  Allowances  II  A  2  b  (2). 

Transportation  by  sea See  Army  I  G  3  b  (2)  (a)  [3]  [f]. 

FATAL  DEFECT. 

See  Discipline  IX  H  1. 

Absence  of  member See  Discipline  XIV  E  9  a  (2). 

Court  not  sworn See  Articles  of  War  LXXXIV  B. 

List  of. See  Discipline  XV  E  to  F. 

Proceedings  of  examining  board See  Retirement  I  B  6  e  (1). 

Right  to  challenge  not  extended See  Discipline  XIII  C  2  a. 

Variance  in  name See  Discipline  XIV  E  9  a  (3). 

FATIGUE. 

As  a  punishment See  Discipline  XVII  A  1. 

FEDERAL   OFFICE. 
Retired  officers  eligible  for See  Retirement  I  G  3  a  to  b. 

FEDERAL  TROOPS. 

See  Army. 

Militia  II  to  III. 

FEES. 

Of  witness  before  general  court-martial See  Discipline  X  I  to  K. 

FELON. 

Enlistment  of See  Enlistment  I A  9  c  (2);  D  3  c  (4);  (5); 

(18)  (g). 

Fraudulent  enlistment  of See  Enlistment  I  A  9  f  (5). 

Reenlistment  of. See  Enlistment  I  D  3  c  (3). 


FELONY — FLAG.  629 

FELONY. 

Stealing  hay  from  military  reservation See  Command  V  A  3  g. 

FENCES. 

Claim  for  damage  to,  by  soldier See  Claims  II;  IV. 

FILIPINO. 

See  Officer's  servant  II  to  III. 
Is  not  citizen  of  United  States. See  Desertion  XIV  B  1. 

FINAL   STATEMENT. 

Not  part  of  discharge See  Discharge,  XIV  A  1. 

FINDING. 

See  Discipline,  XII  A  to  B. 

Disclosing  of. See  Articles  op  War,  LXXXIV  C  4. 

Examining  Board See  Retirement,  I  B  6  to  7. 

Retiring  board See  Retirement,  I  B  2  to  3. 

FINE. 

See  Pay  and  allowances,  III  D  to  E. 

As  punishTnent See  Discipline,  XII  B  3  e  (4), 

Disposition  of. See  Public  money,  I  M. 

FINGER   PRINTS. 

Of  accused See  Discipline,  V  B  1;  X  H  2. 

Of  interned  prisoners  improper See  Army,  II  K  1  h  (1), 

FISHING. 

By  civilians  on  military  reservation See  Command,  V  A  3  f . 

FISHING   PASS. 

See  Absence,  I  C  3. 

FLAG. 

I.  DESCRIBED „ Page  629 

n.  TRADE-MARK  CAN  NOT  COMPRISE. 

in.  A  STATE  CAN  PROTECT  THE  FLAG Page  630 

IV.  INSULT  TO  FLAG. 

V.  ACCEPTANCE  OF  FLAG. 

I.  The  flag  of  the  United  States  is  described  in  the  Revised  Statutes 
(sees.  1791-1792),  the  flags  of  foreign  nations  are  recognized  under 
international  law  and  the  Army  Regulations,  and  the  flag  of  the 
Geneva  Convention  is  recognized  by  law  and  regulations. 

Beyond  this,  if  we  except  the  flag  of  truce  in  time  of  war  and  cer- 
tain flags  or  guidons  used  to  distinguish  military  persons  and  units, 
this  office  has  no  knowledge  of  any  flag  being  omciaUy  recognized 
either  by  the  War  Department  or  the  United  States  in  the  ordinary 
sense  in  which  the  word ''  recognition ' '  is  used.    G.  22135,  Sept.  26, 1907. 

II.  Held,  that  under  the  act  of  February  20,  1905  (33  Stat.  725),  a 
trade-mark  can  not  be  registered  which  consists  of  or  comprises  the 


630  FLOATABLE   STREAMS FORFEITURE. 

fla^,  coat  of  arms,  or  other  insignia  of  the  United  States,  or  any  simu- 
lation thereof,  or  of  any  State  or  municipality,  or  of  any  foreign  nation. 
a  499,  May  6,  1905,  and  Sept.  28,  1906. 

III.  Held,  that  it  is  within  the  authority  of  a  State  to  prohibit  the 
flag  from  being  put  to  improper  uses.^  G.  499,  Mar.  18,  1907,  and 
Apr.  12,  1907. 

IV.  Held,  that  if  the  flag  of  the  United  States  is  insulted  in  such  a 
manner  as  to  constitute  a  menace  to  the  public  peace,  the  law  of  the 
State  should  be  invoked  to  provide  an  adequate  remedy.  G.  599, 
Pel.  21,  1906. 

V.  Held,  that  the  Executive  Department  has  no  authority  in  the 
absence  of  legislation  to  accept  any  flag  on  behalf  of  the  United  States.^ 
G.  10004,  Mar.  19,  1901.  Held,  that  recaptured  flags  can  be  returned 
to  a  regiment  if  stfll  in  the  service.     P.  118,  Peb.  21,  1893. 

CROSS    REFERENCES. 

Of  another  country See  Alien  I. 

Of  truce See  War  I  C  9. 

Recapture  of. See  War  I  C  6  c  (3)  (e)  [2]. 

FLOATABLE  STREAMS. 
Navigation  of. See  Navigable  waters  I  A  2. 

FORAGE. 

Sale  to  retired  officers See  Army  I  G  3  b  (2)  (c). 

Claim  for  furnishing See  Claims  XII  L. 

FOREIGN  GOVERNMENTS. 

Employment  of  United  States  civilian  em- 
ployee by See  Civilian  employees  VI  A. 

Permission  to  pass  throughforeign  territory.  .See  Army  I  G  3  b  (2)  (a)  [2]  [a];  [6]. 
Remuneration  from See  Army  I  C  3. 

FORFEITURE. 

Because  of  absence See  Absence  II  B  8  a. 

Because  of  contempt  of  court See  Articles  op  War,  LXXXVI  B  1  a. 

By  civilian  employees See  Appropriations  LXVI. 

By  sentence '. See  Discipline  XII  B  3  e  (1). 

Can  not  be  implied See  Pay  and  allowances  II  A3a(l);  III 

A  2  a. 

Certificate  of  merit-pay See  Insignia  of  merit  II  K. 

Civilian  employee^ s  pay See  Articles  op  War  LXIII  E. 

Deposited  money See  Pay  and  allowances  I  C  7  a  to  b. 

Deserter's  pay  and  allowances See  Desertion  XIV  A  to  F. 

Diversion  of ,  improper See  Army  I  B  2  b  (2)  (6). 

In  connection  with  stoppage  under  fifty- 
fourth  article  of  war See  Articles  op  War  LIV  D  2. 

Of  pay  and  allowances See  Pay  and  allowances  II  A  3  a  (3)  (a); 

III  C  to  D. 

Of  private  property See  Discipline  XVII  A  4  g  (5), 

Several  penalties  of. See  Articles  op  War  LXXXIII  C;  C  1  a. 

^  See  Halter  -y.  Nebraska,  where  it  was  held  that  a  State  statute  punishing  the  desecra- 
tion of  the  flag  of  the  United  States  and  prohibiting  the  sale  of  articles  upon  which 
there  is  a  representation  of  the  flag  for  aavertising  purposes  is  not  unconstitutional. 
(205  U.  S.,  34.)  Several  States  have  passed  laws  having  for  their  object  the  enforce- 
ment of  respect  for  the  flag. 

2  The  Federal  Government  keeps  flags  that  were  captured  from  enemies,  and  restores 
when  possible  to  regiments  or  States  flags  that  have  been  recaptured  from  enemies. 
(See  H.  Ex.  Doc.  No.  163,  50th  Cong.,  Istsess.;  War  Dept.,  Cong.  Doc.  2558.) 


J 


FOKEIGN   SERVICE — FREIGHT.  631 

FOREIGN  SERVICE. 

Counts  double  for  retirement  of  soldiers See  Retirement  II  A  4  b  to  d. 

Of  militia See  Militia  I  E. 

War  I  C  8  c  (1)  (6). 

FORGERY. 

See  Articles  op  War  LXII  B;  D. 

By  general  prisoner See  Pardon  II  a. 

By  soldier See  Articles  op  War  LX  B  1. 

Extradition /or See  Extradition  I, 

Responsibility  for  forged  checks See  Public  money  II  B  2. 

FORTIFICATIONS. 

Avpropriations  for See  Appropriations  XXX;  XXXVII. 

Blank  forms See  Appropriations  XXXVI  D. 

Photogravhing See  War  I  C  6  g  (1). 

Responsibility  for See  Army  I  B  10. 

FRANCHISE. 

Exercise  right  of,  by  deserter See  Desertion  XIV  B. 

Issuance  of,  war See  Army  I  B  2  d  (1). 

FRAUD. 

See  Articles  op  War.  C  A. 

In  claims See  Army  I  B  1  b. 

Muster  in See  Volunteer  Army  II  D  to  F. 

Discharge  V  F  2. 

Muster  out See  Volunteer  Army  IV  F  to  H. 

Post  exchange  steward See  Government  Agencies  II  J  8. 

Rejection  of  bid  for See  Contracts  VI  J  4. 

FRAUDUIENT  CLAIM. 

See  Articles  of  War  LX  A  to  F. 
Discipline  II  Alb. 

FRAUDUIENT  DISCHARGE. 

May  be  revoked See  Discharge  XV  A,  Al;  2;  XVI A  to  B. 

FRAUDUIENT  ENIISTMENT. 

See  Enlistment  I  A  9  to  10. 

Certificate  of  merit  during See  Insignia  op  Merit  II  D, 

Continuous  service See  Pay  and  Allowances  I  0  5  b  (1). 

Discharge  without  honor  for See  Discharge  II  B  1. 

Elements  of. See  Articles  of  War  E  1. 

Discipline  XV  E  11. 

Forfeiture  of  clothing  allowances  for See  Pay  and  Allowances  III  C  2  a. 

Policy  in  disposition  under  fiftieth  article 

of  war See  Desertion  VI  B;  XII  A  1. 

Service— for  retirement See  Retirement  II  Ala. 

Statute  of  limitations  on See  Articles  op  War  ClII  H. 

Trial  for See  Discipline  111  E  3  a. 

Under  fiftieth  article  of  war See  Articles  of  War  L  A. 

FREIGHT. 

Of  Militia See  Militia  VII  A  to  F. 


682  FUEL — GENEEAL  COURT-MAKTIAL. 

FUEL. 

Heat  and  light See  Pay  and  Allowances  II  A  1  to  2. 

To  Militia See  Militia  VI  B  2  i. 

FURLOUGH. 

See  Absence. 

Arrest  while  on See  Articles  op  War  LIX  I  2. 

Cadet See  Army  I  D  2  a. 

Candidate  for  commission See  Office  III  A  1  b  (3)  (a). 

Indefinite See  Absence  I  C  4  g. 

Medical  attendance See  Claims  VIII. 

Not  actual  service See  Retirement  II  A  4  b  (1). 

Not  line  of  duty  status See  Gratuity  I  A  4  a  (2) . 

FURNITURE. 

Appropriation  for See  Appropriation  LI. 

Militia See  Militia  XVI  I  4. 

Retired  officer See  Retirement  I  K  5. 

GAMBLING. 

By  officer See  Articles  op  War  LXI  B  8. 

By  officers  or  soldiers See  Articles  op  War  LXII  D. 

GARBAGE. 

Sale  of. See  Public  property  I  M. 

GARNISHMENT. 

Of  public  money See  Public  money  II  C  to  D. 

GARRISON   COURT-MARTIAL. 

See  Articles  op  War  LXXXII  A  to  C  2: 
LXXXIII  A  to  C  2. 
Discipline  XVI  E  5. 

Review  of  proceedings See  Articles  op  War  CIV  C  4. 

Discipline  XVI  B  1. 

GAS   WELL. 

On  military  reservation See  Public  property  I  A  2. 

GENERAL  AVERAGE   CONTRIBUTION. 

See  Claims  VI  to  VII. 

GENERAL   COURT-MARTIAL. 

See  Discipline  VI  to  XIV. 

Authority  of. See  Articles  op  War  XCI  G. 

Contempt  of. See  Articles  op  War  LXXXVI  A  to  B 

lb. 

Copy  of  record  as  evidence See  Discipline  XI A 17  a  (2)  (a)  [1]  [c]. 

Copy  of  record  to  accused See  Articles  op  War  CXI  V  A. 

Irregularities  in  proceedings  of. See  Articles  op  War  LXXIII  A  1. 

Jurisdiction  of. See  Discipline  III  5  b. 

Jurisdiction  over  civilians See  Articles  of  War  LXI II  A  to  E. 

No  jurisdiction  over  private  debts See  Pay  and  allowances  III  D  2. 

Power  to  sentence See  Pay  and  allowances  III  C  1  a  (1)  (a). 

Quorum See  Articles  op  War  LXXV  B  1  to  4. 

Referring  cases  to See  Command  V  A  4. 


GENERAL  HOSPITALS — GOOD  CONDUCT.  638 

GENERAL  HOSPITALS. 

See  Army  I  G  3  d  (7)  to  (8). 

GENERAL  MESS. 

Fund  of. See  Government  Agencies  X. 

GENERAL  OFFICER. 

See  Army. 
Command. 
War. 
Right  to  Aids See  Army  I  B  2  f. 

GENERAL  PRISONER. 

Apprehension  of. See  Desertion  V  B  17. 

Can  not  he  restored  to  duty See  Army  I  B  2  a  (4), 

Civilian  clothing  for See  Discipline  XVII  A  4  g  (7) . 

Clothing  issues See  Army  I  B  7  a. 

Pay  and  allowances  II  A  3  a  (4)  (e) 

[1]. 

Confinement  in  penitentiary See  Desertion  X  C  1. 

Dependent  parent See  Discharge  VI  C  2. 

Disobedience  of  orders  by See  Articles  of  War  LXII  D. 

Forgery  by See  Pardon  II  A. 

Fraudulent  enlistment  of. See  Enlistment  I  A  9  f  (3) . 

Insane See  Insanity  I  A  2. 

Jurisdiction  over See  Discipline  VIII  G  2  b ;  I  Id. 

Private  property  of. See  Discipline  XVII  A  4  g  (5). 

Private  property  of,  destroyed See  Claims  IX. 

Redemption  of. See  Discharge  II  B  2  a. 

Reenlistment  of,  after  release See  Enlistment  I  D  3  c  (12). 

Trial  of. See  Discipline  1 1  D  20 . 

Witness  before  civil  courts See  Civil  authority  I  B  3  a. 

GENERAL  STAFF. 

Command  by See  Army  I  G  3  a  (1)  (a). 

Command  I  A  1  a. 
Details  to See  Army  I  B  2  b  (1)  (a). 

GENEVA  CONVENTION. 
Purpose  of. See  Red  Cross  I  B. 

GIFT. 

From  allies See  War  I  C  6  d  (1). 

Money  to  United  States See  Appropriations  VII. 

Secretary  of  War  can  not  accept  land  or  inter-  See  Public  property  II  A. 

est  in  land  for  United  States. 
Secretary  of  War  may  accept  personal  prop-  See  Public  property  I  G. 

ertyfor  United  States. 

GIVING  INTELLIGENCE  TO  ENEMY. 

See  Articles  op  War  XXXXVI  A;  B. 

GOOD  CONDUCT. 

Of  prisoners See  Discipline  XVII  A  4  f . 


634  GOVEKNMENT  AGENCIES:   SYNOPSIS. 

GOVERNMENT  AGENCIES. ' 

I.  GOVERNMENT  AGENCIES  AND  INSTRUMENTALITIES  IN  GENERAL. 

A.  Government  Agencies  May  be  Created  by  Either  Legislative  or 

Executive  Authority Page  636 

B.  Stoppage  in  Favor  of  Government  Agencies. 

C.  Debt  Due  Government  Agency  Collectible  prom  Pay  Where  Pay 

is  Received  at  Pay  Table  by  Company  Commander  or  Subse- 
quently Deposited  with  Him Page  637 

D.  Loss  op  Funds  of  Government  Agency. 

1.  Custodian's  responsibility  greater  than  that  of  gratuitous  bailee;  he 

is  official  performing  a  duty.     Illustrations Page  638 

2.  Post  not  under  command  of  division  commander Page  640 

3.  No  appeal  from  decision  of  department  commander,  but  Secretary 

of  War  may  reexamine  the  case  to  determine  whether  a  stoppage 
may  be  made. 

4.  Procedure  where  deceased  officer  indebted  to  company  funds  leaves 

unindorsed  check  for  amount  of  indebtedness. 

E.  Government  Agency  May  Sell  Supplies  to  and  Render  Service  for 

THE  Government. 

F.  Disposition   op   Funds    op   Government   Agency   Where    Agency 

Ceases  to  Exist Page  641 

G.  Garnishment,  Attachment,  etc.,  of  Public  Property.     (See  Public 

money.) 
H.  Taxation  op  Government  Agency.     (See  Tax.) 
n.  POST  EXCHANGE. 

A.  Characteristics  and  Purposes  of  Post  Exchanges. 

1.  Government  agency  and  recognized  by  acts  of  Congress. . .  Page  64^ 

2.  Not  a  corporation,  but  a  cooperative  store Page  643 

B.  Officer  in  Charge. 

1.  Allowance  for  services. 

2.  Represents  post  exchange  in  litigation. 

3.  If  litigation  necessary,  may  properly  request  to  be  furnished  with 

counsel  at  Government  expense. 

4.  Not  personally  responsible  to  creditor  of  post  exchange  merely 

because  exchange  regulations  make  him  responsible  for  manage- 
ment of  exchange. 

5.  Responsible  for  a  shortage  in  exchange  funds,  notwithstanding  his 

acquittal  of  charge  of  embezzling  such  funds Page  644 

C.  Limitations  as  to  Business. 

1.  Can  not  accept  deposits  from  soldiers. 

2.  Can  not  collect  a  tax  on  dogs  in  a  post. 

D.  Credits  by  Post  Exchange. 

1.  To  officers. 

2.  To  enlisted  men. 

a.  Credits  in  excess  of  amount  authorized  by  regulations. 

E.  Liability  for  Debts  of  Post  Exchange. 

1.  Officers  stationed  at  the  post  not  liable  for  debts  of  post  exchange. 

F.  Post  Exchange  Council,  as  well  as  Officer  in  Charge,  May  be 

Held  Responsible  for  Losses, 

G.  Post  Exchange  Buildings Page  645 

^Prepared  by  Maj,  H.  M.  Morrow,  judge  advocate,  assistant  to  Judge  Advocate 
General. 


GOVEENMENT  AGENCIES:   SYNOPSIS.  635 

n.  POST  EXCHANGE— ContiDued. 

H.  Appropriations  for  Post  Exchange.     (See  Appropriation  XXIX.) 
I.  Membership  op  Post  Exchange. 

1.  Organizations  comprising  membership  of  post  exchange  construed 

as  continuing  organizations  regardless  of  change  in  personnel. 

2.  In  case  of  dispute  as  to  terms  of  admission  of  a  new  organization  to 

an  exchange  the  decision  of  department  commander  final,  except 
in  case  of  fraud Page  646 

3.  Rule  of  distribution  where  membership  of  organization  is  reduced 

after  it  has  bought  into  an  exchange. 

4.  Membership  in  the  post  exchange  not  obligatory  on  units  forming 

garrison Page  647 

5.  What  constitutes  an  organization  or  detachment  competent  to 

become  a  member  of  a  post  exchange. 
J.  Miscellaneous. 

1.  Several  independent  exchanges  or  one  exchange  with   several 

branches  may  be  established  at  a  post. 

2.  As  post  exchange  is  Government  instrumentality  it  may  be  ordered 

to  readjust  accounts  with  a  paymaster. 

3.  Under  paragraph  318,  Army  Regulations,  1910,  as  to  proceedings  of 

exchange  council  minority  of  council  may  make  report,  but  only 
the  proceedings  of  majority  should  be  acted  on  by  division 
commander. 

4.  Regimental  adjutant  may  receipt  to  receiver  of  a  bank  for  divi- 

dends on  deposits  the  regimental  exchange  officer  having  died. 

5.  Government  property  may  be  transferred  by  a  Government  bureau 

to  the  post  exchange. 

6.  Telegrams  on  post-exchange  business. 

7.  In  case  of  error  on  final  statement  transferred  to  a  post  exchange  and 

final  statement  is  paid  by  paymaster,  the  soldier  and  not  the 
post  exchange  is  the  debtor  to  whom  the  paymaster  should  look 
for  reimbursement  for  his  overpayment Page  648 

8.  Fraud  by  the  steward  of  a  post  exchange  is  a  military  offense, 

9.  Fuel  and  lights  for  a  canteen  are  a  proper  charge  against  the  Army 

appropriation  for  fuel  and  lights. 

10.  Paragraph  1060,  Army  Regulations,  1910,  as  to  issue  of  fuel  where 

post  exchange  runs  a  laundry. 

11.  A  contribution  may  be  made  from  the  post  exchange  to  support  a 

"volunteer  band" Page  649 

12.  "Volunteer  band"  not  entitled  to  share  in  net  profits. 
m.  COMPANY  FUND. 

A.  Debts  Due  the  Company  Fund. 

1.  A  debt  from  an  officer  to  a  company  on  account  of  boarding  with 

the  company  is  a  debt  to  the  company  fund. 

2.  Where  a  company  fund  receives  a  percentage  of  the  profits  on  work 

done  by  a  private  laundry,  a  debt  due  the  laundry  from  a  member 
of  the  company  is  not  a  debt  to  the  company  fund. 

3.  No  legal  authority  for  loaning  a  portion  of  company  fund  to  enlisted 

men  to  enable  them  to  represent  the  company  at  an  athletic  meet. 

B.  Expenditures  From  the  Company  Fund. 

1.  Paragraph  331,  Army  Regulations,  1910,  as  to  disbursing  the  com- 

pany fund  "solely  for  the  benefit  of  the  company." 

2.  A  company  exchange  not  being  authorized  by  law,  the  company 

fund  is  not  liable  for  its  debts Page  660 


636  GOVERNMENT  AGENCIES  I  A. 

in.  COMPANY  FUND— Continued. 

B.  Expenditures  From  the  Company  Fund — Continued. 

3.  The  expense  of  a  bond  to  secure  a  bank  against  loss  on  account  of 
a  lost  certificate  of  deposit  in  favor  of  the  company  may  be  paid 
from  the  company  fund. 
IV.  SOLDIER  CAN  NOT  BE  BEQUIRED  TO  PAY  FOR  THE  LAUNDERING 
OF  HIS  CLOTHES  BY  AN  EXCHANGE  OR  COMPANY  LAUNDRY 
UNLESS  HIS  CLOTHES  WERE  ACTUALLY  LAUNDERED  THERE. 
V.  LAW  OF  STATE  OR  TERRITORY  CAN  NOT  PROHIBIT  SOLDIER 
CARRYING  HIS  ARMS. 

VI.  PRACTICE  BY  MEDICAL  OFFICERS Page651 

Vn.  EFFECT  OF  WAR  DEPARTMENT  ORDER  AUTHORIZING  COMPANY 

BARBER  SHOPS,  BILLIARD  AND  POOL  TABLES. 
Vm.  BAND  FUND  OF  "VOLUNTEER  BAND"  TO  BE  ACCOUNTED  FOR 
LIKE  A  REGIMENTAL  FUND. 
IX.  RESPONSIBILITY   OF    QUARTERMASTER   FOR   EFFECTS    OF   DE- 
CEASED OFFICER  RECEIVED  FOR  SHIPMENT. 
X.  EXPENDITURE    FROM    FUNDS  OF    GENERAL    MESS  SHOULD  BE 

SOLELY  FOR  THE  BENEFIT  OF  THE  MEMBERS  OF  THE  MESS. 
XI.  THE  POWERS  OF  A  GOVERNMENT  AGENCY  AS  ESTABLISHED  BY 
CONGRESS  CAN  NOT  BE  INTERFERED  WITH  BY  THE  EXECUTIVE 
OR  BY  ANOTHER  GOVERNMENT  AGENCY. 

I  A.  Congress  may  establish  such  agencies  or  instrumentalities 
in  connection  with  the  military  establishment  as  it  may  deem  neces- 
sary to  the  efficiency  or  comfort  of  the  troops  or  desirable  for  their 
weHare.  A  similar  right  to  establish  Government  agencies  and 
instrumentalities  and  to  prescribe  suitable  regulations  for  their  gov- 
ernment and  administration  has  been  resorted  to  by  the  Secretary  of 
War  whenever  the  necessities  of  the  military  establishment  have  war- 
«  ranted  such  exercise  of  executive  power,  and  his  action  in  establish- 
ing them  and  prescribing  rules  for  their  government  and  control  has 
been  recognized  by  Congress  in  making  appropriations  for  their  sup- 
port and  has  been  recognized  by  the  courts  and  by  other  executive 
departments  of  the  Government.  The  practice  of  establishing  such 
Government  agencies  and  instrumentalities  has  existed  for  more  than 
a  century.  Held,  therefore,  that  it  is  within  the  authority  of  the 
Secretary  of  War  to  authorize  the  establishment  of  a  laundry  at  a 
military  post  and  to  prescribe  regulations  for  its  administration  and 
control.!     (J  18224,  Sept.  8, 1906. 

I  B.  When  the  post  exchange  (then  called  canteen)  was  of  a  pri- 
vate character,  it  was  held  that  stoppages  of  pay  could  not  be  made 
to  reimburse  losses  of  canteen  funds;  and  at  that  time  the  Treasury 
Department  also  held  that  canteens  were  taxable  by  the  Government. 
Subsequently  (in  1897)  the  Treasury  Department  held  that  post 
exchanges  as  then  organized  under  the  orders  of  the  War  Department 

*  Pursuant  to  the  above  recommendation,  G.  0.  159,  W.  D.,  Sept.  15,  1906  (par. 
351  A.  R.  1910),  established  post  laundries  and  made  provision  for  the  collection  of 
indebtedness  due  them  from  enlisted  men.  See  also  par.  1,  G.  O.  253,  W.  D.,  Dec. 
27,  1907,  and  the  current  acts  of  appror)riation  for  the  support  of  the  Army  relative 
to  competition  of  post  laundries  with  jjrivate  establishments  for  doing  laundry  work. 
Current  acts  of  appropriation  now  provide  "for  the  construction,  operation,  and  main- 
tenance of  laundries  m  Army  posts  in  the  United  States  and  in  its  island  possessions." 


I 


GOVERNMENT  AGENCIES  I  C.  637 

were  Government  instrumentalities  or  agencies  and  were  therefore 
not  taxable  under  the  internal  revenue  laws.^  Now  the  funds  of  the 
])ost  exchange  are  moneys  used  in  carrying  on  this  public  agency, 
and  tlie  Government  has  a  right  to  protect  its  instrumentalities — the 
establishments  tlu-ough  which  it  carries  on  public  business.  Heldy 
therefore,  that  stoppages  against  the  pay  of  ofricers  and  enlisted  men, 
whether  on  the  active  or  retired  list,  may  lej^ally  be  made  to  reim- 
burse the  post-exchange  fund  on  account  oi  losses  for  wliich  such 
officei-s  ana  enlisted  men  are  responsible,  and  in  case  of  a  deceased 
officer  or  soldier  the  amount  due  the  post  exchange  may  be  deducted 
from  tlie  pay  and  allowances  due  the  estate  of  the  deceased.  G.  317 ly 
June  7,  1897;  7186,  Oct  19,  1899;  12195,  Mar.  12,  1902;  13104,  Aug. 
14,  1902;  15714,  Jan.  18,  1904;  19112,  Jan.  2,  1907;  26161,  Apr.  3, 
1911.  As  company,  hospital,  and  regimental  funds  are  also  Govern- 
ment agencies,  the  pay  of  officers  and  soldiers  may  be  stopped  for 
indebtedness  due  them.  C.  3171,  June  7,  1897;  7186,  Oct.  19,  1899. 
As  the  pay  of  an  officer  or  soldier  or  employee  may  be  stopped  to 
pay  an  mdebtedness  due  the  United  States,  it  may  with  equal  legality 
and  propriety  be  stopped  to  pay  an  indebtedness  due  to  a  Govern- 
ment agency  or  instrumentality  which  has  been  established  by  proper 
legislative  or  executive  authority.     0.  18224,  Sept.  8,  1906. 

I  C.  The  pay  of  an  enhsted  man  wliich  has  been  turned  over  to  his 
company  commander  at  the  payment  of  the  company  because  the 
soldier  was  absent  from  the  pay  table  continues  to  be  Government 
funds  until  it  reaches  the  hands  of  the  soldier  unless  some  act  of  the 
soldier,  such,  for  instance,  as  a  request  to  the  company  commander 
in  respect  to  the  disposition  of  the  whole  or  a  part  of  his  pay,  operates 
as  a  technical  reduction  to  possession.  In  the  event  of  such  an  act 
such  portion  as  the  soldier  should  request  the  company  commander 
to  pay  to  creditors  would  be  regarded  as  having  been  reduced  to  pos- 
session and  might  be  paid  in  accordance  with  the  soldier's  request, 
and  if  the  soldier  has  deserted  the  balance  should  be  treated  as  the 
effects  of  a  deserter,  provided  the  soldier's  request  was  that  the 
balance  be  held  as  a  deposit  subject  to  the  soldier's  order.  But  where 
there  is  a  well-established  practice  to  collect  at  the  pay  table  sums 
due  to  the  post  exchange,  the  company  fund  and  other  Government 
instrumentahties,  such  collections  being  made  at  the  instant  of 
payment  when  the  soldier  is  present  to  receive  his  pay,  a  correspond- 
mg  deduction  should  be  made  at  the  same  instant  in  a  case  where 
the  money  due  the  soldier  is  handed  to  his  company  commander. 
Such  a  well-estabhshed  custom  may  be  regarded  as  a  request  by  the 
soldier  to  pay  the  dues  estabhshed  by  custom.  Therefore  helctihsit 
the  total  amount  due  a  post  exchange,  company  fund  or  other  Gov- 
ernment instrumentality,  and,  according  to  the  established  custom 
payable  to  those  instrumentalities  on  the  receipt  of  pay  from  the 
paymaster,  should  be  considered  by  reason  of  such  custom  as  tech- 
nically reduced  to  possession,  and  paid  to  the  creditors  in  conformity 
to  sucn  custom,  ana  the  balance,  not  having  been  reduced  to  possession 
either  actually  or  technically,  should  be  considered  as  retaining  the 
character  of  public  funds  and  returned  to  the  paymaster.  C.  12227, 
Feb.  12,  1907,  and  Oct.  12,  1909. 

^  The  same  conclusion  was  reached  in  Dugan  v.  United  States  (34  Ct.  Cls.,  458). 


638  GOVERNMENT  AGENCIES  I  D  1. 

I  D  1.  Post  exchange,  company,  hospital,  bakery,  etc.,  funds  are 
c[uasi  pubHc  funds,  i.  e.,  funds  used  to  carry  on  public  agencies  or 
instrumentalities  of  the  Government,  losses  of  which  can  be  reim- 
bursed from  stoppages  of  pay  of  the  officer  or  soldier  responsible 
therefor.  From  tliis  it  follows  that  the  liability  of  the  responsible 
officer  or  soldier  is  not  that  of  a  bailee  without  compensation,  but  of 
an  official  charged  with  the  custody  of  funds  in  a  public  capacity 
devolving  an  official  duty  and  a  material  trust,  in  the  discharge  of 
which  a  greater  degree  of  care  is  required  than  in  the  case  of  a  gratui- 
tous baHment.  G.  18597,  Nov.  24,  1902;  13867,  Jan.  2, 1903;  14575, 
May  1,  1903;  16065,  Mar.  24,  1904;  25552,  Sept.  11,  1909.  So 
where  the  officer  in  charge  of  a  post  exchange,  in  conveying  the  funds 
of  the  exchange  from  the  post  to  a  bank  in  town  for  d.eposit,  placed 
them  in  a  package  inside  of  the  breast  of  his  blouse  which  was  without 
pockets,  and  the  package  slipped  down  and  was  lost,  held  that  the 
officer  had  not  used  due  care  and  should  be  charged  with  the  amount 
lost.  P.  54,  4ij  June  7,  1892.  So  where  a  post  exchange  officer 
placed  in  a  sack  a  sum  amounting  to  over  $1,600  for  deposit  in  a  bank 
at  a  distant  point,  and  without  properly  sealing  and  stamping  the 
sack,  delivered  it  to  an  enlisted  man,  who  in  turn  delivered  it  to  a 
private  stage  company,  which  was  not  prepared  to  properly  guard 
and  protect  a  package  of  such  value,  and  the  stage  Ime  delivered  it 
to  the  Wells-Fargo  Express  Co.,  which  latter  company  delivered  the 
package  to  the  bank,  where  it  was  found  that  there  was  a  hole  in  the 
sack  and  the  original  sum  was  short  by  over  $500,  Jield  that  the  ex- 
change officer  was  guilty  of  carelessness  and  should  be  held  for  the 
loss.  C.  19112,  Feb.  2,  1906.  Where  an^  officer  stationed  in  the 
island  of  Mindanao  kept  his  company  fund  in  a  wooden  box  made  of 
inch  lumber  bound  with  iron,  the  box  being  securely  bolted  to  the 
house  and  locked  w^ith  a  Yale  lock,  and  it  appeared  that  other  officers 
had  kept  their  private  funds  in  the  box,  lield  that  the  fact  that  the 
officer  could  have  used  the  safe  of  the  post  quartermaster  in  which  to 
deposit  his  company  fund,  but  did  not  do  so  because  the  deposit  of 
the  funds  in  that  place  would  subject  him  to  more  or  less  delay  in 
handling  the  funds,  did  not  necessarily  constitute  evidence  of  proper 
lack  of  care.  G.  20003,  Oct.  2,  1906.  Where  a  company  commander 
placed  over  $600  of  his  company  fund  and  over  $450  of  his  private 
funds  in  a  steel  box  of  J-inch  steel  plates,  wliich  was  placed  in  his 
company  quarters  at  Camp  Bumpus,  Leyte,  P.  I.,  and  fastened  to  the 
floor  by  screws  from  the  inside  of  the  box  so  that  they  could  be  reached 
only  after  the  box  had  been  opened,  and  during  the  absence  of  the 
officer  from  his  quarters  about  6  p.  m.  the  box  was  broken  into  by 
means  of  a  hatchet  and  the  contents  stolen,  lield  that  the  officer  should 
not  be  held  responsible  for  the  loss  of  the  funds.  C.  25552,  Sept.  11, 
1909.  A  company  was  to  leave  the  next  day  for  another  station  and 
a  bill  for  company  supplies  was  to  be  paid,  and  an  apparently  entirely 
reliable  noncommissioned  officer  whose  duties  as  acting  quarter- 
master sergeant  naturally  pointed  him  out  for  the  work  was  given 
$50  by  the  company  commander  to  pay  a  creditor,  and  the  noncom- 
missioned officer  disappeared  with  the  money,  and  it  appeared  the 
noncommissioned  officer  at  the  time  of  his  desertion  had  a  deposit  of 
$50,  about  $36  of  pay  due  him,  an  undrawn  clothing  balance  of  several 


GOVERNMENT  AGENCIES  I  D  1.  639 

dollars,  and  the  prospect  of  his  discharge  in  four  months  with  mileage 
from  San  Francisco  to  New  York,  held  that  as  in  the  conduct  of  busi- 
ness it  is  absolutely  necessary  that  certain  persons  be  trusted,  and 
there  appeared  to  be  every  reason  to  trust  the  noncommissioned  officer 
in  the  case,  the  officer  was  without  negligence.  O.  16065,  Mar.  24, 
1904-  But  where  there  was  no  urgent  haste  about  the  payment  of 
the  bill,  and  the  sum  of  $115  was  intrusted  by  the  company  com- 
mander to  a  sergeant  to  pay  a  bill  agauist  the  com]mny  fund,  and  the 
sergeant  disappeared  with  the  money,  and  it  appeared  there  was  a 
month's  pay  aue  the  sergeant,  with  mileage  from  San  Francisco  to 
Washington,  and  a  probable  small  balance  on  his  clotliing  account, 
the  two  latter  items,  however,  not  being  due  for  about  18  months, 
held  that  the  facts  were  not  sufficient  to  justify  the  release  of  the 
company  commander  from  responsibility.  C.  18898,  Dec.  8^  1905. 
Where  the  officer  in  charge  of  a  post  exchange  at  a  post  adjoming  a 
city,  having  in  his  hands  for  deposit  in  bank  about  $1,000  of  post 
exchange  funds,  instead  of  personally  attending  to  the  deposit,  sent 
in  to  the  bank  with  the  funds  the  post  exchange  steward,  who  appro- 
priated to  his  own  use  a  portion  of  the  amount  and  did  not  return 
to  the  post  tni  arrested  by  the  civil  authorities — lield  that  the  officer 
had  not  taken  the  degree  of  care  properly  required  of  him,  and  was 
responsible  forthe  amount  lost.  P.  64, 138,  Mar.  8, 1894;  C.  1S867,  Jan. 
2,  1903.  And  where  the  company  commander  was  sick  in  his  quarters 
and  the  only  other  officer  on  duty  with  the  company  was  officer  of  the  day, 
and  it  was  necessary  to  obtain  change  for  use  on  payday,  and  the  com- 
pany commander  intrusted  to  his  first  sergeant  a  check  for  $75,  with 
which  to  obtain  change  at  a  town  7  miles  away,  and  the  first  sergeant 
disappeared  with  the  money,  held  that  as  in  the  conduct  of  all  business 
operations,  there  must  be  necessarily  a  certain  degree  of  trust  shown 
in  the  handling  of  funds,  and  the  company  commander  had  no  reason 
to  be  on  his  guard  against  the  theft  or  desertion  of  the  first  sergeant, 
he  should  not  be  held  responsible  for  the  loss  to  the  company  fund. 
C.  29057,  Oct.  3,  1911.  The  ''bakery  fund"  is  a  Government  instru- 
mentahty.  Not  being  public  money  the  officer  in  charge  may  be 
relieved  by  competent  authority  from  responsibility  for  a  loss.  There- 
fore, where  a  medical  officer  detailed  as  post  treasurer  places  the 
bakery  fund,  with  the  consent  of  the  senior  medical  officer  of  the  post, 
for  safe  keeping  in  the  safe  provided  by  the  Government  at  the  hos- 
pital for  the  use  of  the  medical  officer  in  charge,  and  in  wliich  were 
kept  the  hospital  fund  and  other  valuables,  the  combination  of  the 
lock  being  known  only  to  the  senior  medical  officer  and  the  post 
treasurer  and  the  surgeon  general's  office,  and  while  the  door  of^the 
safe  had  been  carelessly  left  open  by  the  senior  medical  officer  the 
bakery  fund  was  stolen,  held  that  the  post  treasurer  was  not  required 
to  keep  the  bakery  fund  in  a  bank,  and  that  the  placing  of  it  in  the  safe 
was,  under  the  circumstances  of  the  case,  a  proper  care  of  the  fund. 
Held  further  that  the  fact  that  the  post  treasurer  had  replace*d  the 
bakery  fund  from  his  private  funds  immediately  after  the  loss 
occurred,  did  not  prevent  him  from  subsequently  requesting  relief. 
C.  15609,  Dec.  15,  1903.  The  officer  in  charge  of  athletics  and 
amusements  at  a  post,  for  his  own  convenience,  sent  a  private  who 
was  his  assistant  to  the  post  exchange  to  cash  a  voucher  for  $18.50. 


640  GOVEKNMENT  AGENCIES  I  D  2. 

The  soldier  cashed  the  voucher  and  deserted  with  the  money.  Held 
that  as  between  the  officer  and  the  post  exchange  the  loss  should  be 
borne  by  the  officer.     G.  28866,  Aug.  25,  1911. 

A  post  exchange  was  entered  and  robbed  of  a  sum  of  money,  con- 
sisting in  part  of  that  day's  receipts  and  in  part  of  a  small  and  reason- 
able sum  left  by  the  officer  in  charge  with  the  exchange  steward,  to 
make  change.  Under  paragraph  337,  Army  Regulations  (par.  4, 
G.  O.  46,  A.  G.  O.,  1895),  the  officer  in  charge  is  not  responsible  for  the 
day's  receipts  till  turned  over  to  him  by  the  steward  on  the  following 
morning.  Held,  in  the  absence  of  any  evidence  of  negligence  or  want 
of  precaution  on  his  part,  that  the  officer  was  not  legally  liable  for  the 
amount  of  the  loss.     P.  58,  437,  Mar.  28,  1893. 

I  D  2.  Paragraph  318,  Army  Regulations  of  1908  (321  of  1910), 
provided  that:  ^'In  case  of  loss  of  regimental,  bakery,  exchange,  com- 
pany, or  mess  funds,  the  circumstances  will  be  carefully  investigated 
and  reported  by  the  post  council,  with  recommendation  as  to  respon- 
sibility, for  the  decision  of  the  department  commander."  Where  the 
loss  occurred  in  a  j)ost  exchange  on  Alcatraz  Island,  Tield  that  as  the 
post  on  that  island  is  not  within  the  command  of  the  department  com- 
mander, the  report  should  be  forwarded  by  the  post  commander  to 
The  Adjutant  General  of  the  Army.     0.  2^380,  Feb.  6,  1909. 

1 1)  3.  Paragraph  317,  Army  Regulations,  1904  (321  of  1910),  in 
I  elation  to  the  loss  of  regimental,  exchange,  company,  or  mess  funds 
does  not  provide  for  an  appeal  from  the  decision  of  the  department 
commander,  but  where  an  officer  has  been  held  responsible  by 
the  decision  of  the  department  commander  for  the  loss  of  funds  and 
does  not  replace  the  funds  of  his  own  motion,  the  question  of  stoppage 
of  his  pay  arises  and  the  Secretary  of  War,  before  ordering  a  stoppage 
of  his  pay  under  section  1766,  R.  S.,  as  amended  by  the  act  of  July  16, 
1892  (27  Stat.  177),  may  reexamine  the  case  to  determine  whether  the 
officer  should  be  held  responsible.     G.  20003,  July  5,  1906. 

I  D  4.  An  officer  at  the  time  of  his  death  was  accountable  for  $360 
company  fund.  A  board  of  survey  reported  that  he  had  left  in  lieu 
of  the  money  an  unindorsed  Government  check  for  that  amount,  pay- 
able to  his  order  and  purporting  to  be  for  pay  due  him.  It  thus 
appeared  that  the  officer  owed  the  company  fund  $360,  and  that  the 
Grovernment  owed  him  the  same  amount  for  salary,  the  check  not  hav- 
ing been  presented  and  paid.  Advised,  therefore,  that  as  an  officer's 
pay  may  legally  be  stopped  to  reimburse  the  company  fund,  $360  be 
stopped  against  the  pay  due  the  deceased  officer,  and  that  the  check 
referred  to  be  returned  to  the  drawer  to  be  cancelled.  G.  7957,  Apr. 
7,  1900. 

IE.  Paragraph  593,  Army  Regulations,  1904  (603  of  1910),  pro- 
vided that  "Officers  or  agents  in  the  military  service  will  not  purchase 
supplies  for  the  Government  from  any  other  person  in  the  miUtary 
service,  nor  contract  with  any  such  person  to  furnish  supplies  or  service 
to  the  Government,  nor  make  any  Government  purchase  or  contract 
in  which  such  persons  shall  be  admitted  to  share  or  receive  benefit." 
Held  that  the  prohibition  of  the  paragraph  is  directed  at  persons  in 
the  military  service,  and  as  a  post  exchange  is  not  a  person,  but  a  form 
of  governmental  agency,  the  paragraph  does  not  apply  to  a  post  ex- 
change. Held  further  that  it  would  not  be  unlawful  for  an  exchange 
to  repair  a  typewriter  for  the  Signal  Department,  charging  therefor  a 


GOVERNMENT  AGENCIES  I   F.  641 

reasonable  compensation.  C.  17927,  June  15,  1905.  Also  lield  that 
a  post  exchange  laundry  could  do  laundry  work  for  the  Government. 
C.  18156,  Oct  31,  1905, 

I  F.  A  company  of  a  volunteer  regiment  operated  an  exchange. 
After  the  muster  out  of  the  company  a  debtor  paid  to  one  of  the 
officers  of  the  company  his  indebtedness  to  the  exchange.  Held  that 
the  profits  from  the  post  exchange  are  considered  as  belonging  to  the 
organization  as  such  and  not  to  the  individual  enlisted  men  composing 
the  organization,  and  therefore  as  the  company  is  no  longer  in  exist- 
ence no  attempt  should  be  made  to  distribute  the  money  among  the 
former  members  of  the  company.  However,  as  the  profits  arose  from 
the  savings  of  enfisted  men  they  should  be  appfied  to  the  benefit  of 
enhsted  men,  and  there  would  be  no  legal  objection  to  applying  them 
to  the  company  fund  or  funds  of  one  or  more  companies  as  may  be 
thought  to  oest  subseWe  the  interests  of  the  Government.  C.  11089, 
Aug.  29, 1901;  10917,  Jan.  25, 1902.  So  held  where  an  exchange  was 
operated  by  a  large  detachment  of  recruits  who  were  ordered  away, 
leaving  a  surplus  in  the  hands  of  the  exchange  officer.  C.  13625, 
Nov.  12^  1902.  So  where  a  volunteer  regiment  was  mustered  out, 
leaving  m  possession  of  the  colonel  $145  belonging  to  the  regimental 
fund,  recommended  that  this  sum  be  distributed  amon^  new  infantry 
regiments  being  organized  for  use  as  a  part  of  their  regimental  funds. 
C.  13616,  Nov.  12,  1902. 

Post  exchanges  are  by  their  nature  intended  to  be  continuous 
in  their  operation,  new  organizations  taking  membersjiip  in  the 
exchange  as  the  old  ones  leave,  but  where  an  exchange  was  entirely 
closed  out  and  a  new  one  came  into  existence  entireh^  distinct  and 
separate  from  the  old  one,  and  upon  closing  out  the  affairs  of  the  old 
exchange  there  was  a  balance  of  some  $75  to  be  declared  as  dividends 
and  it  appeared  that  the  new  exchange  had  voluntarily  assumed  cer- 
tain debts  of  the  old  exchange,  the  total  being  unknown,  and  it 
appeared  that  a  period  of  four  years  had  elapsed  since  the  old 
exchange  was  closed  out,  held  that  it  would  be  proper  to  turn  over 
to  the  new  exchange  the  balance  belonging  to  the  old  one.  C.  17463, 
Feb.  8,  1905. 

A  debt  from  a  deceased  member  of  a  hospital  detachment  which 
belonged  to  the  post  exchange  was  assigned  to  the  surgeon  in  com- 
mand of  the  detachment  as  a  part  of  the  detachment  dividend.  Sub- 
sequently, and  before  the  debt  could  be  collected  from  the  estate  of 
the  deceased,  the  station  was  abandoned  and  the  hospital  detachment 
ceased  to  exist,  the  various  members  being  sent  to  different  stations. 
Held  that  as  hospital  detachments  do  not  constitute  a  permanent 
organization  Hke  companies  a  proper  disposition  to  make  of  the 
debt  would  be  to  turn  it  over  to  the  chief  surgeon  of  the  department 
to  be  appHed  by  him  to  a  proper  beneficiary.  C.  19321,  Mar.  10, 
1906. 

Upon  the  return  of  the  Army  of  Cuban  Pacification  to  the  United 
States  there  remained  unexpended  the  sum  of  $500  in  a  prison  mess 
fund.  This  fund  had  accumulated  from  savings  on  the  rations  of 
mihtary  prisoners  brought  from  all  parts  of  the  island  of  Cuba. 
Recommended  that  this  sum  be  distributed  between  the  military 
prisons  at  Fort  Jay  and  Fort  Leavenworth.  C.  24686,  Mar.  23,  1909. 
31106°— 12 41 


642  GOVERNMENT   AGENCIES   II   A  1. 

II  A  1.  The  post  exchange  was  not  established  by  Congress,  but  is 
maintained  under  special  regulations  prepared  by  the  War  Depart- 
ment.    It  is  a  Government  instrumentality  *  and  has  been  recog- 

1  In  the  case  of  Thomas  B.  Dugan  ?;.  U.  S.,  decided  June  5, 1899  (34  Ct.  Cls.  458,)  the 
court  said:  "Under  Post  Exchange  Regulations  adopted  by  the  War  Department, 
and  published  by  General  Orders,  No.  46,  Headquarters  of  the  Army,  July  25,  1895, 
post  exchanges  were  established  and  the  commanders  at  every  post  thereby  required 
to  institute  the  same;  to  set  apart,  rent,  or  construct  as  therein  provided  a  suitable 
building  or  rooms  therefor  and  to  detail  an  officer  to  be  designated  as  'officer  in  charge ' 
to  manage  the  business  and  affairs  of  such  exchanges  under  the  superintendence  of  a 
council  consisting  of  three  officers.    *    *    * 

"Such  exchanges  were  first  organized  under  General  Order  No.  10,  Adjutant 
General's  Ofiice,  February  1,  1889,  and  as  thus  organized  superseded  the  'canteens' 
which  were  organizations  in  the  nature  of  social  clubs,  voluntarily  formed  by  the 
officers  of  a  regiment  or  other  command  with  their  own  money  and  conducted  inde- 
pendently of  their  official  duties,  as  we  are  advised. 

"These  social  clubs,  known  as  'canteens,'  were  organized  after  the  office  of  sutler 
in  the  Army  had  been  abolished  by  the  act  of  July  28,  1866  (14  Stat.  L.  366).  They 
were  held  liable  to  internal-revenue  tax  the  same  as  social  clubs  in  cities  selling 
manufactured  tobacco,  cigars,  and  liquors  to  their  members. 

"By  the  act  of  January  28,  1893  (27  Stat.  L.  426;  2  Supp.  Bey.  Stats.  76),  post 
traderships  in  connection  with  the  military  service  were  also  abolished,  and  follow- 
ing this  came  the  establishment  of  'post  exchanges'  by  the  regulations  therefor, 
published  in  1895,  as  aforesaid.    ■*    *    * 

"On  the  application  of  the  claimant  (Post  Exchange  Officer  at  Jefferson  Barracks, 
Mo.),  *  ^  *  the  Commissioner  of  Internal  Bevenue,  under  Bevised  Statutes, 
section  3426,  as  amended  by  section  17  of  the  act  of  March  1,  1879  (20  Stat.  L.  349; 
1  Supp.  Bev.  Stat.  241),  made  allowances  or  awards  in  his  favor  for  the  repayment 
to  him  of  the  special  tax  so  paid,  and  the  Commissioner  certified  the  same  for  payment. 
4fr    *    * 

"The  decision  of  the  Commissioner  presumably  based  on  'satisfactory  evidence  of 
the  facts'  was  that  the  post  exchanges  so  established  were  'no  longer  the  mere  social 
clubs  that  the  old  canteens  were,'  but  that  they  were  'brought  under  the  complete 
control  of  the  Secretary  of  War  by  the  regulations  as  governmental  agencies'  and 
for  that  reason  the  special  tax  was  not  required  to  be  paid  by  post  exchanges  as  'dealers 
in  oleomargarine,  or  as  liquor  dealers,  or  malt  liquor  dealers.'     *    *    * 

"True,  such  exchanges  have  not  been  authorized  by  direct  legislation,  but  the 
President  has  the  undoubted  power  to  establish  rules  and  regulations  for  the  govern- 
ment of  the  Army,  and  whatever  rules  and  orders  are  promulgated  through  the  Secre- 
tary of  War  'must  be  received  as  the  acts  of  the  Executive  and  as  such  be  binding 
upon  all  within  the  sphere  of  his  legal  and  constitutional  authority,'  as  was  held  by 
the  Supreme  Court  in  the  case  of  the  United  States  i;.  Eliason  (16  Peters,  291).    *    *    * 

"If,  therefore,  in  the  judgment  and  wisdom  of  the  Executive  the  establishment  of 
such  post  exchanges  and  their  management  by  the  officers  of  the  Army  are  essential 
to  the  welfare,  good  order,  and  discipline  of  the  troops  stationed  at  such  Army  posts, 
as  seems  evident  from  the  exchange  regulations  thus  promulgated,  then  we  think 
such  exchanges,  though  conducted  without  financial  liability  to  the  Government, 
are  in  their  creation  and  management,  governmental  agencies,  established  for  the 
purpose  as  the  regulations  provide  of  supplying  'the  troops  at  reasonable  prices  with 
the  articles  or  ordinary  use,  wear,  and  consumption  not  supplied  by  the  Government 
and  to  afford  them  means  of  rational  recreation  and  amusement,'  and  also  'through 
exchange  profits,  to  provide  the  means  for  improving  the  messes. '    *    *    * 

"Thus  it  will  be  seen  that  the  establishment,  maintenance,  management,  and 
closing  up  of  such  exchanges  are  under  the  control  of  and  subject  to  the  regulations  of 
the  War  Department  as  governmental  agencies  for  the  purpose  aforesaid,     *    *    * 

"The  Government,  through  its  officers,  by  authority  of  the  regulations  not  only 
establishes  and  maintains  such  exchanges,  but  receives,  handles,  and  disburses  the 
funds  in  connection  therewith,  and  whatever  profit  accrues  is  paid  over  to  and  held 
by  the  officer  in  command  of  such  organizations  as  a  company  fund. 

"It  has  never  been  the  policy  of  the  Government  to  tax  its  own  enterprises  or  its 
own  manner  or  method  of  doing  business;  and  inasmuch  as  post  exchanges  are  estab- 
lished and  maintained  by  it  for  the  mental  and  physical  betterment  of  its  troops  in 
garrisons  and  posts,  with  resulting  if  not  immediate  benefit  to  itself,  we  think  such 
exchanges  are  exempt  from  the  payment  of  special  tax  for  the  sale  of  such  articles 
as  the  regulations  permit.    *    *    *" 


GOVERNMENT   AGENCIES   IT   A   2.  643 

nized  by  Congress,  as  for  instance,  in  the  act  of  June  13,  1890  (26  Stat. 
154),  which  prohibits  the  sale  of  intoxicating  liquors  in  post  exchanges 
in  certain  States,  and  the  act  of  July  16,  1892  (27  Stat.  178),  which 
authorizes  the  use  by  post  exchanges  of  public  buildings  and  public 
transportation  when  not  required  for  other  purposes.  Congress  has 
repeatedly  appropriated  money  for  the  construction,  equipment,  and 
maintenance  of  suitable  buildings  at  military  posts  and  stations  for 
the  conduct  of  post  exchanges.  C.  5394,  Nov.  30,  1890;  12194,  Mar. 
12,  1902;  13104,  Aug-  H,  1902;  15714,  Jan.  18, 1904;  19268,  Mar.  1, 
1906. 

II  A  2.  A  post  exchange  is  not  a  corporation.  It  is  a  cooperative 
association  of  organizations,  &c.,  wliicn  have  paid  for  their  shares 
in  the  exchange.  Articles  donated  to  the  exchange  are  donated  to 
the  association  and  such  articles  should  be  considered  as  part  of  the 
assets  of  the  exchange,  to  be  turned  over,  or  accounted  for,  by  its 
members  to  their  successors.  P.  65,  127,  May  26,  1894.  ^  post 
exchange  is  a  voluntary  unincorporated  association  between  various 
mUitary  organizations.  It  is  joint  venture  to  form  a  land  of  coopera- 
tive store.     G.  27964,  Mar.  6,  1911. 

II  B  1.  Held  that  there  is  no  legal  objection  to  an  allowance  to  the 
post-exchange  officer  out  of  the  exchange  funds,  to  offset  in  a  measure 
the  pecuniaiy  risk  which  he  is  obliged  to  take.     G.  3108,  Apr.  15, 1897. 

II  B  2.  As  a  post  exchange  is  not  a  corporation  but  a  voluntary 
association  of  organizations  and  the  business  is  carried  on  by  an  officer 
of  the  Army  detailed  for  that  pui-pose  who  has  full  charge  and  repre- 
sents the  exchange  in  all  its  transactions,  held  that  litigation  on  behalf 
of  the  post  exchange  should  be  in  the  name  of  the  exchange  officer  as 
exchange  officer  and  on  behalf  of  the  exchange.^  G.  19268,  Mar.  1, 
1906. 

II  B  3.  As  a  post  exchange  is  an  instrumentality  of  the  Govern- 
ment, the  duties  imposed  on  an  officer  in  the  management  of  the 
affairs  of  the  exchange  are  as  binding  upon  him  as  is  any  other  duty 
to  which  he  may  be  detailed  under  competent  military  authority. 
Therefore,  if  in  the  performance  of  his  duties  as  an  exchange  officer 
it  is  necessary  for  him  to  have  legal  advice,  he  may  properly  apply 
under  paragraph  1005,  Army  Regulations  (1013  of  1910),  for  such 
legal  advice,  and  in  a  proper  case  request  will  be  made  upon  the 
Department  of  Justice  for  the  assistance  of  the  proper  United  States 
attorney.  So,  held,  where  a  post  exchange  contemplated  bringing 
an  action  against  a  corporation  for  the  price  of  certain  articles  sold 
to  the  exchange.  G.  19268,  Mar.  1,  1906.  So,  where  a  so-called 
company  exchange  was  carried  on  at  a  post  by  the  consent  of  the 
commanding  officer,  although  such  exchange  was  not  authorized  by 
law  or  regulations,  and  an  action  was  brought  against  individual 
officers  for  the  debts  of  the  concern,  held  that,  owing  to  the  fact  that 
the  exchange  had  existed  by  the  authority  of  the  commanding  officer 
and  owing  to  other  peculiar  circumstances  of  the  case,  it  would  be 
proper  for  the  officers  sued  to  request  to  be  provided  by  the  Govern- 
ment with  counsel.     G.  20279,  Apr.  20,  1907. 

II  B  4.  Paragraph  3,  page  8,  General  Orders,  176,  War  Department, 
August  14,  1909,  which  publishes  the  regulations  for  the  post  exchange, 

'  In  the  case  of  Dugan  v.  U.  S.  (34  Ct.  Cls.  458)  the  action  was  brought  in  the  name 
of  the  exchange  officer. 


644  GOVERNMENT  AGENCIES   II  B  5. 

provides:  ''The  management  of  the  affairs  of  the  exchange  will  be 
conducted  by  an  officer  designated  'Exchange  Officer/  selected  and 
detailed  by  the  commanding  officer.  The  exchange  officer  is  in  charge 
of  the  exchange  and  is  responsible  for  its  management."  Held,  that 
the  above  language  did  not  necessarily  make  an  exchange  officer  per- 
sonally responsible  to  an  unpaid  creditor  of  the  exchange,  the  cred- 
itor not  having  been  paid  at  the  time  the  affairs  of  the  exchange 
were  closed.  An  exchange  officer  might  become  personally  respon- 
sible to  a  creditor  of  an  exchange  if  he  assumed  personal  responsibil- 
ity for  the  debt,  or  by  his  conduct  has  caused  the  creditor  to  lose  his 
right  to  recover  from  the  exchange.     G.  27964,  Mar,  6,  1911. 

II  B  5.  A  post-exchange  officer,  haviag  been  charged  with  embez- 
zlement of  the  exchange  funds,  made  good  the  shortage.  Having 
been  acquitted  of  the  charge,  he  requested  that  the  amount  paid  by 
him  to  make  good  the  shortage  be  refunded.  Held^  that  the  findings 
of  the  court-martial  had  solely  to  do  with  the  officer's  culpability 
from  the  point  of  view  of  discipline,  that  the  acquittal  did  not  relieve 
him  from  financial  responsibility,  and  that  the  amount  paid  by  him  to 
make  good  the  shortage  should  not  be  refunded.  0.  17944,  May  5, 
1905. 

II  C  1.  As  the  doing  of  a  general  banking  business  is  not  among 
the  purposes  for  which  a  post  exchange  is  established,  Tield,  that  it 
would  not  be  authorized  to  accept  from  a  soldier  a  deposit  for  safe- 
keeping.    G.  11155,  Aug.  31,  1901. 

II  C  2.  Where  it  was  proposed  at  a  military  post  to  authorize  the 
post  exchange  to  collect  funds  accruuig  from  a  tax  on  dogs  in  the 
post  to  be  levied  by  the  post  commander,  the  purpose  being  to  limit 
the  number  of  dogs  at  the  post,  held  that  as  such  a  tax  constituted 
an  important  restriction  upon  the  mihtary  and  police  administration 
of  the  post  and  does  not  come  clearly  within  the  scope  and  meaning 
of  the  orders  and  regulations  governing  the  sources  of  revenue  that 
post  exchanges  may  avaU  themselves  of,  recommended  that  the  pro- 
posed tax  be  not  authorized.     G.  27317,  Sept.  30,1910. 

II  D  1 .  It  is  well  settled  that  a  reasonable  credit  may  be  given  to 
an  officer  by  the  post  exchange  for  purchases  made.  U.  20869,  Jan. 
11,  1907. 

II  D  2.  An  indebtedness  from  a  soldier  may  be  collected  on  the 
pay  rolls  or  final  statement  notwithstanding  the  fact  that  such 
mdebtedness  may  have  resulted  from  gi\'ing  the  soldier  a  credit  with 
the  exchange  in  excess  of  that  authorized  by  the  regulations.  G. 
10298,  Mar.  18,  1911.  And  where  a  post  exchange  suffered  a  loss  by 
reason  of  the  fact  that  an  officer  failed  to  charge  against  a  soldier  on 
the  pay  rolls  a  debt  owing  the  exchange  by  the  soldier,  held  that  the 
officer  should  make  good  the  loss  to  the  post  exchange  notwithstand- 
ing that  the  indebtedness  of  the  soldier  to  the  post  exchange  was  in 
excess  of  the  credit  authorized  by  the  exchange  regulations,  G  14828^ 
Dec.  26,  1903. 

II  E  1.  As  the  membership  of  a  post  exchange  consists  of  organi- 
zations, companies  or  detachments  of  enlisted  men,  and  as  officers 
are  not  eligible  to  membership,  held,  that  the  officers  of  a  post  at 
which  a  post  exchange  is  located  are  not  hable  for  its  debts.  C. 
19533,  Jan.  7,  1911. 

II  F.  Where  an  exchange  has  suffered  a  loss,  all  officers  responsible 
for  such  loss  should  be  held  for  it.     For  instance,  where  losses  extend- 


GOVEKNMENT  AGENCIES  II  G.  .         645 

ing  over  a  period  of  two  years  were  caused  by  neglect  and  mismanage- 
ment, held,  that  the  post  exchange  council  as  well  as  the  exchange 
officer  should  be  held  responsible  for  it.  C.  26516,  Apr.  14,  1910. 
So,  held,  where  for  six  months  the  exchange  officer  and  post  exchange 
•council  failed  to  take  steps  to  compel. payment  of  an  indebtedness  of 
$54.39  owing  by  an  officer  and  the  officer  resigned  from  the  Army 
without  havmg  paid  the  debt.     C.  20869,  Jan.  11,  1907. 

II  G.  The  Post  Exchange  Regulations  of  May  1,  1899,  provided 
that  the  post  commander  *'when  sufficient  exchange  funds  are  avail- 
able may  cause  a  suitable  building  to  be  erected  for  the  purpose,  and 
if  a  temporary  building,  or  if  constructed  wholly  or  in  part  by  the  labor 
of  troops,  use  of  the  necessary  teams  and  such  tools,  window  sash, 
doors,  and  other  material  as  can  be  spared  by  the  Quartermaster's 
Department  is  authorized,  but  no  permanent  structure  will  be  erected 
on  a  reservation  without  first  obtaming  the  authority  of  the  Secretary 
of  War.  Expenses  of  repairs  or  alterations  of  public  buildings  for 
use  of  the  exciiange  will  be  borne  by  the  exchange  when  they  can  not 
be  provided  for  by  the  Quartermaster's  Department."  Where  a  post 
exciiange  building  at  Fort  Egbert,  Alaska,  was  erected  by  authority 
of  the  Secretary  of  War  without  cost  to  the  Government,  except  that 
the  doors,  windows,  nails,  and  chinmey  tiles  were  furnished  by  the 
Quartermaster's  Department,  held,  that  the  building  did  not  become 
the  property  of  the  Government  by  reason  of  furnishing  the  doors,  etc., 
but  became  an  asset  of  the  exchange  and  should  be  so  treated,  subject 
to  the  claim  of  the  Government  for  the  doors,  etc.  C.  10034,  Oct.  Id, 
1901. 

Where  a  building  was  erected  on  a  reservation  without  the  authority 
of  the  Secretary  of  War  as  an  addition  to  a  pubUc  building  which  had 
been  set  aside  for  the  use  of  the  post  exchange,  held,  that  the  addition 
so  erected  without  authority  became  the  property  of  the  United 
States,     a  10305,  May  14,  1901. 

Where  a  building  was  erected  by  a  post  exchange  under  a  license  by 
the  Secretary  of  War,  held,  that  if  the  license  was  revoked  and  the 
building  could  be  removed  so  as  to  realize  an  amount  in  excess  of  the 
damage  to  the  reservation  and  other  property  of  the  United  States, 
the  removal  of  the  building  should  be  permitted,  but  if  this  could  not 
be  done  the  building  should  be  held  to  be  the  property  of  the  United 
States,     a  10305,  May  14,  1901. 

III  1.  In  1896  a  dividend  was  due  the  organizations  constitut- 
ing a  post  exchange,  but  was  not  paid  because  the  bank  in  which 
the  money  was  deposited  suspended  payment.  In  1903  the  bank 
resumed  payment  and  a  new  certificate  of  deposit  was  issued  in  favor 
of  the  officer  who  was  exchange  officer  at  the  date  of  the  bank's 
suspension.  Held  that  as  the  companies  were  continuing  organi- 
zations the  dividend  due  them  in  1896  should  be  paid  to  them. 
O.  14928,  July  8,  1903.  So,  in  1900,  the  post  exchange  at  Ponce, 
P.  R.,  was  indebted  to  the  post  exchange  at  San  Juan,  P.  R.,  but 
failed  to  pay  the  debt  and  the  organizations  at  both  stations  were 
ordered  away.  In  1903  it  was  held  that  as  a  company  fund  is  a  con- 
tinuing fund  and  does  not  depend  upon  the  personnel  of  the  company, 
and  as  it  belongs,  not  to  the  individual  members  of  the  company 
but  to  the  company  as  a  unit,  the  companies  constituting  the  Ponce 
exchange  in   1900  should  pay  to  the  organizations  comprising  the 


646  .  GOVERNMENT  AGENCIES  II  I  2. 

San  Juan  exchange  in  1900  the  amount  of  the  indebtedness  of  the 
Ponce  exchange  at  that  time.'    C.  15^28,  Oct.  27,  1903. 

Where  a  post  exchange  officer  was  required  over  his  protest  to  pay 
out  of  his  private  funds  for  certain  supphes  ordered  furnished  and 
used  by  the  post  exchange,  and  the  organizations  constituting  the 
exchange  had  been  ordered  to  another  station  and  the  exchange  was 
dissolved,  held  that  as  an  exchange  is  a  voluntary  unincorporated 
association  between  various  militaiy  organizations  and  constitutes 
a  joint  venture  to  form  a  kind  of  cooperative  store,  the  various 
organizations  comprising  it  are  liable  to  third  parties  for  obligations 
incurred  on  account  of  the  joint  business.  Ordinarily  the  liabilities 
incurred  on  the  joint  account  are  extinguished  by  the  post  exchange 
itself,  but  if  in  a  particular  case,  such  as  the  present,  it  is  impracticable 
to  have  the  exchange  pay  the  obligation,  the  several  organizations 
comprising  it  would  still  remain  liable  as  individual  partners  remain 
liable  for  partnership  debts  after  the  dissolution  of  a  partnership. 
Therefore  recommended  that  the  post-exchange  officer  be  reimbursed 
for  his  involuntary  payment  by  the  several  organizations  comprising 
the  exchange  at  the  time  the  indebtedness  was  incurred.  C.  27964, 
Mar.  6,  1911,  and  Oct.  3,  1911. 

II  I  2.  Prior  to  the  admission  of  a  new  organization  to  an  estab- 
lished post  exchange,  a  board  of  officers,  as  required  by  exchange 
regulations,  made  an  examination  of  the  affairs  of  the  exchange  and 
adjusted  the  accounts  and  values.  No  appeal  was  taken  from  the 
findings  of  the  board  to  the  department  commander.  Subsequently 
it  was  discovered  that  some  of  the  bills  due  the  exchange  were  value- 
less and  some  bills  due  by  the  exchange,  the  existence  of  which  was 
not  known  before,  were  presented  for  payment.  Held,  that  c[uestions 
as  to  the  liability  of  members  of  an  exchange  should  be  considered  as 
finally  determined  by  the  action  provided  by  exchange  regulations 
except  in  cases  where,  after  a  settlement,  fraud  is  alleged  or  facts  are 
discovered  bearing  on  the  value  of  the  membership  in  the  exchange 
which  were  not  known  at  the  time  the  values  were  adjusted  and 
which  with  the  exercise  of  due  care  and  diligence  could  not  have 
been  known  to  those  having  the  adjustment  in  charge.  In  such  an 
exceptional  case  it  would  be  proper  for  the  department  commander 
to  appoint  a  board  to  investigate  the  facts  and  recommend  equitable 
settlement.  C.  19178,  Feb.  9,  1906.  Held,  further  that  it  was  the 
intent  of  the  exchange  regulations  that  the  action  of  the  department 
commander  should  be  final  and  that  such  cases  should  not  be  for- 
warded to  higher  authority.     C.  192^8,  Mar.  6,  1906. 

II I  3.  A  hospital  corps  detachment  bought  into  the  post  exchange 
on  a  basis  of  12  men  in  the  detachment.  The  number  of  men  having 
been  reduced  to  6  the  dividends  of  the  exchange  were  distributed  to 
the  detachment  on  the  basis  of  6.  Held,  that  although  membership  , 
in  an  exchange  is  by  organization,  the  exchange  regulations  take 
into  consideration  the  size  of  the  organization,  the  size  on  joining 
being  taken  from  the  number  of  men  present  at  the  time  of  joining, 
whereas  the  dividends  are  calculated  on  the  basis  of  the  wliole  number 
of  men  who  have  been  present  with  the  organization  during  the  period 
covered  by  the  distribution.  Therefore  the  method  of  distribution 
on  the  basis  of  six  was  in  accordance  with  the  exchange  regulations. 
C.  20043,  July  11,  1906. 


GOVERNMENT  AGENCIES   II  I  4.  647 

II  I  4.  Membership  in  an  exchange  is  not  obligatory  on  the  units 
whicli  go  to  form  the  garrison.     C,  192^8,  Mar.  6,  1906. 

II I  5.  The  enlisted  men  detailed  for  a  course  of  instruction  at  the 
Artilloiy  School,  which  course  lasted  practically  during  the  entire 
year,  during  that  time  occupied  separate  quarters  and  had  a  separate 
mess.  HeM,  that  they  constituted  an  organization  or  detachment 
competent  to  acquire  membership  in  a  post  exchange.  C.  29361, 
Jan.  4,  1912. 

II  J  1 .  As  post  exchanges  are  created  by  orders  there  is  no  legal 
objection  to  the  estabUshment  of  one  exchange  with  several  branches 
at  a  miUtary  post,  or  to  the  establishment  of  several  independent 
exchanges  at  the  same  post,  as,  for  instance,  several  regimental  ex- 
changes,    a  27345,  Oct.  11,  1910. 

II  J  2.  A  soldier's  fmal  statements  which  had  been  transferred  to 
a  post  exchange  were  cashed  by  a  paymaster.  It  was  subsequently 
discovered  that  the  paymaster  had  overpaid  the  post  exchange. 
By  the  time  the  discovery  was  made  the  membership  of  the  post 
exchange  had  changed.  Held,  that  as  the  post  exchange  is  an 
instrumentality  of  the  Government  and  a  part  of  the  military  system 
of  administration,  the  accounts  between  the  paymaster  and  the 
post  exchange  could  be  ordered  to  be  readjusted.  C.  24167,  Dec. 
2,  1908. 

II  J  3.  Paragraph  318,  Army  Regulations,  1910,  provides  that 
the  proceedings  of  the  post  exchange  council  will  be  submitted  to 
the  post  or  other  comimander,  who  will  sign  his  approval  or  objec- 
tion in  the  council  book,  and  that  should  the  post  or  other  commander 
disapprove  the  proceedings,  and  the  council,  after  reconsideration, 
adhere  to  its  conclusions,  a  copy  of  the  proceedings  will  be  sent  by 
the  commanding  officer  to  the  division  commander,  whose  decision 
thereon  will  be  final.  Held,  that  the  ''proceedings"  referred  to  by 
this  para^aph  is  the  record  of  the  action  taken  by  a  majority  of 
the  council,  and  it  is  upon  this  record  that  the  post  or  other  com- 
mander must  note  his  approval  or  disapproval,  as  the  case  may  be. 
While  there  can  be  no  objection  to  a  minority  report  being  appended 
to  the  proceedings  of  the  council,  such  minority  report,  however, 
represents  merely  the  personal  views  of  the  minority  and  is  not 
the  "proceedings"  to  be  approved  or  disapproved.  Therefore  where 
the  action  taken  by  the  post  commander  consisted  in  the  approval 
of  the  minority  report,  Tield  that  it  did  not  constitute  a  compliance 
with  the  above  regulations.^     C.  29268,  Nov.  28,  1911. 

II  J  4.  At  the  time  a  bank  went  into  the  hands  of  a  receiver  it 
had  funds  on  deposit  in  the  name  of  the  regimental  exchange  officer. 
Before  a  dividend  was  declared  this  post  exchange  officer  died. 
Held,  that  it  would  be  proper  for  the  regimental  adjutant  to  receive 
and  receipt  for  the  dividends.     C.  16517,  June  28,  1904- 

II  J  5.  Post  exchanges  having  been  recognized  by  statute  as 
Government  agencies  a  bureau  of  the  Government  may  legally 
transfer  property  to  the  post  exchange  at  cost  price.  U.  20993, 
Jan.  26,  1907. 

II  J  6.  The  cost  of  telegraphic  messages  over  the  lines  of  com- 
mercial companies  on  post  exchange  business  does  not  constitute  a 
lawful  charge  against  the  appropriations  for  the  payment  of  telegrams 

^  See  Retirement. 


648  GOVEBNMENT  AGENCIES  11  J  7. 

on  public  business,  but  as  the  post  exchange  is  an  instrument  ah  ty 
of  the  Government,  such  messages  should  be  transmitted  free  over 
lines  owned  and  operated  by  the  War  Department.  C.  19479, 
Mar.  26,  1910.^ 

II  J  7.  A  discharged  soldier  transferred  his  final  statements  to  a 
post  exchange  officer,  who  thereupon  advanced  him  from  the  post 
exchange  funds  S75  and  forwarded  the  statements  to  a  paymaster. 
Upon  receipt  from  the  paymaster  of  a  check  for  $102.79  in  payment 
or  the  final  statements,  the  post  exchange  officer  remitted  $27.50  to 
the  discharged  soldier,  retaining  29  cents  to  cover  postage,  registra- 
tion fee,  and  cost  of  money  order.  Five  months  later  the  paymaster 
discovered  that  he  had  made  an  overpayment  through  his  own  error 
in  computation,  and  called  upon  the  post  exchange  to  reimburse  him 
on  the  ground  that  it  had  received  public  money  to  which  it  was  not 
entitled.  The  post  exchange  council  disallowed  the  claim,  setting 
forth  in  its  proceedings  that ' '  the  post  exchange  is  expressly  debarred 
from  making  any  profit  by  these  transactions,  exchange  officers  being 
required  to  certify  on  each  of  the  statements  that  they  were  cashed  as 
a  matter  of  accommodation  to  the  soldier  and  without  profit  to  the 
post  exchange;  that  in  consequence  it  has  been  the  custom  to  make  an 
advance  or  partial  payment  to  the  men  and  upon  receipt  of  the  pay- 
master's check  to  make  final  settlement;  that  the  Government  does 
not  furnish  the  exchange  officer  with  any  facilities  for  making  com- 
putations in  these  cases,  and  hence  he  is  obhged  to  regard  the  pay- 
master's check  in  settlement  as  officially  accurate  and  final."  Hetd, 
that  the  loss  should  not  fall  on  the  post  exchange,  as  under  the  cir- 
cumstances it  acted  simply  as  the  agency  through  which  payment  was 
made  by  the  paymaster  to  the  soldier  and  was  in  no  way  responsible 
for  the  error.  The  soldier  and  not  the  post  exchange  was  the  debtor 
to  whom  the  paymaster  should  look  for  reimbursement  for  the  over- 
payment. The  error  having  been  made  by  the  paymaster  the  loss 
should  fall  on  him  under  Army  Regulations,  654  (665  of  1910). 
O.  7589,  Jan.  28, 1900. 

IIJ  8.  The  post  exchange  is  a  part  of  the  administrative  machinery 
of  the  Army  established  by  Army  Regulations,  which  have  the  force  of 
law.  A  fraud  committed  by  the  steward  of  a  post  exchange  in  its 
management  is  therefore  clearly  a  mifitary  offense.  C.  5255,  Nov.  15, 
1898, 

IIJ  9.  Held,  that  the  appropriation  in  an  Army  appropriation  act, 
''for  fuel  and  lights  for  enlisted  men,"  included  the  fuel  and  fights 
required  at  a  canteen,^  since  thus  used  they  are  for  ^'enfisted  men" 
ahnost  if  not  quite  as  much  as  when  used  in  their  places  of  messing 
and  sleeping.  But  as  the  act  authorizes  a  sale  of  articles  for  fuel  or 
light  for  cash  to  '' officers  "  only,  a  sale  could  not  be  made  to  a  canteen. 
Even  though  the  official  in  charge  of  a  canteen  is  a  commissioned  offi- 
cer, a  sale  to  him  of  such  material  would  not  be  for  his  use  but  for  that 
of  the  canteen,  and  therefore  unauthorized.     P.  51,  289,  Jan.  7, 1892. 

IIJ  10.  Paragraph  1051,  Army  Regulations  of  1904  (1060  of  1910), 
provided  that  the  allowance  of  fuel  to  be  issued  to  a  post  exchange 
should  be  such  quantity  as  might  be  certified  to  by  the  officer  m 
charge  and  approved  by  the  commanding  officer.     Held,  that   the 

*  See  note  to  "Government  Agencies  and  Instrumentafities, "  II A  1,  for  a  descrip- 
tion of  a  "canteen." 


GOVERNMENT  AGENCIES  II  J   11.  649 

regulation  would  apply  to  a  post  exchange  which  maintains  a  laundry 
as  well  as  to  one  which  does  not.     C.  21521,  May  13,  1907. 

II  J  11.  Where  a  ''volunteer  band"  was  organized  at  a  military 
post  by  sokUers  voluntarily  associating  themselves  for  that  purpose, 
the  band  not  being  one  recognized  by  the  statutes  or  regulations,  but 
furnisliing  martial  music  for  the  post,  held  that  it  woukl  be  proper  to 
apply  a  portion  of  the  profits  of  the  post  exchange  for  the  support  of 
thebantl.     C.  14893,  July  1,  1903. 

II  J  12.  A  ''volunteer  band"  is  not  entitled  to  share  in  the  allot- 
ment of  5  per  cent  of  the  net  profits  of  a  post  exchange.  0.  23870, 
May  24, 1911. 

III  A  1 .  A  debt  due  from  an  officer  to  the  company  on  account  of 
boartUng  with  the  company  is  a  debt  to  the  company  fund  for  which 
the  officer's  pay  can  be  stopped.     C.  21595,  May  31,  1907. 

Ill  A  2.  A  private  laundry  undertook  to  pay  to  a  company  fund  a 
percentage  of  the  profits  on  the  laundry  work  of  members  of  the 
company  who  patronized  that  laundry.  Held,  that  the  mere  fact  that 
the  company  fund  received  a  profit  from  the  laundry  did  not  make  a 
debt  owing  by  a  member  of  the  company  for  washing,  a  debt  to  the 
company  fund.     C.  21595,  May  31, 1907. 

Ill  A  3.  A  sum  of  money  was  advanced  from  the  company  fund  to 
several  enlisted  men  to  enable  them  to  creditably  represent  their 
company  and  regiment  at  an  atliletic  meet.  Held,  that  there  was  no 
warrant  of  law  for  the  loaning  of  money  for  any  purpose  to  enlisted 
men  from  the  company  fund.     C.  23694,  Aug.  6,  1908. 

IIIBl.  Paragraph  331,  Army  Regulations,  1901  (331  of  1910), 
provides  that  the  company  fund  shall  be  disbursed  by  the  company 
commander  "solely  for  the  benefit  of  the  company."  Held  that 
under  the  above  provision,  it  would  be  proper  to  purchase  a  typewriter 
for  the  use  of  the  company  if  it  was  ' '  solely  for  the  benefit  of  the  com- 
pany."^ C.  15447,  f^ov.  3,  1903.  Also  a  gardener  or  pool-room 
attendant  might  be  paid  from  the  company  fund  for  their  services. 
C.  15447,  May  9,  1911.  Also  a  filing  cabinet  or  document  file  which 
contained  not  only  manuals,  pamphlets  and  official  books,  but  phono- 
graph disks  for  use  in  the  company  phonograph,  provided  such  a  cabi- 
net was  deemed  of  sufficient  benefit  to  the  men  of  the  company  to  war- 
rant purchase.  C.  15447,  July  7,  1911.  Also  the  purchase  of  certain 
articles  of  furniture  for  the  comfort  and  convenience  of  the  men  of  the 
company.  C.  25758,  Nov.  6,  1909.  But  a  room  orderly  could  not 
properly  be  paid  extra  compensation  out  of  the  company  fund,  even 
though  he  was  in  charge  of  over  $3,000  worth  of  Government  property, 
as  the  custody  of  such  property  would  be  part  of  his  military  duty. 
C.  15447,  May  19,  1911. 

*  Circular  6,  War  Department,  Jan.  27,  1904,  provides  that  "The  company  fund  is 
not  intended  for  expenditure  in  the  purchase  of  articles  to  facilitate  the  transaction  of 
business  in  a  company.  On  the  contrary  the  legitimate  and  proper  application  of  this 
fund  is  in  supplementing  the  articles  already  furnished  by  the  supply  departments  for 
the  purpose  of  increasing  the  comfort,  pleasure,  contentment,  mental  and  physical 
improvement  of  the  organization.  To  accomplish  this  purpose,  disbursements  of  com- 
panv  fund  are  authorized ;  disbursements  for  all  other  purposes  are  unauthorized. " 

circular  56,  War  Department,  Oct.  31,  1906,  provides  "Circular,  No.  6,  War  Depart- 
ment, Jan.  27,  1904,  is  construed  as  not  prohibiting  the  purchase  or  repair  of  type- 
writing machines  from  the  company  fund,  provided  the  officer  responsible  for  expendi- 
tures from  that  fund  decides  that  the  same  are  made  solely  for  the  benefit  of  the  com- 
pany and  for  the  purpose  of  increasing  the  comfort,  pleasure,  and  contentment  of  the 
enlisted  men, " 


650  GOVERNMENT  AGENCIES  III  B  2. 

Ill  B  2.  Such  an  organization  as  a  company  exchange  is  not  recog- 
nized by  regulations  and  has  no  oflicial  status  as  a  government  agency. 
It  must  be  regarded  as  a  civil  association  instituted  for  the  purpose  of 
trade  and  subject  to  all  the  rules  and  responsibilities  which  the  laws 
attach  to  merchants  whether  they  operate  alone  or  as  partners  or 
members  of  a  voluntary  association.  So  where  an  exchange  called  a 
company  exchange  was  run  at  a  post  by  one  of  the  companies  by 
authority  of  the  commanding  officer,  and  it  appeared  that  the  ex- 
change was  established  by  the  company  officers  for  the  benefit  of  the 
company,  and  that  none  of  the  company  fund  was  actually  used  in 
the  operation  of  the  exchange,  although  two  small  contributions  to 
the  company  fund  had  been  made  from  the  profits  of  the  exchange, 
lield  that  the  company  fund  would  not  be  liable  for  the  debts  of  the 
concern.!     C.  20279,  Sept.  14,  1906. 

Ill  B  3.  Where  a  certificate  of  deposit  respecting  a  dividend  of  a 
company  from  the  profits  of  a  post  exchange  was  lost  without  the 
fault  of  any  one,  and  the  bank  declined  to  pay  the  certificate  unless 
a  bond  was  given  to  secure  it  against  loss,  Jield  that  the  expense  of 
obtaining  such  a  bond  could  properly  be  paid  from  the  company  fund. 
C.  14716,  May  26, 1903. 

IV.  At  a  certain  post  where  a  laundry  was  operated  as  a  feature  of 
the  post  exchange,  a  rule  of  the  exchange  required  that  a  charge 
for  washing  should  be  made  against  each  recruit  at  that  station, 
whether  he  sent  his  clothes  to  be  washed  or  not.  Held  that  there  was 
no  authority  by  which  an  arbitrary  charge  could  be  made  against  a 
recruit  for  clothes  not  washed.  C.  21900,  Aug.  14,  1907;  23958,  Oct. 
16,  1908.  So,  held,  also,  as  to  a  company  order  that  each  member  of 
the  company  should  pay  the  company  one  dollar  per  month  for  laun- 
dering his  clothes,  where  a  soldier  did  not  have  his  clothes  laundered 
by  the  company  laundry.     C.  22627,  Jan.  29,  1908. 

V.  A  soldier  on  duty  requiring  him  to  bear  his  arms  may  do  so, 
notwithstanding  that  a  law  of  a  State  or  Territory  may  prohibit  the 
carrying  of  arms.  This  is  on  the  ground  that  he  is  an  instrumentality 
of  the  Government  of  the  United  States,  and  as  such  can  not  lawfully 
be  interfered  with  by  State,  Territorial,  or  municipal  regulations 
when  performing  his  duties  in  the  proper  way.  While  en  route  under 
orders  from  one  station  to  another  with  his  arms  he  is  on  a  duty 
requiring  him  to  bear  arms.  If  an  unlawful  attempt  is  made  to 
interfere  with  such  a  soldier  it  would  be  his  duty  to  resist  it,  using  as 
much  force  as  was  necessary.  C.  3448,  Aug.  19,  1897,  Sept.  25,  1897, 
and  June  11,  1907.  So  where  the  rules  established  by  a  railroad 
company  for  the  protection  of  the  general  traveling  public  required 
aU  passengers  to  ''break"  their  guns  or  leave  them  m  the  baggage 
car,  held  that  to  comply  with  such  rules  would  be  a  violation  of  Army 
Regulations,  and  the  War  Department  should  decline  to  permit 
soldiers  traveling  on  duty,  and  therefore  acting  as  an  instrumentality 
of  the  United  States,  to  comply  with  such  rules. ^  C.  344^,  June  25, 
1907,  and  July  22,  1907. 

*  G.  O.  165  War  Department,  Oct.  1,  1906,  prohibits  the  establishment  of  company- 
exchanges  or  other  undertakings  not  authorized  by  Army  Regulations. 

2  The  railroad  company  in  the  above  case  modified  its  rules  so  as  to  provide  that  the 
rule  as  to  carrying  arms  should  "not  apply  to  United  States  soldiers  or  State  militia 
traveling  with  arms  under  orders  from  competent  military  authority  on  any  coaches 
or  trains  of  the  company." 


GOVERNMENT  AGENCIES  VI.  651 

VI.  Medical  practice  by  officers  of  the  Medical  Corps  of  the  Army, 
outside  of  military  posts,  should  conform  to  the  laws  of  the  State, 
but  this  is  subject  to  the  qualification  that  medical  treatment  of 
members  of  the  Army  on  the  active  list,  being  an  instrumentality  of 
the  United  States  Government,  can  not  be  controlled  by  State  legis- 
lation, and  may  be  furnished  wherever  the  soldier  may  be  stationed. 
Under  paragranh  1451,  Army  Regulations  (1496  of  1910),  enlisted  men 
on  the  retired  list  are  allowed  medical  atten(hmce  at  the  stations  of 
medical  officers  only.  By  paragraph  1450,  Army  Regulations  (1495 
of  1910),  medical  officers  on  duty  are  required  to  attend  officers  and 
enlisted  men  and  when  practicable  their  families,  MecUcal  officers  in 
their  attendance  upon  the  families  of  officers  and  enlisted  men,  out- 
side of  miUtary  posts,  would  have  to  comply  with  the  State  laws; 
otherwise  such  attenihmce  would  not  be  "practicable.''  So  in  the 
treatment  of  civilians  not  living  on  military  reservations,  the  laws  of 
the  State  would  have  to  be  complied  with.  C.  3270,  June  10,  1897; 
20395,  Sept.  18,  1906. 

VII.  General  Orders,  No.  28,  War  Department,  February  28,  1911, 
provided  that  "the  establishment  of  company  barber  shops  and  of 
company  billiard  and  pool  tables,  from  which  revenues  may  be 
derived,  is  authorized.  All  funds  accruing  therefrom  will  be  ac- 
counted for  as  part  of  the  company  fund."     C.  23694,  June  27, 1911. 

VIII.  A  band  fund  which  has  been  collected  at  a  post  for  a  volunteer 
band  should  be  accounted  for  in  the  same  way  that  regimental  funds 
are  accounted  for.     C.  23870,  Sept.  16,  1910,  and  Jan.  11,  1912. 

IX.  Wliere  the  effects  of  a  deceased  officer  were  turned  over  to  a 
quartermaster  for  shipment  to  -  the  legal  representatives  of  the 
aeceased,  and  while  awaiting  the  necessary  information  as  to  the 
whereabouts  of  the  representatives,  the  effects,  including  cash  and  a 
paymaster's  check,  were  stolen,  held  that  as  the  property  came  into 
the  custody  of  the  quartermaster  as  part  of  his  official  duty,  it 
devolved  ujpon  him  to  perform  such  duty  without  fault  or  negligence 
and  with  more  than  ordinary  care.     C.  95^1,  Apr.  29,  1901. 

X.  Paragraph  328,  Army  Regulations,  1908  (331  of  1910),  provides 
that  the  company  fund  shall  be  disbursed  by  the  company  com- 
mander '^  solely  for  the  benefit  of  the  company."  While  there  is  no 
corresponding  statement  as  to  a  mess  fund,  still,  owing  to  the  fact 
that  the  company  and  mess  funds  are  treated  together  in  the  same 
set  of  paragraphs  and  are  of  the  same  general  character,  the  general 
mess  fund  should  be  considered  as  subject  to  limitations  similar  to 
those  governing  a  company  fund.  Therefore  lield  that  the  erection 
of  a  small  house  for  the  shelter  of  the  keeper  of  a  general  mess  dairy 
is  not  for  the  benefit  of  the  members  constituting  the  general  mess, 
and  the  general  mess  fund  should  not  be  expended  for  that  purpose. 
C.  15^7,  Aug.  8,  1910. 

XI.  It  is  well  settled  that  the  effect  of  an  Executive  proclamation 
reserving  pubhc  lands  in  a  Territory  for  a  mihtary  reservation  is  to 
withdraw  them  from  sale.  As  the  President  has  no  power  to  suspend 
the  operation  of  the  Territorial  laws  or  to  vary  their  execution  in 
any  particular,  it  follows  that  the  Territorial  laws  in  force  continue 
to  operate  over  such  a  reservation  in  the  same  manner  and  to  the 
same  extent  after  the  establishment  of  the  reservation  as  they  did 
before,  for  the  Territorial  government  is  a  mere  agency  of  the  United 
States,  and  has  no  power  to  cede  or  otherwise  divest  itself  of  political 
jurisdiction.     Therefore,  after  a  reservation  has  been  declared,  the 


652    GOVERNMENT  HOSPITAL  FOE  THE  INSANE GRATUITY:  SYNOPSIS. 

laws  of  the  United  States  and  of  the  Territory  would  continue  to 
operate  on  the  reservation  unless  their  operation  was  modified  by 
Congress,  or  unless  Congress  exempted  the  reservation  from  their 
operation,  or  (both  the  Territory  and  the  Army  being  agencies  of 
the  United  States)  unless  the  Territorial  statutes  interfered  with  the 
purpose  for  which  the  reservation  was  estabUshed.  Therefore  where 
the  Executive  proclamation  declaring  the  Subig  Bay  naval  reserva- 
tion added  at  the  end  ''and  said  reservation  and  all  lands  included 
within  said  boundaries  are  hereby  placed  under  the  governance  and 
control  of  the  Navy  Department,"  Jield  that  it  was  beyond  the  power 
of  the  Executive  to  withdraw  the  reservation  from  the  control  of  the 
insular  government  and  to  place  the  reservation  beyond  the  civil  and 
criminal  jurisdiction  of  the  insular  courts  in  cases  where  the  control 
of  the  insular  government  and  the  exercise  of  jurisdiction  by  the 
courts  did  not  interfere  with  naval  administration.  C.  12975,  July 
15,  1902. 

CROSS  REFERENCE. 

Compensation  paid  by See  Pay  and  allowances  I  C  6  c  (1). 

Debt  to See  Articles  of  War  LXII  D. 

Not  subject  to  tax See  Tax  III  P. 

Territories  I  B. 

Purchase  from See  Contracts  VII  I. 

Reimbursement  of  by  retired  soldier See  Retirement  II  C  2. 

GOVERNMENT   HOSPITAL   FOR   THE   INSANE. 

See  Insanity. 
Discharge  of  inmate See  Discharge  V  D ;  XIII  D  4  a  (1) ;  b. 

Desertion  XIV  D. 

Payment  of  officer  in See  Pay  and  allowances  I  B  5. 

Retired  officer See  Retirement  I  G  2  c. 

Retired  soldier See  Retirement  II  B  5. 

Soldier  committed  to See  Desertion  VII  A  2. 

Discharge  XVI  B  1. 

GOVERNOR  OF   STATE. 

Abuse  of  civilians  by  militia See  Articles  of  War  LI  V  F  2. 

Accountability  for  public  property See  Militia  IX  D. 

Aides  to See  Militia  III  I. 

Appointments  by,  to  volunteers See  Office  VA4to5;5btoc. 

Arms  to  colleges See  Military  instruction  II  B  2  b. 

Can  not  command  Federal  troops See  Army  HE;  12. 

War  I  E  1  f. 
Control  over  troops  previous  to  muster  in. .  .See  Volunteer  Army  II  A  1. 

Public  money See  Militla.  X  A  2. 

Sale  of  public  property  to  State See  Militia  IX  B  1. 

State  camp  of  instruction See  Militia  VI  B  1  a;  b. 

GRATUITY. 

I.  ACT  OF  MAY  11,  1908  (35  STAT.  108),  LINE  OF  DUTY  LAW. 

A,  Rule  — ,  Beneficial,  Therefore  Construed  Liberally Page  653 

1.  Rule  when  death  has  several  causes Page  654 

2.  Rule  when  soldier  dies  in  the  post. 

3.  Rule  when  soldier  dies  on  pass. 

4.  Self-destruction. 

a.  Rule  when  soldier  is  sane  and  dies  by  his  own  wrongful  act. 

(1)  When  in  the  post. 

(2)  When  on  furlough. 

b.  Rule  when  soldier  is  insane  and  dies  by  his  own  wrongful  act. 


GRATUITY   I   A.  653 

I.  ACT  OF  MAY  11,  1908  (35  STAT.  108),  LINE  OF  DUTY  LAW— Continued. 

A.  Rule  — ,  Beneficial,  Therefore  Construed  Liberally — Continued. 

5.  Athletic  sports. 

a.  Rule  — ,  line  of  duty  status. 

B.  Amended  by  Act  of  March  3,  1909  (35    Stat.  735).     (This  law  since 

that  date  is  a  misconduct  law  rather  than  a  line  of  duty  law,  but 
still  requires  liberal  construction.) 

1.  Married  men. 

a.  Widow  receives  gratuity  in  absence  of  designation Page  655 

2.  Single  men. 

a.  Gratuity  paid  to  designated  beneficiary. 

b.  No  beneficiary  designated,  no  gratuity. 

3.  To  what  class  of  troops  paid? 

a.  Philippine  Scouts. 

b.  Veterinarian. 

4.  Rules  for  designation. 

a.  <Jontinuous  service,  new  designation  not  required. 

b.  An  alternate  beneficiary  may  be  designated. 

5.  Suicide  is  misconduct. 

6.  Cases  of  misconduct  other  than  suicide Page  656 

II.  SECTION   1298,  REVISED  STATUTES. 

A.  Issue  of  Clothing  to  Replace  Clothing  Destroyed  to  Prevent  Con- 
tagion.   (See  Clothing.) 

III.  ACT  OF  MARCH  3,  1885  (23  STAT.  350).  • 

A.  Issue  to  Replace  Clothing  Destroyed  by  Fire,  etc     (See  Pay  and 
Allowances  II  A  3  a  (4)  (d)  [1]  to  [2].) 

IV.  ISSUE  OF  RATIONS  TO  DESTITUTE  PERSONS.     (See  also  Laws  II  A 

1  e  (1).) 

I  A.  The  act  of  May  11,  1908  (35  Stat.  108)*  .giving  six  months' 
extra  pay  to  the  beneficiary  of  an  officer  or  an  enlisted  man  who  dies 

1  The  act  of  May  11,  1908,  is  as  follows: 

"That  hereafter  immediately  upon  official  notification  of  the  death  from  wounds  or 
disease  contracted  in  line  of  duty  of  any  officer  or  enlisted  man  on  the  active  list  of 
the  Army,  the  Paymaster  General  of  the  Army  shall  cause  to  be  paid  to  the  widow  of 
such  officer  or  enlisted  man,  or  to  any  other  person  previously  designated  by  him,  an 
amount  equal  to  six  months'  pay  at  the  rate  received  by  such  officer  or  enlisted  man 
at  the  date  of  his  death,  less  seventy-five  dollars  in  the  case  of  an  officer  and  thirty- 
five  dollars  in  the  case  of  an  enlisted  man.  From  the  amount  thus  reserved  tne 
Quartermaster's  Department  shall  be  reimbursed  for  expenses  of  interment,  and  the 
residue,  if  any,  of  the  amount  reserved  shall  be  paid  subsequently  to  the  designated 
person.  The  Secretary  of  War  shall  establish  regulations  requiring  each  officer  and 
enlisted  man  to  designate  the  proper  person  to  whom  this  amount  shall  be  paid  in 
case  of  his  death,  and  said  amount  shall  be  paid  to  that  person  from  funds  appropriated 
for  the  pay  of  the  Army." 

The  act  of  Mar.  3,  1909  (35  Stat.  735),  amends  the  above  act  of  May  11,  1908  (35 
Stat.  108),  by  striking  out  the  words  "contracted  in  the  line  of  duty"  and  inserting 
in  lieu  thereof  the  words  "not  the  result  of  his  own  misconduct." 

The  Comptroller  holds  that  the  act  of  Mar.  3,  1909  (35  Stat.  735),  which  amends  the 
act  of  May  11, 1908,  speaks  only  from  its  date  and  is  applicable  only  in  cases  of  officers 
and  enlisted  men  who  died  subsequent  to  Mar.  3,  1909.     XV  Comp.  Dec,  896. 

Reference  to  the  debates  in  Congress  on  the  act  of  Mar.  3,  1909  (Vol.  43,  Part  III, 
Cong.  Rec,  60th  Cong.,  p.  2688),  shows  that  there  was  no  intention  in  the  congressional 
mind  of  altering  the  theretofore  construction  of  the  words  "line  of  duty,"  and  that 
the  new  words  "not  the  result  of  his  own  misconduct"  were  intended  to  change  the 
construction  of  the  law  as  a  whole,  but  not  to  be  an  interpretation  of  the  words  * '  line 
of  duty." 

The  question  of  line  of  duty  therefore  does  not  enter  in  connection  with  the  act  of 
May  11,  1908,  after  its  amendment  by  the  act  of  Mar.  3,  1909. 


654  GRATUITY  I  A  1. 

upon  the  active  list,  is  a  gratuity.  Held,  therefore,  that  the  phrase 
'4ine  of  duty"  should  be  construed  with  great  liberality,  and  doubts 
resolved  with  a  view  to  give  the  beneficiary  the  benefit  of  the  gratuity. 
C.  25498,  Sept.  2,  1909. 

I  A  1.  When  several  causes  contribute  to  produce  a  disability 
resulting  in  loss  of  life,  some  of  which  clearly  are  in  the  line  of  duty 
and  some  not,  Tield,  that  a  reasonable  test  for  determining  whether  or 
not  the  loss  of  life  was  in  line  of  duty  is  as  follows,  viz,  if  the  dis- 
ability not  in  line  of  duty  would  not  have  produced  death  indepen- 
dently of  those  contracted  in  the  line  of  duty  then  the  death  must  be 
held  to  have  been  in  line  of  duty.     C.  23666,  Nov.  19,  1908. 

I  A  2.  Held,  in  the  case  of  the  death  of  a  soldier  within  the  limits 
of  his  reservation,  that,  in  the  absence  of  evidence  that  the  death 
was  due  to  willful  neglect  or  criminal  conduct,  it  was  in  fine  of  duty. 
C.  23666;  Nov.  20^  and  Dec.  I4,  1908. 

I  A  3.  A  soldier  when  not  required  to  be  in  ranks  with  his  com- 
mand which  was  on  practice  march  and,  while  on  pass,  was  watching 
the  breakers  and  was  knocked  ofi^  from  the  bowlder  upon  which  he 
was  standing  and  carried  out  to  sea.  Held,  that  as  the  soldier  was 
not  engaged  in  anything  criminal  or  unlawful,  and  as  there  was  not 
anything  in  his  conduct  which  imphed  carelessness  or  negligence  as 
to  his  personal  safety,  his  death  was  accidental  and  in  the  line  of 
duty.  C.  23666,  Nov.  19,  1908,  Dec.  8,  9,  12,  and  24,  1908,  Jan.  5, 
Feb.  3,  4,  13,  16,  and  Map.  2,^  1909. 

I  A  4  a  (i).  A  soldier,  thinking  that  he  was  drinking  aromatic 
spirits  of  ammonia,  drank  tincture  of  opium  which  he  had  stolen 
from  the  horse  medicines  pertaming  to  the  Quartermaster's  Depart- 
ment. He  died.  Held  that  as  his  death  was  the  result  of  his  own 
misconduct  it  was  not  in  line  of  duty.     C.  23666,  Nov.  20,  1908. 

I  A  4  a  (2).  A  soldier  on  furlough  took  his  own  life  by  taking  an 
overdose  of  opiate  to  relieve  pain.  Held  that  the  death  was  not 
caused  in  line  of  duty,  first,  because  while  on  furlough  he  was  not 
on  a  duty  status;  second,  because  the  immediate  cause  of  his  death 
was  his  own  misconduct  in  taking  the  opiate.     C.  23666,  Dec.  7,  1908. 

I  A  4  b.  Held  that  where  a  suicide  results  from  insanity  the  death 
is  in  line  of  duty  in  the  absence  of  testimony  that  the  insanity  or 
mental  depression  was  incurred  by  the  fault  of  the  soldier  or  as  a 
result  of  his  misconduct.  C.  23666,  July  15,  Nov.  7  and  19,  1908, 
and  Mar.  9,  1909. 

I  A  5  a.  Precedents  in  the  War  Department  demand  that  injuries 
received  in  playing  baseball  and  football  should  be  deemed  to  have 
been  incurred  in  the  line  of  duty,  and  it  is  not  understood  that  even 
in  pension  cases  the  Department  of  the  Interior  has  ruled  against 
these  precedents.  The  necessity  of  manly  sports  among  the  men 
has  become  so  well  recognized  as  to  place  the  position  of  the  War 
Department  in  this  respect  on  a  much  firmer  basis  than  it  has  been 
in  the  past.  Held,  therefore,  that  the  death  of  a  sergeant  wlio, 
while  on  pass,  was  in  charge  of  a  football  team,  and  wliose  death 
was  incurred  in  connection  with  the  game  of  football,  was  in  line  of 
duty  under  the  act  of  May  11,  1908.     C.  23666,  Feb.  3,  Mar.  11,  1909. 

I  B.  The  act  of  May  11,  1908  (35  Stat.  108),  giving  six  months' 
extra  pay  to  the  beneficiary  of  an  officer  or  enlisted  man  who  dies 
upon  the  active  list,  is  a  gratuity.  Held,  therefore,  that  the  act 
should  be  construed  with  great  liberality,  and  doubts  resolved  with  a 


GRATUITY   I   B   1   a.  655 

view  to  give  the  beneficiary  the  benefit  of  the  gratuity.-  C.  25498, 
Sept  2,  1909. 

I  B  1  a.  Held  that  when  an  ofTicer  or  an  enlisted  man  dies,  leaving 
a  widow,  the  widow  shall  receive  an  amount  enual  to  six  months' 
pay  of  the  deceased,  provided  no  other  person  snail  have  been  pre- 
viously designated  by  him  to  receive  said  amount  under  the  act  of 
May  11,  1908.     C.  23666,  Sept.  9,  1908. 

IB  2  a.  Held  that  in  the  case  of  an  unmarried  man  the  six  months' 
pay  shall  be  paid  to  the  person  designated  by  him  previous  to  his 
death.     C.  23666,  Sept  9,  1908. 

I  B  2  b.  Held  that  there  is  no  obligation  placed  by  the  act  of  May 
11,  1908,  upon  an  officer  or  an  enlisted  man  that  requires  him  to 
designate  a  beneficiary  under  that  act.  Held  also  that  where  an 
oflicer  or  an  enlisted  man  has  refused  or  failed  to  appoint  a  bene- 
ficiary, the  action  should  be  accepted  by  the  Government,  and  in  the 
absence  of  a  widow  the  Government  is  thus  saved  the  expense  of 
payuig  a  gratuity.     C.  23666,  Sept  9,  1908. 

I  B  3  a.  Held  that  the  gratuity  of  six  months'  pay  provided  for 
in  tiie  act  of  May  11,  1908,  may  be  paid  to  widows  or  beneficiaries  of 
Philippine  Scout  officers  or  men,  as  the  Philippine  Scouts  constitute 
a  part  of  the  Army  of  the  United  States.     (J.  23666,  Sept  22,  1908. 

I  B  3  b.  Held  that  vetermarians  of  the  Field  Artillery  and  Cavalry 
arms  of  the  service  come  within  the  beneficial  operation  of  the  act 
of  May  11,  1908  (35  Stat.  108).     C.  23666,  Sept  25,  1908. 

I  B  4  a.  Where  the  service  rendered  by  the  soldier  is  continuous, 
Tield  that  it  is  not  necessary  for  him  to  make  a  new  designation  at 
each  new  enlistment  unless  he  desires  to  make  a  change  in  the  ben- 
eficiary previously  designated.     C.  23666,  Nov.  13,  1908. 

I  B  4  b.  Held  that  under  the  act  of  May  11,  1908  (35  Stat.  108), 
as  amended  by  the  act  of  March  3,  1909  (35  Stat.  735),  an  officer 
or  enlisted  man  may  name  an  alternate  beneficiary  in  the  event  of 
the  death  of  the  principal  beneficiary.^     C.  23666,  Mar.  2  and  8, 1911, 

1  B  5.  Held  that  a  soldier  who  commits  suicide^  dies  of  an  unlaw- 
ful act  and  that  this  act  causes  his  death  to  be  considered  as  a  result 
of  his  own  misconduct,  unless  it  can  be  shown  by  competent  evi- 
dence that  he  was  suffering  from  a  mental  disability  at  tne  time  he 
committed  suicide,  and  that  such  mental  disability  was  an  incident 
or  a  result  of  his  military  service.  C.  23666,  June  8,  1910.  See  also 
id.,  Sept  27,  Oct  6,  Nov.  5, 16,  and  17,  Dec.  9  and  17, 1909,  Jan.  5  and 
13,  Feb.  8,  10,  and  15,  Mar.  16,  20,  and  30,  May  5,  10,  and  27,  June 
1  and  25,  July  16  and  23,  Aug.  13,  27,  and  31,  Sept  3,  17,  19,  20, 
and  29,  Oct  24-  aiid  31,  Nov.  1,  10,  and  23,  Dec.  9  and  17,  1910,  Jan. 
31,  Feb.  20  and  24,  Mar.  20,  July  15,  Aug.  7.  21,  and  26,  1911,  Jan. 
1,  1912. 

^  As  the  act  of  Mar.  3,  1909  (35  Stat.  735),  strikes  out  the  words  "contracted  in  the 
line  of  duty"  in  the  act  of  May  11,  1908,  and  substitutes  therefor  the  words  "not  the 
result  of  his  own  misconduct,"  the  fatuity  law  does  not  involve  a  question  of  line 
of  duty  since  Mar.  3,  1909,  but  does  involve  a  question  of  "misconduct." 

2  XVI  Comp.  Dec,  595. 

2  "A  self-killing  by  an  insane  person  who  understands  the  physical  nature  and  con- 
sequences of  the  act,  but  not  the  moral  aspect,  is  not  a  death  by  suicide  within  the 
meaning  of  a  condition  that  a  policy  of  insurance  upon  his  life  shall  be  void  in  case 
he  shall  die  by  suicide."  Manhattan  Life  Ins.  Co.  v.  Broughton  (109  U.  S.,  121, 
127,  132);  cases  by  Justice  Gray;  Accident  Ins.  Co.  of  North  America  v.  Crandel 
(120  id.,  530);  21  Central  Law  Journal,  378-82;  25  American  Law  Register,  386-90. 


656  GRATUITY   I   B   6. 

I  B  6.  Held  that  under  the  act  of  May  11,  1908  (35  Stat.  108),  as 
amended  by  the  act  of  March  3,  1909  (35  Stat.  735),  which  provided 
for  the  payment  of  a  gratuity  to  the  beneficiary  of  a  deceased  officer 
or  soldier  unless  his  death  should  be  considered  as  the  result  of  his 
own  misconduct,  the  following  acts  are  misconduct  within  the  mean- 
ing ol  the  law : 

The  excessive  use  of  alcohol.  C.  23666,  Jan.  30,  Oct.  18,  and  Dec. 
10,  1910,  Jan.  4  and  Mar.  14,  1911,  and  Jan.  1  and  13,  1912. 

Drinking  wood  alcohol.  C.  23666,  Aug.  22,  Oct.  4  and  14,  and 
Dec.  27,  1910. 

Drinking  bay  rum  and  hair  tonic.  C.  23666,  June  2,  July  26  and 
Aug.  30,  1910. 

Disobeying  sentinel's '  order  to  halt.  C.  23666,  Feb.  18,  1910, 
Feb.  6,  1911. 

Absence  without  leave.  0.  23666,  Mar.  7,  May  3  and  5,  June  2, 
8,  15,  16,  and  18,  July  18,  Aug.  9  and  22,  Sept.  3,  13,  and  14,  Nov.  23 
and  28,  1910,  Feb.  15  and  20,  Mar.  15,  July  8  and  21,  and  Aug.  11, 
1911. 

Trespassing  on  railroad  track.  C.  23666,  Aug.  4,  1910,  Mar.  16, 
July  6,  and  Aug.  26,  1911. 

Attempting  to  board  a  moving  train  while  on  furlough.  C.  23666, 
Sept.  8,  1910. 

Presence  in  a  house  of  prostitution  for  an  improper  purpose. 
C.  23666,  Apr.  23  and  26,  1910,  and  Jan.  4,  1912.  ^ 

Quarreling  with  his  mistress  whom  he  had  introduced  to  the 
world  as  his  wife.     C.  23666,  May  26,  1910. 

Being  the  aggressor  in  a  fight.  C.  23666,  Dec.  22,  1909,  June  13, 
1910,  Aug.  7,  1911,  and  Jan.  30,  1912. 

Quarreling  with  a  poHceman.     C.  23666,  July  5,  1911. 

Escaping  while  a  garrison  prisoner.     C.  23666,  Jan.  4)  1911. 

Drunkenness.     C.  23666,  Mar.  23,  1911,  and  Jan.  30,  1912. 

Quarreling  in  a  saloon.  C.  23666,  Nov.  11,  1910,  and  Aug.  26, 
1911. 

Standing  up  in  a  rowboat  and  causing  it  to  capsize.  C.  23666, 
Mar.  29,  1910. 

Unauthorized  sailing  in  bad  weather,  in  which  the  boat  is  likely  to 
capsize.     C.  23666,  Jan.  18,  1912. 

IV.  The  issue  of  rations  to  destitute  citizens  is  governed  by 
Army  Regulations.^  Issues  to  entire  communities,  in  behalf  of  suf- 
ferers by  fire,  flood,  hurricane,  etc.,  can  only  be  authorized  by  Con- 
gress. In  an  emergency,  it  is  witliin  the  discretion  of  the  President 
to  make  such  issues,  but  his  action  should  be  reported  to  Congress 
for  approval.^  Funds  appropriated  by  Congress  for  relief  of  such 
sufferers  can  not  be  used  to  reimburse  private  parties  for  disburse- 
ments for  similar  purposes.  C.  7344,  Nov.  27,  1899;  6875,  Aug.  12, 
1899;  7483,  Jan.  9,  1900;  7493,  Jan.  12,  1900;  7640,  Feb.  3,  1900; 
11077,  Aug.  22,  1901.  A  siniilar  rule  applies  to  reimbursements  for 
transportation.     C.  11919,  Jan.  24,  1902. 

1  See  par.  1241  A.  R.,  1910  ed. 

2  See  Op.  Atty.  Gen.  (MS.)  of  Oct.  15,  1898. 


GREAT  BRITAIN HARBOR  REGULATION.  657 

CROSS   REFERENCE. 

Act  of  Mar.  2,  1889  (25  Stat.  869) See  Desertion  XVI  Die. 

Clothing  issues See  Pay  and  allowances  II  A  3  a  (4)  \d) 

to  {€). 

Flood  sufferers See  Public  property  I  A  5. 

Widow  of  retired  officer  not  entitled  to See  Retirement  I  K  4. 

GREAT   BRITAIN. 

Extradition  from See  Desertion  IV  C. 

GUARANTOR. 

Contracts  with See  Contracts  XXVIII. 

Liability  of. See  Contracts  XI  to  XII. 

GUARANTY. 

Bids See  Bonds  I  A  to  F  1. 

Bo7id  signed  by  bidder^ s  relatives See  Bonds  I  L. 

History  of. See  Contracts  XI  A. 

GUARDIAN. 

For  officer See  Army  I  B  2  a  (2)  (a). 

Officer^ s  pay  to See  Pay  and  allowances  I  B  5. 

Rights  of,  over  minor See  Enlistment  I  B  1  b  to  2. 

Discharge  XII  a. 
Soldier's  pay  to See  Pay  and  allowances  I  C  4. 

GUNNER'S   BADGE.  ' 

See  Insignia  of  merit  III  C. 

HABEAS   CORPUS. 

Commanding  officer See  Command  V  A  6  to  7. 

Discharge  on See  Discharge  VII  A;  B. 

Minor See  Desertion  V  B  7. 

Discharge  XII  D  2. 
Sixite  court See  Articles  of  War  CII  H  2. 

Command  V  A  6  b;  b(l);  (1)  (a);  (6). 

Desertion  HI  D;  V  F  3  a. 

Discharge  VII  B. 

Suspension  of See  War  I  C  12  to  13;  E  1  e. 

United  States  court See  Command  V  A  6  a. 

HANDWRITING. 

Proof  of. See  Discipline  XI  A  17  b  (1)  (a). 

HARBOR  LINES. 

See  Navigable  waters  VI  to  VII. 

HARBOR  REGULATION. 

United  States  not  subject  to  fee  for See  Tax  III  K. 

31106—12 42 


658  HAWAII HOMICIDE. 

HAWAII. 

A  Territory See  Militia  X  D. 

HAY. 

Right  to  cut  on  military  reservation See  Public  property  I  A  1;  III  H  3. 

HAZING. 

By  cadets. See  Army  I  D  3  b  (2)  (a). 

HEAT   AND   LIGHT. 

See  Pay  and  allowances  II  A  1  to  2. 

Excavation  for  underground  conduits See  Appropriations  LV. 

Gas See  Appropriations  XLVII. 

Post  exchanges See  Government  agencies  II  J  9;  10. 

HEIRS. 

Claimants '. See  Claims  XII  A, 

Contracts  need  not  mention See  Contracts  XLIII. 

Settlement  with See  Contracts  L. 

HIS   ARMS   OR  AMMUNITION. 

See  Articles  of  War  XLII  B. 
HISTORY   OF  REGIMENTS. 

See  Militia  XX. 

HOLDING  CORRESPONDENCE  WITH  ENEMY. 

See  Articles  of  War  XLVI,  A;  B. 

HOLIDAY. 

See  Civilian  employees  I  B  to  C. 

HOMESICKNESS. 

Cause  of  desertion See  Desertion  IX  L.  *    . 

HOMICIDE. 

By  guard See  Discipline  XVII  A  4  g  (6)  to  i. 

By  officer See  Articles  of  War  CII  C  1  a. 

Discipline  I  A  1. 

By  sentinel See  Articles  of  War  LIX  LI;  CII  II  to  I. 

Character  of  victim See  Discipline  XI  A  12. 

Charge  of. See  Discipline  II  D  14  a;  XII  A  12  a. 

Officer  or  soldier See  Articles  of  War  LIX  D. 


I 


HONEST  AND   FAITHFUL  SERVICE HUMANITY.  659 

HONEST  AND  FAITHFUL  SERVICE. 

See  Discharge  XI  B  1  to  8. 

See  Enlistment  I  D  3  to  4. 

Discharge  hy  purchase See  Discharge  VI  D  2;  5. 

Discharge  vnihout  honor  when  not  rendered.. See  Discharge  III  E. 

Essential/or  reenlistment See  Enlistment  I  D  3  to  4. 

In  fraudulent  enlistment See  Enlistment  I  A  9  f  (7)  (b) ;  g  (4) ;  1. 

Necessary  for  honorable  discharge See  Discharge  II  B. 

Of  deserter See  Desertion  VI  D. 

Discharge  II  B  2  a. 

Preirious  convictions  considered See  Discharge  III  C. 

Rights  contingent  on See  Discharge  IV  D. 

HONORABLE  DISCHARGE. 

See  Discharge  I;  II  to  III;  V  A;  B. 

Certificate  of  disability See  Discharge  V  A;  B;  XX  D  1. 

Effect  on  status See  Discharge  XXII  A. 

Discipline  VIII  lie.  • 

For  naturalization  purposes See  Discharge  VI  D  4. 

Irrevocable See  Discharge  XV  Al;  2;D1;  la;b. 

On  writ  of  habeas  corpus See  Discharge  VII  A. 

Of  felon See  Enlistment  I  A  9  c  (2). 

Of  fraudulently  enlisted  minor See  Enlistment  I  A  9  g  (2) ;  (4) ;  1. 

Officer  failing  on  promotion See  Retirement  I  B  6  c  (2);  (3). 

Removes  charge  of  desertion See  Desertion  XVI  B. 

Retired  soldier See  Retirement  II  F  3. 

Soldier  in  hands  of  civil  authorities See  Discharge  XIII  D  6  a. 

HORSE. 

Forage  for See  Pay  and  allowances  II  A  2  d  to  e. 

Sale  of  officer's,  to  Government See  Army  I  G  3  b  (2)  (6), 

Suitable  mount See  Pay  and  allowances  I  B  7  to  8. 

Transportation  of. See  Army  I  G  3  d  (3)  (c)  [4]  . 

See  Pay  and  allowances  II A  2  a  (2)  to  (3). 

HOSPITAL   CORPS. 

See  Army  I  G  3  d  (5)  to  (6). 

HOSPITALS. 

See  Army  I  G  3  e  (7)  to  H. 

Appropriation  for See  Appropriations  XXII. 

Care  of  civilian  employees See  Civilian  Employees  II  C. 

Construction  of. See  Appropriations  XLII. 

Electric  fans  for See  Appropriations  XLI. 

Larceny  in See  Claim s  I X . 

Laundry  work See  Contracts  VII  I. 

HOT   SPRINGS,  ARK. 

See  Army  I  G  3  d  (7)  to  (8). 

Garrison  court-martiat  at See  Article  op  War  LXXXII  C  2. 

Summary  court  at See  Discipline  XVI  E  6. 

HUMANITY. 

Issue  of  rations  to  flood  and  famine  sufferers  .See  Law  II  A  1  e  (1). 
Sale  of  coal  to  civilians  in  Alaska See  Territories  III  C. 


660  HUNTING  LEAVE IMPERSONATION. 

HUNTING  LEAVE. 

See  Absence  I  B  2. 

HUNTING   PASS. 

See  Absence  I  C  2. 

IDENTIFICATION. 

Evidmceof. See  Discipline  V  B  1;  X  H  2;  XI  A  17  a 

(2)  (a)  [1]  [6]. 

ILLEGAL  ACQUITTAL. 

Does  not  remove  charge  of  desertion . See  Desertion  XVI  F. 

ILLEGAL   COURTS. 

See  Discipline  XV  HI  to  3. 
Enlistment  I  D  3,  d.  (5). 

ILLEGAL  DISCHARGE. 

By  way  of  favor See  Discharge  VI  A. 

ILLEGAL   ORDER. 

Convening See  Discipline  XV  H  1  to  3. 

Disobedience  of See  Discipline  XII  A  8  a  (3)  (a). 

Articles  op  War  XXII  B. 

Dismissing  officer  already  mustered  out See  Volunteer  Army  IV  B  2. 

Duty  under See  Discipline  V  D  6;  XII  A  8  a  (3)  (a). 

Articles  of  War  XXI  D. 

Executive  reserving  private  lands See  Public  property  III  A  2. 

Inoperative See  Discharge  XV  A  2. 

Enlistment  I  A  3  c. 
Revoking  executed  discharge See  Discharge  XV  D  1  a;  b ;  c. 

ILLEGAL   SENTENCE. 

See  Desertion  I  D. 

Discipline  XIV  E  9  to  10;  XV  E  to 
F;  H;  K. 

Action  on See  Discharge  XVI  G  1  to  5. 

Correction  of See  Pay  and  allowances  III  El. 

Dismissal See  Office  IV  E  1  b  to  c. 

In  peace  for  offense  committed  in  war See  Discipline  XIV  E  9  a  (13)  (a);  (6). 

Jurisdiction,  lack  of. See  Discipline  IX  F  1  a. 

Mitigation  of. See  Articles  of  War  CXII  C. 

IMMIGRATION  INSPECTOR. 

Civil  officer See  Desertion  V  B  12. 

IMPEACHMENT. 
Of  witness See  Articles  of  War  CXXI  A. 

IMPERSONATION. 

As  agent  for  American  National  Red  Cross.  See  Red  Cross  II  C. 
Of  officer See  Uniform  I  C. 


IMPLIED  ACCEPTANCE — INFERIOR   COURT.  661 

IMPLIED   ACCEPTANCE. 

Of  appointment See  Office,  III  A  7  a;  B  5  a. 

IMPLIED   AUTHORITY. 

In  appropriation  act  to   purchase  article 

named  in  estimate See  Appropriations  I  C. 

To  construct  bridges See  Navigable  waters  III  B  4. 

IMPLIED   CONTRACT. 

See  Claims  VII  C  2;  3. 

IMPLIED   LEASE. 

See  Claims  IV. 
IMPROPER  PRACTICE. 

See  Articles  op  War,  LX  A  3. 

INCIDENTAL   EXPENSES. 

Appropriations  for See  Appropriations  XXI. 

Ihe  of,  to  pay  armed  civilian  employees See  Insignia  of  merit  III  B  3. 

INDIAN. 

Enlistment  of See  Enlistment  I  B  1  d  (3);  2  a;  C  1  c  (1). 

Instruction  of,  by  Army  officer See  Army  II  C  1. 

Reward  for  arresting  deserter See  Desertion  V  B  14  b. 

Trial  by  military  court See  War  I  C  8  a  (3)  (c)  [1]. 

INDIAN  AGENT. 

Army  officer  as See  Pay  and  allowances  II  A  2  b  (1).  . 

INDIAN   COUNTRY. 

Intoxicants  sold  in See  Intoxicants  III  to  IV. 

Order  in See  Army  II  C. 

Right  of  way  through See  Public  Property  III  C;    D. 

Trespassers  ejected  from See  Army  II  I  5. 

INDIAN  POLICE. 

Civil  officer See  Desertion  V  B  11. 

INDIAN  WAR. 

See  Articles  of  War  LXIII  B. 
War  I  a  5  to  6. 

INFAMOUS   CRIMINAL   OFFENSE. 

See  Articles  of  War  III  A. 
Words  and  Phrases. 

INFERIOR   COURT. 

See  Articles  of  War  LXXXII  A  to  C  2; 

LXXXIII  A  to  C  2. 
See  Discipline  XVI  A  to  F. 


662  INFBINGEMENT  OF   PATENT INSANITY. 

INFRINGEMENT   OF  PATENT. 

See  Patent  IV;  IV  A;  VII  C. 

INJUNCTION. 

Against  contractor See  Contracts  X  D. 

Relating  to  payment  of  public  money See  Public  Money  II  C  to  D. 

INSANE   OFFICER. 

Awaiting  retirement See  Retirement  I  B  6  d . 

Payment  of See  Pay  and  Allowances  I  B  5. 

Resignation  by See  Office  I V  D  2. 

INSANE   SOLDIER. 

See  Insanity. 

Charge  of  desertion See  Desertion  XVI  C  2. 

Discharge See  Discharge  V  D;  XIII  D  4  a;  a  (1); 

b;XVIBl;2. 

Forfeiture See  Desertion  XIV  D. 

Reward  for  arrest  of See  Desertion  V  B  18  c. 

Suicide  of. See  Insanity  I  A  4  b. 

Trial  of. See  Discipline  XV  F  3. 

INSANITY. 

I.  DISPOSITION  OF  INSANE  PERSONS. 

A.  Sent  to  Government  Hospital  for  Insane Page  662 

1.  Insane  when  enlisted. 

2.  General  prisoner. 

3.  Transportation  authorized Page  66S 

B.  May  be  Turned  Over  to  Local  Authorities. 

1.  If  he  refuses  to  go  to  Government  hospital. 

2.  If  a  legal  resident  where  employed. 

C.  Civilian  Employees  not  Authorized  to  Enter  Government  Hospital. 

D.  Insanity  Not  in  Line  of  Duty,  Not  Admitted  to  Government  Hospital. 

I  A.  Section  4843,  R.  S.,  which  provides  for  the  admission  of 
certain  persons  to  the  Government  Hospital  for  the  Insane  on  the 
order  or  the  Secretary  of  War,  is  not  mandatory  upon  the  latter, 
but  charges  him  with  an  exercise  of  discretion  in  the  preparation  and 
execution  of  commitments  to  the  institution.  C.  19208,  July  25, 
1910.  The  section  is,  however,  mandatory  upon  the  supermtendent 
of  the  hospital,  who  must  receive  the  patient  under  the  order  of 
the  Secretary.     G.  19208,  July  25,1910. 

I  A  1 .  Where  a  soldier  was  found  to  be  insane,  the  insanity  ante- 
dating his  enlistment  and,  therefore,  rendering  the  Jatter  fraudulent 
and  so  voidable,  held,  that  so  lon^  as  the  enlistment  was  not  voided 
the  man  was  still  a  soldier  and  might,  under  section  4843,  R.  S.,  be 
sent  to  the  Government  Hospital  for  the  Insane.  C.  19208,  Feb.  15, 
1906. 

I  A  2.  An  insane  general  prisoner  is  usually  sent  to  the  Govern- 
ment Hospital  for  the  Insane  under  the  fifth  clause  of  section  4843 
R.  S.,  relating  to  "Indigent  insane  persons  who  have  become  insane 
within  three  years  after  their  discharge  from  such  service,  from  causes 


INSANITY  I  A  3.  663 

which  arose  during  and  were  produced  by  said  service."  Should, 
however,  the  foregoing  clause  not  be  applicable,  such  insane  prisoner 
may  be  sent  to  the  Government  Hospital  for  the  Insane  under  the 
right  given  m  the  act  of  June  23,  1874  '  (18  Stat.  215).  C.  18802, 
Nov.  1  and  18, 1905. 

I A  3.  Wliere  admission  to  the  Government  Hospital  for  the 
Insane  is  provided  for  by  law  (sec.  4843,  R.  S.,  as  amended),  the 
transportation  of  the  patient  is  also  authorized  as  an  incident  of  the 
right  of  admission.     C.  11067,  Apr.  24,  1907, 

I  B  1.  Where,  under  section  4843,  R.  S.,  an  insane  civil  employee 
of  the  Army  may  properly,  under  the  order  of  the  Secretary  or  War, 
be  admitted  to  the  Government  Hospital  for  the  Insane,  and  yet 
decline  to  enter  the  said  hospital,  he  may  be  turned  over  to  the  local 
authorities  of  the  place  where  he  may  be  stationed  for  custody  and 
treatment.     C.  11067,  Apr.  8,  1910. 

I  B  2.  Section  4843  R.  S.  (as  amended)  authorizes  the  admission 
of  insane  persons  belonging  to  the  Army  and  of  certain  insane  civil 
employees  of  the  Army  to  the  Government  Hospital  for  the  Insane 
on  the  order  of  the  Secretary  of  War;  it  does  not,  however,  require 
that  such  an  order  shall  be  made.  It  follows  that  where  such  insane 
persons  are  legal  residents  of  the  locality  where  they  may  be  employed 
at  the  time  of  their  disability,  they  are  as  much  entitled  to  admission 
to  a  local  asylum  as  is  any  other  citizen  or  resident  of  the  locahty. 
C.  11067,  Apr.  24,  1907,  May  10  and  Nov.  14,  1910;  19208,  July  80, 
1907,  Oct.  7,  1909,  and  July  25,  1910. 

I  C.  Under  existing  law  (sec.  4843  R.  S.  as  amended)  authority 
exists  for  the  Secretary  of  War  to  send  to  the  Government  Hospital 
for  the  Insane,  for  treatment  and  custody,  insane  persons  belonging 
to  the  Army  and  insane  civihans  employed  m  the  Quartermaster's,  Pay, 
and  Subsistence  Departments  of  the  Army.  Held,  that  civilians 
employed  in  the  Army,  other  than  in  the  departments  enumerated, 
might  not  be  sent  to  that  hospital  under  the  order  of  the  Secretary 
of  War,  as  they  were  not  persons  belonging  to  the  Army  nor  yet 
included  among  the  civilians  mentioned  in  the  statute.  C  11067, 
Aug.  16,  1901,  July  1,  1907,  and  Apr.  17,  1908,  June  3,  1908,  Apr.  9, 
May  10,  Nov.  15  and  25,  1910. 

I  D.  Held,  that  a  double  condition  is  imposed  as  a  prerequisite 
for  admission  to  the  Government  Hospital  for  the  Insane.  The 
insanity  of  the  indigent  person  must  be  due,  not  only  to  causes  which 
arose  during  that  service,  but  which  were  produced,  bv  such  service. 
It  is  clear  from  the  papers  in  reference  that  the  sypnihtic  disorder 
from  which  this  man  is  suffering  was  not ''  produced  by  such  service" — 
that  is,  was  not  an  incident  of  his  military  service,  but  was  due  to  his 
own  misconduct.     C.  25122,  June  15,  1909. 

CROSS   REFERENCE. 

Accused See  Discipline  IV  B  1  d  (1). 

Deserter See  Desertion  V  B  18  c. 

Enlistment  while  suffering  from See  Enlistment  I  A  9  f  (5). 

Evidence  of. See  Discipline  XI  A  11  a. 

In  line  of  duty See  Claims  VIII. 

Renders  witness  incompetent See  Discipline  X  B  2 

^  See  Sec.  4852,  R.  S.,  as  to  prisoners  becoming  insane  in  the  United  States  peniten- 
tiary. 


664  INSIGNIA  OF   MERIT  I  A  1  a. 

INSIGNIA  OF  MERIT. 
I.  MEDALS. 

A.  Medal  op  Honor. 

1.  Act  of  March  3,  1863  (12  Stat.  751). 

a.  Existing  law Page  664 

b.  Not  awarded  to  contract  Burgeon Page  665 

c.  Private  property. 

2.  Act  of  April  23,  1904  (33  Stat.  274). 

a.  ** Official  record"  defined. 

b.  President  can  not  refuse  to  replace  medal. 

c.  "Replace"  defined. 

d.  Time  limit  on  recommendation  not  to  be  made. 

(1)  Recommendation  not  made  within  one  year.  Page  666 

e.  Not  granted  to  deceased  persons. 

B.  Lipe-Saving  Medals. 

C.  Special  Medals. 

D.  Unauthorized  Medals. 

E.  Congressional  Medal  for  Philippine  Service. 

1.  Surgeon  of  volunteers. 

2.  Regular  Army. 
n.  Certificate  of  Merit. 

A.  Act  of  February  9,  1891  (26  Stat.  737),  Retroactive Page  667 

B.  Applicant  Belongs  to  a  Regiment. 

C.  Not  Limited  to  Distinguished  Service  in  Battle. 

D.  May  be  Earned  in  Fraudulent  Enlistment. 

E.  Retired  Enlisted  Man  May  Receive. 

F.  Eye  Witness. 

G.  Discharged  Soldier Page  668 

H.  "Corps"  Defined. 

1.  Unassigned  recruit. 

2.  Philippine  Scouts. 

I.  May  Not  be  Awarded  to  an  Officer. 

K.  Certificate  of  Merit  Pay  May  be  Forfeited  by  Sentence  of  Court- 
Martial. 
m.  BADGES. 

A.  Society. 

1.  "In  their  own  right"  defined. 

2.  Unauthorized. 

a.  Society  of  Foreign  Wars. 

b.  Association  of  Military  Surgeona. 

B.  Campaign. 

1.  Part  of  uniform — issued  as  such. 

2.  Claim  to,  of  discharged  men Page  669 

3.  Quartermaster  employees,  not  entitled  to. 

C.  Gunners. 

I  A  1  a.  The  act  of  March  3,  1863  (12  Stat.  751),  did  not  appear  in 
the  Revised  Statutes.  The  President  continued,  however,  to  award 
medals  of  honor  after  December  1,  1873,  The  joint  resolution  of 
May  2,  1896  (29  Stat.  473),  authorized  the  issue  and  use  of  a  rosette 
or  knot  to  be  worn  in  lieu  of  a  medal,  and  a  ribbon  to  be  worn  with 
any  medal  that  had  been  theretofore  or  would  be  thereafter  awarded 
under  the  provisions  of  the  joint  resolution  of  July  12,  1862  (12  Stat. 
623),  and  the  act  of  March  3,  1863  (12  Stat.  751).     Held,  that  this 


I 


INSIGNIA  OF   MERIT  I   A  1  b.  665 

was  an  express  legislative  sanction  of  the  continuance  of  the  practice 
of  issuing  medals  of  honor  since  December  1,  1873.  Held,  further, 
that  the  act  of  April  23,  1904  (33  Stat.  274),  had  the  same  force.  C. 
14778,  June  5,  1903;  16918,  Sept.  20,  1904. 

I  A  1  b.  As  section  6  of  the  act  of  March  3,  1863  (12  Stat.  751), 
provides  for  the  award  of  the  medal  of  honor  under  certain  conditions 
to  officers,  noncommissioned  officers,  and  privates  only,  held,  that 
it  may  not  be  awarded  for  distinguished  services  in  action  by  a  con- 
tract or  acting  assistant  surgeon,  who  is  no  longer  in  the  service.*  C. 
1128,  Mar.  20, 1895;  17222,  Dec  IS,  1904. 

I  A  1  c.  A  medal  of  honor  is  a  recognition  of  gallantry,  which  is 
granted  by  authority  of  Congress  to  such  officers  or  enlisted  men, 
"as  have  most  distinguished  themselves  in  action."  When  a  medal 
is  conferred  there  is  included  in  the  grant  a  conveyance  of  ownership 
of  the  medal,  regarded  as  a  chattel,  which  becomes  the  property  of 
the  grantee,  and  is  subject  to  such  disposition  as  he  may  see  fit  to 
make  of  it  as  a  part  of  his  personal  estate;  subject,  however,  to  the 
qualification  that  it  may  be  worn  and  used  as  a  medal  of  honor  only 
by  the  person  upon  whom  it  was  originally  conferred  in  recognition 
of  his  mihtary  services.  C.  11682,  Nov.  13,  1901;  16964,  Sept.  SO, 
1904. 

I  A  2  a.  The  act  of  April  23,  1904  (33  Stat.  274),  provides,  "When- 
ever it  shall  appear  from  official  records  in  the  War  Department  that 
any  officer  or  enlisted  man  of  the  Army  so  distinguished  himself  in 
action  as  to  entitle  him  to  the  award"  of  the  medal  of  honor  under 
the  then  existing  law,  the  award  shall  not  be  prevented  by  the  fact 
that  the  person  has  since  become  separated  from  military  service, 
or  that  it  was  not  recommended  or  applied  for  while  he  was  in  the 
service.  Held,  that  the  "official  record"  is  one  that  must  have  been 
made  by  an  officer  of  the  Army  pursuant  to  statute,  regulation, 
orders,  or  custom.  Held,  further,  that  an  oral  recommendation  was 
not  an  "official  record,"  and,  therefore,  could  not  be  the  basis  of  the 
award  of  a  medal.^     G.  17810,  Apr.  20,  1906. 

I  A  2  b.  Held,  that  the  President  has  no  authority  under  the  act 
of  April  23,  1904  (33  Stat.  274),  to  refuse  to  replace  a  medal  that  was 
awarded  under  the  joint  resolution  of  July  12, 1862  (12  Stat.  623),  and 
the  act  of  March  3,  1863  (12  Stat.  751),  when  the  same  is  presented 
for  that  purpose  by  its  owner.     0.  16913,  Sept.  21,  1904. 

I  A  2  c.  The  act  of  April  23,  1904  (33  Stat.  274),  authorizes  the 
Secretary  of  War  to  replace  medals  of  honor  that  had  been  issued 
under  the  joint  resolution  of  July  12,  1862  (12  Stat.  623),  and  the  act 
of  March  3,  1863.  Held,  that  the  word  "replace"  implies  the  loss, 
destruction,  or  surrender  of  the  old  medal.^     G.  16913,  July  28,  1906. 

1  A  2  d.  As  the  act  of  April  23,  1904  (33  Stat.  274),  eliminates 
the  element  of  time  in  making  recommendation  for  the  medal  of 
honor,  and  requires  the  award  to  be  based  upon  official  records  in  the 
War  Department :  Held,  that  the  establishment  of  an  extra-statutory 

*  See  20  Op.  Atty,  Gen.,  421,  in  which  advice  was  given  not  to  grant  the  medal  as 
when  the  application  was  received  nearly  28  years  after  the  gallant  conduct,  there  waa 
no  official  record  on  file  in  the  War  Department  to  substantiate  the  claim. 

See  24  Op.  Atty.  Gen.,  580,  in  which  it  is  held  that  the  fact  that  after  the  application 
or  recommendation  is  made,  the  applicant  leaves  the  service  does  not  prevent  the 
President  from  making  the  award. 

2  Cir.  22.  1905,  War  Dept. 

'  See  Cir.  36,  War  Dept.,  Aug.  22,  1904;  25  Ops.  Atty.  Gen.,  529,  Nov.  23,  1905. 


666  INSIGNIA  OF   MERIT  I  A  2   d  (l). 

limitation  that  the  recommendation  must  be  made  within  a  fixed 
time  limit  in  the  case  of  those  still  in  the  service  is  highly  inexpedient, 
and  should  not  be  attempted  in  the  form  of  an  executive  regulation.^ 
G.  16805,  Dec.  21,  190^;  19139,^  Feb.  8,  1906. 

I  A  2  d  (1 ) .  The  recommendation  for  a  medal  of  honor  was  not  made 
until  more  than  a  year  had  elapsed  after  the  gallant  conduct  upon 
which  it  was  based,  i.  e.,  July  1,  1863.  Held,  that  under  the  legis- 
lative rule  fixed  by  the  act  of  April  23,  1904  (33  Stat.  274),  if  it  shall 
appear  from  the  official  records  in  the  War  Department  that  an 
officer  or  enlisted  man  has  so  distinguished  himself  in  action  as  to 
entitle  him  to  the  award  under  the  act  of  March  3,  1863  (12  Stat.  751), 
the  award  may  be  made.     G.  16305,  Dec.  21,  1904. 

I  A  2  e.  As  the  joint  resolution  of  July  12,  1862  (12  Stat.  623), 
and  the  acts  of  March  3, 1863  (12  Stat.  751),  and  of  April  23,  1904  (33 
Stat.  274),  show  a  congressional  intent  to  provide  for  the  manual, 
personal  presentation  of  a  medal  of  honor :  Held,  that  the  application 
for  the  award  of  the  medal  in  the  case  of  a  deceased  person  can 
not  be  approved.  Held,  further,  that  if  after  the  application  has 
been  approved,  the  person  who  was  to  have  been  the  grantee  shall 
die,  it  may  be  given  to  his  heirs.  G.  17605,  Mar.  7,  1905;  P.  49, 
55,  Sept.,  1891,  and  52,  30,  Mar.,  1892. 

I  B.  In  view  of  the  fact  that  the  act  of  January  21,  1897  (29  Stat. 
494),  provides  that  the  acts  of  June  20,  1874  (18  Stat.  127),  and  June 
18,  1878  (20  Stat.  165),  and  the  act  of  May  4,  1882  (22  Stat.  57), 
empower  the  Secretary  of  the  Treasury  to  bestow  life-saving  medals 
upon  persons  making  signal  exertion  in  rescuing  and  succoring  the 
ship-wrecked  and  saving  persons  from  drowning  in  the  waters  over 
which  the  United  States  has  jurisdiction,  held,  on  the  request  of  the 
Secretary  of  the  Treasury  for  a  decision,  that  the  Quingua  River 
in  the  Philippine  Islands  is  a  body  of  water  ''over  which  the  United 
States  has  jurisdiction"  within  the  meaning  of  the  act  of  January  21, 
1897,  and  that  therefore  a  life-saving  medal  may  be  granted  for  the 
saving  of  life  in  that  river.     G.  27240,^  Nov.  28,  1910. 

I  C.  Held,  that  there  is  no  authority  of  law  for  the  preparation 
and  presentation  of  special  medals  for  distinguished  service  incident 
to  the  rescue  of  American  and  Spanish  prisoners  during  the  Philippine 
insurrection.     G.  12938,  July  31,  1902. 

I  D.  Medals  which  have  not  been  authorized  by  law  or  regulations 
can  not  be  worn  on  duty.     G.  5153,  Oct.  18,  1898. 

I  E  1.  A  surgeon  of  Volunteers,  not  attached  to  an  organization, 
accompanied  the  expeditionary  force  to  the  Philippine  Islands  in  1898 
and  continued  in  service  over  a  period  which,  had  he  belonged  to  a 
regiment  or  other  organization  of  Volunteers,  would  have  entitled  him 
to  a  congressional  medal.  Held,  that  a  surgeon  of  Volunteers  so  serv- 
ing in  the  Philippine  Islands  would  be  entitled  to  the  medal  author- 
ized by  the  act  of  June  29,  1906.     C.  14201,  Dec.  16,  1908. 

I E  2.  The  act  of  June  29, 1906  (34  Stat.  621),  authorizes  the  award 
of  a  medal  to  officers  and  enlisted  men  who  served  beyond  the  terms 
of  their  enlistments  to  assist  in  the  suppression  of  the  Phifippine  insur- 
rection. Held,  by  the  Secretary  of  War  that  those  men,  or  the  fami- 
lies of  those  men,  who  enlisted  or  reenlisted  in  the  Regular  Army  dur- 

1  U.  S.  V.  Symonda  (120  U.  S.,  46);  U.  S.  v.  Bishop  (120  U.  S.,  51);  Lowrey  v.  U.  S. 
(32  Ct.  Cls.,  259). 


INSIGNIA  OF   MERIT  II  A.  6G7 

ing  the  war  with  Spain  and  who  were  entitled  to  their  discharges  upon 
the  conclusion  of  the  war,  but  who  served  beyond  that  time  and  were 
subsequently  honorably  discharged,  or  who  died  in  the  service,  be 
considered  entitled  to  the  medals  provided  by  the  act  of  June  29, 1906. 
C,  14201,  Jan,  6,  1908. 

II  A.  Held,  that  the  act  of  February  9,  1891  (26  Stat.  737),  which 
provided  for  the  granting  of  certificates  of  merit,  is  retroactive.^ 
C.  im,  Mar.  18,  1895;  13084,  Nov.  13,  1903. 

II  B.  When  an  enhsted  man  belongs  to  a  regiment,  held,  that  the 
recommendation  of  the  regimental  commander  is  necessary  to  the 
award  to  him  of  a  certificate  of  merit.  This  recommendation  may  be 
based  upon  any  fact  or  facts  deemed  by  him  to  justify  the  award,  such 
as  the  recommendation  of  the  company  commander  or  any  other 
officer,  or  upon  any  other  authentic  mformation  brought  to  his 
knowledge.  C.  10679,  June  13,  1901;  13819,  Jan.  29,  1903;  13864, 
Feb.  2,  1903;  15391,  Dec.  15,  1903;  16095,  Mar.  26,  1906;  17222, 
Jan.  9,  1911. 

II  C.  Under  section  1216,  R.  S.,  as  amended  by  the  act  of  March 
29,  1892  (27  Stat.  12),  a  certificate  of  merit  may  be  given  to  any 
enlisted  man  who  shaU  distinguish  himself  in  the  service.  Held  that 
this  is  not  limited  to  distinguished  service  in  battle.  Held  further  that 
the  certificate  may  be  given  where  an  erdisted  man  participated  in 
subduing  a  fire  which  threatened  to  destroy  public  property.  G.  4IO8, 
May,  1898,  Held,  also  where  an  enlisted  man  saved  another  enlisted 
man  from  drowning.  C.  13086,  Aug.  7,  1902;^  13087,  Aug.  7,  1902; 
19139,  Feb.  8,  1906.  Held  that  where  an  enlisted  man  saved  from 
drowning  a  member  of  the  military  establishment  who  was  not  an 
enlisted  man  that  the  award  could  be  made.  C.  13088,  Aug.  7,  1902; 
18517,  Sept.  6,  1905. 

II  D.  An  enlisted  man,  while  serving  a  fraudulent  contract  of 
enlistment,  performed  an  act  of  gallantry,  for  which  a  certificate  of 
merit  was  awarded  by  the  President,  held,  that  as  the  status  of  the 
applicant  at  the  date  of  the  act  and  of  the  subsequent  award  was  that 
of  an  enhsted  man  who  was  rendering  legal  service,  the  award  was 
lawful  and  he  is  entitled  to  the  additional  pay  which  is  authorized  by 
the  statute.     G,  I6644,  July  25,  1904. 

II E.  Section  1216,  R.  S.,  as  amended  by  the  act  of  March  29, 1892 
(27  Stat.  12),  provides  ''that  when  any  enlisted  man  of  the  Army 
shall  have  distinguished  himself  in  the  service  the  President  may,  at 
the  recommendation  of  the  commanding  officer  of  the  regiment  or  the 
chief  of  the  corps  to  which  such  enlisted  man  belongs,  grant  him  a 
certificate  of  merit.''  Held,  that  a  retired  enlisted  man  is  an  "  enlisted 
man  of  the  Army"  within  the  meaning  of  this  statute  and  therefore 
eligible  for  a  certificate  of  merit.  The  recommendation  required 
should  come  from  the  commanding  officer  of  the  regiment  or  the  chief 
of  the  corps  to  which  such  enlisted  man  belonged.  G.  8445,  June, 
1900. 

II  F.  Held,  that  a  requirement  in  Army  Regulations  that  the 
recommendation  "must  originate  with  an  eyewitness"  is  an  interpola- 
tion not  authorized  or  caUed  for  by  the  original  statute,  section  1216, 
R.  S.,  as  amended  by  the  act  of  February  9,  1891  (26  Stat.  737),  and 
the  act  of  March  29,  1892   (27  Stat.  12),  and  an  instance  of  quasi 

1  See  McNamara  v.  U.  S.,  28  Ct.  Cls.,  416. 


668  INSIGNIA   OF   MERIT   II   G. 

legislation  unwarranted  in  an  Army  regulation.  P.  Ji.7,  152,  May, 
1891;  C.  19139,  Feb.  8,  1906. 

II  G.  Held,  that  a  certificate  of  merit  may  be  given  to  an  honorably 
discharged  soldier  with  pay  from  the  date  of  the  gallant  conduct 
for  which  the  certificate  was  granted  to  date  of  discharge,  if  the 
recommendation  was  made  before  the  soldier  was  discharged.  Held, 
further,  that  if  the  recommendation  was  not  made  until  after  the 
soldier's  discharge  the  certificate  can  not  be  granted.^  C.  12558, 
July  25,  1902;  16315,  May  9,  1904;  23262,  May  28,  1908. 

II  H.  Held,  that  the  word  "corps''  as  used  in  the  acts  of  February 
9,  1891  (26  Stat.  737),  and  of  March  29,  1892  (27  Stat.  12),  means 
"any  staff  corps  or  department  of  the  Army."  C.  8^45,  June  21, 
1904. 

II  H  1 .  An  unassigned  recruit  was  recommended  for  the  certificate 
of  merit.  Held,  that  The  Adjutant  General  was  the  "chief  of  the 
corps"  upon  whose  recommendation  award  might  be  based  within 
the  meanmg  of  section  1216,  R.  S.,  as  amended  by  the  act  of  March  29, 
1892  (27  Stat.  12).     C.  1'3978,  Jan.  20,  1903. 

II  H  2.  Held,  in  the  case  of  a  Philippine  Scout  whose  company  is 
not  a  part  of  a  battalion  or  regiment,  that  his  company  commander 
is  the  " chief  of  the  corps"  upon  whose  recommendation  the  certificate 
of  merit  may  be  awarded.  Held,  further,  that  if  a  Philippine  Scout's 
company  belongs  to  a  battalion  which  does  not  belong  to  a  regiment, 
the  battalion  commander  is  the  "chief  of  the  corps"  upon  whose 
recommendation  the  certificate  of  merit  may  be  awarded.  C.  16973, 
Oct  13,  1904. 

II  I.  Held,  that  under  the  law  which  controls  the  award  of  the 
certificate  of  merit,  viz,  section  17,  act  of  March  3,  1847  (9  Stat.  186) ; 
sections  3  and  4,  act  of  August  4,  1854  (10  Stat.  575);  sections  1216 
and  1285,  R.  S.;  act  of  February  9,  1891  (26  Stat.  737),  and  the  act  of 
March  29,  1892  (27  Stat.  12),  the  certificate  of  merit  may  not  be 
granted  for  gallant  conduct  by  a  commissioned  officer.  U.  22110, 
Nov.  15,  1907. 

II  K.  Held,  that  as  certificate-of-merit  pay  is  a  part  of  a  soldier's 
pay  it  is  subject  to  forfeiture  by  sentence  of  court-martial.  C.  1308, 
Apr.  30,  1895. 

III  A  1.  Held,  that  the  words  "in  their  own  right"  which  occur  in 
those  laws  which  authorize  the  wearing  of  certain  society  badges 
mean  "right"  because  of  their  own  service  or  because  of  their  kinship 
to  one  who  had  been  in  the  service.^     C.  14956,  Jan.  30, 1904. 

Ill  A  2  a.  Held,  that  there  is  no  authority  of  law  for  wearing  in 
uniform  the  badge  of  the  Society  of  Foreign  Wars.  O.  14956,  Sept. 
12,  1903. 

Ill  A  2  b.  Held,  that  the  insignia  of  the  Association  of  Military 
Surgeons  of  the  United  States  may  not  be  worn  by  officers  or  enlisted 
men  in  uniform.     C.  15610,  Apr.  6,  1905. 

Ill  B  1.  The  President  prescribes  the  uniform  of  officers  and 
enlisted  men  under  section  1296  R.S.  Held,  that  the  manner  in  which 
service  in  war  generally,  or  service  in  a  particular  war,  or  service  in  any 
particular  military  operations  shall  be  shown,  is  entirely  within  the 
Executive  discretion,  and  he  may  cause  it  to  be  indicated  by  a  service 

1  See  24  Op.  Atty.  Gen.,  127,  Sept.  23, 1902,  and  IX  Comp.  Dec,  160,  Oct.  24, 1902. 

2  23  Op.  Atty.  Gen.,  454. 


INSIGNIA  OF   MERIT — INSPECTOR   GENERAL^S   DEPARTMENT.       669 

stripe  as  at  present  prescribed  for  enlisted  men,  cr  by  a  suitable  metallic 
device  to  be  worn  as  an  article  of  uniform  ^n  a  manner  to  be  prescribed 
by  liim  in  suitable  uniform  regulations.  He  may  cause  such  devices 
or  strij)es  to  be  procured  by  the  Quartermaster's  Department  and 
issued  to  the  soldier  to  be  charged  in  liis  clothing  allowance,  or  he 
may  treat  it  as  an  article  of  equipage  and  issue  it  free  to  enlisted  men 
to  be  replaced  at  the  soldier's  expense  if  lost  by  his  own  fault  or  care- 
lessness. C,  23876,  Sept  21,  1908;  17243,  Nov,  29,  1904.  The 
Quartermaster's  Department  may  supply  these  badges  or  devices  to 
officers,  at  cost  price,  who  may  wear  them  in  pursuance  of  appropriate 
uniform  regulations.  Such  a  distinctive  baa^e  may  not  be  issued  to 
officers  and  enUsted  men  of  the  volunteer  armies  who  are  no  longer  in 
the  mihtary  service,  as  such  issue  would  constitute  a  donation  of 
property  and  would  for  that  reason  be  beyond  the  power  of  the 
Executive.  C.  14201,  Feb.  25,  1903;  17243,  Nov.  29,  1904;  23839, 
Oct.  8,  1908,  and  May  30,  1910.  Held,  further,  that  as  such  badges 
constitute  stores  and  supplies  within  the  meaning  of  section  17  of  the 
act  of  January  21,  1903  (32  Stat.  775),  they  may  be  issued  to  the 
governors  of  the  several  States  for  the  use  of  their  Organized  MiUtia 
as  part  of  the  uniform.  C.  I4148-F,  Oct.  13,  1908;  23839,  Oct.  26, 
1908,  arid  Dec.  2,  1908. 

Ill  B  2.  Held,  that  any  officer  or  enhsted  man  who  served  in  a  cam- 
paign, service  in  which  is  recognized  by  a  campaign  badge,  is,  other 
conditions  being  compUed  with,  entitled,  to  such  badge  if  he  was  in  the 
service  at  the  date  when  service  in  such  campaign  was  designated  for 
recognition  by  said  badge,  or  if  he  was  not  in  the  service  at  the  date 
of  such  designation  but  is  now,  he  shall  likewise  be  entitled  to  the 
badge.     C.  17243,  Sept.  23,  1911. 

Ill  B  3.  An  organization  entitled  ''Batson's  squadron  of  Philippine 
cavalry"  was  formed  from  among  the  civilian  employees  of  the  Quar- 
termaster's Department  during  the  Philippine  insurrection.  Its 
employment  was  assimilated,  in  all  of  its  essential  incidents,  to  that 
of  the  Philippine  Scouts  and  guides  whose  services  are  obtained  by 
contract  and  paid  for  out  of  the  appropriation  for  incidental  expenses. 
But  the  squadron  was  actually  paid  out  of  insular  funds  furnished  for 
that  purpose  to  the  Quartermaster's  Department.  Held,  therefore, 
that  the  members  of  that  squadron  are  not  entitled  to  the  Phihppine 
campaign  badge.     C.  17683,  Mar.  15,  1905. 

Ill  C.  A  soldier  became  entitled  to  a  first-class  gunner's  badge,  but 
was  discharged  before  it  was  awarded.  Held,  that  the  fact  that  he  has 
since  left  the  Army  should  not  be  considered  to  be  a  bar  to  his  receiv- 
ing the  badge.     C.  18563,  Sept.  I4,  1905. 

INSPECTION. 

Bonds See  Bonds  II  Q. 

Militia See  Militia  VI  D  1. 

INSPECTOR  GENERAL'S  DEPARTMENT. 

Inspection  of  funds  by See  Army  I  B  2  b  (2)  (a). 

Redetail  in See  Office  III  Did. 

Reports  of. See  Army  I  G  3  a  (3). 

^  See  G.  O.  No.  4,  War  Dept.,  1905,  as  amended  by  G.  O.  129,  1908.  See  also  Cir. 
82,  War  Dept.,  1908,  and  G.  O.  96  and  97,  War  Dept.,  1909. 


670  INSTEUCTOKS INTERVENTION. 

INSTRUCTORS. 

Military  at  colleges See  Military  instruction  II  B  1  to  2. 

Service  schools See  Absence  I  B  Ig  (1);  (2). 

INSUBORDINATION. 

See  Articles  of  War  LXV  A. 

INSULAR  BUREAU. 

Bonds  filed  in See  Bonds  II  O. 

INSULAR  POLICE. 

Unauthorized  force See  Militia  IV  C. 

INSURANCE. 

Buildings  on  target  range See  Militia  VI  C  1  e. 

Expense  of  contractor See  Contracts  XXVII. 

INTENT. 

Burglary See  Articles  op  War  LXII  C  7. 

Challenge See  Articles  op  War  XXVI  A. 

Congressional,  as    to    treatment  of  general 

prisoners See  Discharge  II  B  2  a. 

Desertion See  Articles  op  War  L  A. 

Desertion  I;  I  A;  V  F  15;  XX  A;  B. 

Discipline  II  D  7;  IX  I  1;  XI  A  4  a. 

Embezzlement See  Articles  op  War  LXII  C  2. 

Homicide See  Discipline  II  D  11  a. 

Larceny See  Discipline  IX  I  2;  XI  A  8  a. 

Misappropriation ."  See  Discipline  II  D  16  a. 

Mutiny See  Articles  op  War  XXII  A. 

Discipline  XIV  E  9  d  (1)  (6). 
Place  of  residence See  Tax  I  E. 

Residence  I. 

INTEREST. 

See  Articles  op  War  LXII  C15;  E. 

In  land,  how  conveyed See  Public  property  I  A  1. 

Loaning  money  at See  Civilian  employees  XVI  A. 

Articles  of  War  LXI  B  11. 
Not  allowed  on  claims See  Claims  III. 

INTERNAL  REVENUE. 

Appropriation  for  paying See  Appropriations  XXXIX. 

INTERMENT. 

Officer See  Pay  and  allowances  II  A  2  c  to  d. 

INTERNED   PRISONERS. 

Finger  prints  of,  improper See  Army  II  K  1  h  (1). 

INTERVENTION. 

In  Cuba See  War  I  C  8  c  (1)  to  (2). 

In  Panama See  War  I  C  8  c  (1). 


INTOXICANTS  I.  671 

INTOXICANTS.  1 
I.  DEFINED Page67i 

A.  Beer. 
n.  PURCHASE,  SALE,  OR  USE  OF,  ON  MILITARY  RESERVATION. 

A.  May  be  Shipped  Into  Such  Reservation. 

1.  Rule  as  to  deliveries  in  original  packages. 

2.  Order  and  delivery  in  email  package Page  672 

B.  Commanding  Officer  Decides  Whether  Liquor  is  Intoxicating. 

C.  Use  of,  at  Bachelors'  Messes. 

D.  Use  of,  at  State  Maneuver  Camp. 

E.  Restraint  of  Sale  of  Opium. 

F.  Jurisdiction  op  Offense.    (This  applies  also  to  Indian  country). 
m.  INTRODUCTION  OF,  INTO  INDIAN  COUNTRY. 

A.  Indlan  Country  Defined Page  673 

1.  Introduction  forbidden  if  Indian  in  any  degree  under  control  of  Indian 
agent. 

B.  Power  of  Secretary  op  War  to  Issue  License. 

1.  Exception  when  to  be  used  by  Army  or  for  sacrament Page  674 

C.  Duty  of  Commanding  Officer. 

1.  May  arrest  civilians  to  prevent  introduction. 

2.  May  destroy  liquor. 

D.  Duty  of  Officers. 

1.  To  destroy  liquor  found. 
IV.  SALE  AT  NATIONAL  HOME  FOR  DISABLED  VOLUNTEERS..  Page 675 

I.  In  the  absence  of  a  legislative  definition  of  the  phrase  ''intoxi- 
cating liquors,"  and  having  regard  to  the  very  general  language  used 
in  the  act  of  February  2,  1901,  held,  that  the  sale  of  a  beverage  at 
post  exchanges  which  contains  an  appreciable  quantity  of  alcohol, 
would  fall  witliin  the  prohibition  of  the  statute.  C.  18094,  June  5, 
1905;  19521,  Apr,  14,  1906;  19768,  May  19,  1906;  23027,  Apr.  3, 
1908. 

1  A.  Section  17  of  the  act  for  increasing  the  efficiency  of  the  Army 
of  the  United  States,  etc.,  approved  March  2,  1899  (30  Stat.  981), 
provides  ''that  no  officer  or  soldier  shall  be  detailed  to  sell  intoxicat- 
ing drinks,  as  a  bartender,  or  otherwise,  in  any  post  exchange  or  can- 
teen *  *  *  ".  Held,  that  beer  is  an  intoxicating  drink  within 
the  meaning  of  this  section.^     C.  5992,  Mar.,  1899. 

II  A.  There  is  no  law  forbidding  the  shipment  of  intoxicating 
Uquors  to  military  reservations  as  such.     C.  13829,  Dec.  26,  1902. 

II  A  1.  The  act  of  February  2,  1901  (31  Stat.  758),  does  not  pro- 
hibit the  use,  but  it  does  prohibit  the  sale,  of  beer,  wine,  or  any 
intoxicating  Hquor  upon  any  premises  used  for  military  purposes  by 
the  United  States,  lietd,  therefore,  that  the  delivery  on  a  military  reser- 
vation, by  railroad  and  express  companies  of  Hquors,  in  original  pack- 
ages, to  bona-fide  consignees  for  their  own  use,  would  not  be  an 
infraction  of  the  law;  otherwise,  however,  if  general  consignments  of 
fiquors  were  made  by  dealers  to  an  express  company  to  be  delivered 
to  parties  who  had  not  ordered  the  same  and  were  unknown  at  the 
time  to  the  dealers  and  the  express  company,  the  goods  to  be  paid 
for  on  delivery.     C.  14323,  Mar.  27,  1903. 

^  Prepared  by  Lieut.  Col.  John  Biddle  Porter,  judge  advocate,  assistant  to  the  Judge 
Advocate  General,  U.  S.  A. 

2  But  see  act  of  Feb.  2,  1901  (31  Stat.  748). 


672  INTOXICANTS   II   A  2. 

II  A  2.  Held,  that  for  a  person  to  take  orders  on  a  military  reserva- 
tion from  enlisted  men  for  whisky  in  small  quantities  and  then  to 
deliver  the  same  would  constitute  an  express  violation  of  section  38 
of  the  act  of  February  2,  1901  (31  Stat.  758).  0.  18037,  Apr.  26, 
1909. 

II  B.  In  cases  where  the  question  of  whether  certain  specific 
beverages,  alleged  to  be  nonintoxicating,  might  be  sold  at  post  ex- 
changes, has  been  referred  to  the  War  Department  for  decision, 
lield,  that  the  department  should  not  assume  the  determination  of 
such  questions,  which  are  left  under  the  regulations  (par.  357,  A.  K., 
1910),  to  commanding  officers;  that  no  hard  and  fast  rule  exists  by 
which  the  intoxicating  property  of  a  beverage  may  be  determined  by 
the  percentage  of  alcohol  therein  and  suggested  that  the  fact  of  whether 
or  not  the  sale  of  the  specific  beverage  was  permitted  in  prohibition 
States  might  serve  as  a  guide  to  post  commanders.  C.  18094,  June  5, 
1905;  22782,  Feb.  27,  1908;  23027,  Apr.  3,  1908,  May  7,  1908,  June  4, 
1908,  July  25  and  30,  1908,  Mar.  1,  1909,  and  Aug.  22,  1911. 

II  C.  Held,  that  the  act  of  February  2,  1901  (31  Stat.  758),  in  so 
far  as  it  prohibits  the  sale  of  or  dealing  in  certain  intoxicants  in  a 
post  exchange  or  canteen  or  Army  transport  or  upon  any  premises 
used  for  military  purposes  by  the  United  States,  is  not  intended  to 
apply  to  the  officers'  messes  established  at  military  posts  for  the  ac- 
commodation of  unmarried  officers  and  others,  who  do  not  desire 
to  establish  individual  messes  or  eating  arrangements  in  their  own 
quarters.     C.  12779,  Apr.  5,  1909. 

II  D.  Where  the  Federal  Government  accepted  the  use  of  a  State 
maneuver  camp  for  mfiitary  maneuvers  in  which  the  troops  of  the 
State  were  to  join  the  Kegular  Army  for  a  short  period,  lield,  that 
during  the  period  of  the  joint  maneuvers  the  laws  of  the  State  in 
regard  to  the  sale  of  intoxicants  within  the  limits  of  the  maneuver 
camp  should  govern  in  that  portion  of  the  camp  used  by  the  State 
troops,  but  that  in  the  remainder  of  the  camp,  and  during  the  period 
of  the  sole  occupancy  of  the  maneuver  camp  by  the  Federal  forces, 
the  provisions  of  the  act  of  February  2,  1901  (31  Stat.  758),  for- 
bidding the  sale  of  intoxicating  liquors  '^on  any  premises  used  for 
military  purposes  by  the  United  States"  were  operative.  G.  19983, 
June  29,  1906. 

HE.  It  having  been  reported  that  the  unrestricted  sale  by  civilians 
of  opium  was  causing  injury  to  the  military  service  at  Fort  Sherman, 
Idaho — lield,  that  such  sale  might  be  restrained  by  Congress  under 
its  general  power  of  legislation  over  the  Territories;^  or  that,  in  the 
absence  of  action  by  Congress,  the  legislature  of  the  Territory  would 
be  authorized  to  regulate  the  same;  and  that  through  one  of  these 
two  means  the  evil  might  be  abated.     P.  30,  72,  Feb.,  1889. 

II  F.  Under  the  act  of  July  23,  1892  (27  Stat.  260),  amending 
section  2139,  R.  S.,  the  Secretary  of  War  may  give  authority  in 
writing  for  the  introduction  of  intoxicating  liquors  into  the  Indian 
country.  But  this  authority  is  subject  to  the  restriction  of  the 
existing  act  of  June  13,  1890,  so  that  the  Secretary  could  not  properly 
permit  the  introduction  of  such  liquors  into  Indian  country  within  a 
prohibition  State  with  a  view  to  their  being  sold  or  supplied  to  enlisted 
men.     Where  certain  ''Hop  Tea  Tonic,"  afieged  to  be  intoxicating. 


See  Natl.  Bk.  v.  Co.  of  Yankton,  101  U.  S.,  133. 


i 


INTOXICANTS   III  A.  673 

was  attempted  to  be  introduced  at  the  post  of  Fort  Yates,  situated 
upon  an  Indian  reservation  in  North  Dakota,  exchisive  jurisdiction 
over  which  is  vested  in  the  United  States,  held,  that  the  admission  or 
sale  of  such  liquor,  if  intoxicating,  would  be  an  offense  against  the 
United  States,  not  against  the  State,  since  the  act  of  August  8,  1890, 
providing  that  intoxicating  liquor  shipped  into  a  State  shall  be  sub- 
ject to  the  operation  of  the  State  laws  as  soon  as  it  enters  the  territoiy 
of  the  State,  can  not  apply  to  a  district  over  which  the  United  States 
has  exclusive  jurisdiction,  and  therefore  that  the  State  authorities 
would  not  be  empowered  to  make  a  seizure  of  such  liquor.  P.  62, 
405,  Nov.,  1^93;  0.  12941,  Sept.  13,  1902;  14323,  Mar.  27,  1903; 
18037,  May  23,  1905;  19219,  Feb.  19,  1910. 

Ill  A.  Ileld,  that  the  term  ''Indian  country,"  as  enaployed  in  the 
statutes  regulating  trade  and  intercourse  with  the  Indians  (see,  par- 
ticularly, Ch.  IV,  Title  XXVIII,  R.  S.),  might  i)roperly  be  defined 
in  general  as  including  the  following  territory,  viz:  Indian  reserva- 
tions occupied  by  Indian  tribes;  other  districts  so  occupied  to  which 
the  Indian  title  has  not  been  extinguished ;  any  districts  not  in  other 
respects  Indian  country,  over  which  the  operation  of  those  statutes 
may  be  extended  by  treaty  or  act  of  Congress.*     R.  39,  214,  Oct.,  J 877. 

Ill  A  1.  Held,  that  the  introduction  of  liquor  into  the  Indian 
country  is  forbidden  by  section  2139  R.  S.  as  amended,  where  the 
Indians  are  in  any  degree  under  the  control  or  charge  of  an  Indian 
agent.2     0.  25468,  Aug.  23,  1909. 

Ill  B.  The  Secretary  of  War  has  no  general  authority  to  license  the 
introduction  of  spirituous  liquors  into  the  Indian  country.  Under  sec- 
tion 2139,  R.  S.,  and  the  act  of  July  23, 1892  (27  Stat.,  260),  amending 
that  section  and  extending  it  to  beer  and  other  malt  liquors,^  the 
Secretary  of  War  is  without  authority  to  permit  the  introduction  into 
that  country  of  any  spirituous  or  malt  liquors  intended  for  sale.  P. 
55,  172,  283,  380,  Aug.  and  Sept.,  1892;  56,  31,^  Oct.,  1892;  0.  506, 
Oct.  7,  1894.  The  statutes  cited  do  not  authorize  the  Secretary  of 
War  to  license  the  sale  of  spirituous  or  malt  liquors  in  the  Indian 
country.  ^Vhether  a  particular  article  is  in  fact  spirituous  or  malt 
hquor  is  a  question  for  the  courts,  and  not  the  War  Department,  to 
decide.  C.  1747,  Nov.,  1895;  7813,  7981,  Mar.  and  Apr.,  1900; 
10810,  July  10, 1901;  11160,  Aug.  28  and  Sept.  10, 1901;  11190,  Sept. 
5,  1901;  11966,  July  25,  1902;  20195,  Aug.  9,  15,  and  Sept.  25, 1906; 
23027,  Apr.  3,  1908. 

^  See  this  opinion  as  adopted  and  incorporated  in  G.  O.  97,  Hdqrs.  of  the  Army, 
1877;  also,  in  the  same  connection,  14  Op,  Atty.  Gen.,  290;  United  States  v.  Forty- 
three  Gallons  of  Whisky,  3  Otto,  188;  Bates  v.  Clark,  5  id.,  204;  United  States  v. 
Seveloff,  2  Sawyer,  311. 

2  See  Renfrow  v.  United  States,  1895  (3  Okla.,  161);  and  United  States  v.  Fling, 
870  (25  Fed.  Cas.,  No.  15124). 

See  also  191  Fed .  Rep. ,  673,  where  it  was  held  that  the  portion  of  Oklahoma  which  was 
formerly  the  Indian  Territory  did  not  cease  to  be  Indian  country  on  the  admission  of  the 
State,  nor  did  such  admission  affect  the  application  to  that  part  of  the  State  of  sec.  2139, 
R.  S.,  or  of  tlie  act  of  Jan.  30, 1897  (29  Stat.  506),  relating  to  the  sale  of  liquor  to  Indians 
and  its  introduction  into  Indian  country.  Also  held,  that  the  power  of  Congress  over 
Indian  relations  is  plenary.  Also  held,  that  the  provision  in  the  Oklahoma  enabling 
act  (34  Stat.  269)  that  the  State  constitution  shall  prohibit  the  manufacture  or  sale 
of  intoxicating  liquor  in  certain  portions  of  the  State  did  not  repeal  that  portion  of  the 
act  of  Jan.  30,  1897  (29  Stat.  506),  which  made  it  a  crime  to  introduce  liquor  into  the 
Indian  country. 

3  See  now  this  section  as  amended  by  act  of  Jan.  30,  1897  (29  Stat.  506). 

31106—12 43 


674  INTOXICANTS  III   B  1. 

Ill  B  1.  Prior  to  the  act  of  July  23,  1892 '  (27  Stat.  260),  no  formal 
rule  or  regulation  governing  the  subject  of  the  introduction  of  liquor 
into  the  Indian  country  was  promulgated  by  the  War  Department, 
but  shortly  after  the  passage  of  the  act  the  Secretary  of  War  decided 
that  no  permits  would  be  granted  except  in  cases  where  the  liquor 
was  to  be  used  in  or  connected  mth  the  United  States  Army.  This 
decision  was  adhered  to  until  October,  1897.  Since  the  latter  date 
it  has  been  the  view  of  the  department  that  although  the  act  should 
not  be  construed  to  establish  in  the  War  Department  a  license  bureau 
to  regulate  the  liquor  traffic  in  the  Indian  country,  yet  permits  should 
be  given  to  introduce  wine  into  the  Indian  country  for  sacramental, 
hospital,  and  in  certain  cases  for  private  medicinal  use  where  there 
would  be  some  guaranty  that  the  privilege  would  not  be  abused.  A 
permit  to  introduce  wine  for  sacramental  purposes  is  granted  only 
upon  the  application  of  a  minister  of  the  Gospel  having  charge  of  a 
congregation  or  district  in  the  Indian  country,  and  only  when  for- 
warded to  the  War  Department  through  the  applicant's  ecclesiastical 
superior,  or  upon  other  evidence  of  authenticity.  The  authority  of 
the  War  Department  to  issue  permits  under  the  statutes  covering 
the  matter  has  in  practice  been  viewed  as  limited  to  permits  to  intro- 
duce intoxicating  liquor  into  the  Indiaji  country  and  as  not  extending 
even  by  implication  to  permits  for  its  sale.  Thus  repeatedly  Jield 
that  permits  to  individuals  to  introduce  into  the  Indian  country  any 
kind  of  intoxicating  liquor,  intended  for  sale  either  as  a  beverage  or 
by  druggists  for  medicinal  purposes,  can  not  legally  be  granted.  0. 
2399,  24O6,  2571,  2795,  July  to  Dec,  1896;  SIJ^O,  SlfiJ^,  3716,  Apr.  to 
Dec,  1897;  4002,  4105,  May,  1898;  6857,  6900,  Aug.  and  Sept.,  1899; 
4105,  June,  1900;  7063,  Dec  31, 1910,  July  26,  1911;  17024,  Jan.  16, 
1912. 

Ill  C  1.  Under  section  2150,  R.  S.,  a  military  commander  may  be 
authorized  and  directed  hy  the  President  to  arrest  by  military  force 
and  deliver  to  the  proper  civil  authorities  for  trial,  any  white  persons 
or  Indians  who  may  be  in  the  Indian  country  engaged  in  furnishing 
liquor  to  Indians  in  violation  of  law;  as  also  to  prevent,  hy  military 
force,  the  entry  into  such  country  of  persons  designing  to  introduce 
liquor  therein  contrary  to  law.  Held,  that  this  authority  to  prevent 
was  clearly  an  authority  to  arrest,  where  arrests  were  found  necessary 
to  restrain  persons  attempting  to  introduce  liquor  or  other  inhibited 
property.     R.  42,  192,  Mar.,  1879. 

Ill  C  2.  In  view  of  the  duty  devolved  by  section  2140,  R.  S.,  upon 
"any  person  in  the  service  of  the  United  States,''  to  take  and  destroy 
spirituous  liquors  in  the  Indian  country,  held,  that  a  post  commander 
in  such  country  who  seized  and  destroyed  a  quantity  of  such  liquors 
introduced  into  such  country  without  the  authority  of  the  Secretary 
of  War,  but  not  found  within  the  limits  of  his  mihtary  command,  had 
not  exceeded  his  powers.     R.  31,  205,  Feh.,  1871. 

Ill  D  1.  In  view  of  the  positive  terms  of  section  2140,  R.  S.,  an 
officer  of  the  Army  not  only  may  but  should  "take  and  destroy  any 
ardent  spirits  or  wme  found  in  the  Indian  country,  except  such  as  may 
be  introduced  therein  by  the  War  Department."  The  section  im- 
poses this  as  a  "duty"  upon  "any  person  in  the  service  of  the  United 
States" — including  of  course  military  as  well  as  civil  officials.     Held, 

1  This  act  has  been  amended  by  the  act  of  Jan.  30,  1897  (29  Stat.  506). 


INTOXICANTS — JOINT  ENCAMPMENT.  675 

however,  that  the  authority  given  by  the  statute  to  destroy  liquor 
brouglit  into  an  Indian  reservation  did  not  authorize  the  destruction 
by  the  military  of  a  building,  the  private  property  of  a  citizen,  in 
which  the  liquor  was  found  stored.     R,  35 y  SSO,  Avr.,  1874. 

IV.  The  premises  occupied  by  the  National  Home  for  Disabled 
Volunteer  Soldiers  (incluaing  the  various  branches  thereof)  are  not 
•premises  used  for  military  purposes"  within  the  meaning  of  section 
38,  act  of  February  2,  1901,  forbidding  the  sale  of  intoxicants.  C. 
12817,  July  2,  1902. 

CROSS   REFERENCE. 

Use  of. See  Articles  op  War  XXXVIII  A. 

Introduction  into  Indian  country See  Army  II  C. 

rirmits  for  introduction  into  Alaska  not 

authorized. See  Territories  III  E. 

Prohibition  laws See  Public  property  V  F  1  a  (1). 

INVENTION. 

Property  right See  Patent  VI  A. 

INVESTIGATION. 

Boards  of. See  Discipline  XVIII  A. 

Court  of  inquiry See  Articles  op  WarCXV  A;  B;  CXIX  A; 

B;  CXXI  A. 

Department  commander See  Articles  op  War  LXXII  I. 

Oaths  administered See  Opfice  III  A  8  b  (1.) 

Regimental  court See  Articles  op  War  XXX  A. 

IRRIGATION. 

License  for See  Public  property  VIII  A  4  d. 

Military  reservation See  Public  property  I  A  1. 

Right  of  way  for See  Public  property  VI  B  to  E. 

ISSUE. 

Public  property  to  Militia See  Militia  IX  A ;  A  1 ;  2 ;  2  a. 

JEOPARDY. 

Twice  in See  Articles  op  War  CII  A  tol. 

JOINT  AND  SEVERAL  BOND. 

See  Bonds  I  M  11. 
When  required See  Bonds  I  Q. 

JOINT  ENCAMPMENT. 

See  Militia  II  to  III;  VI  B  2  to  C. 
Payment  of  Militia  at See  Militia  XI  C. 


676  JUDGE   ADVOCATE JUEISDICTION. 

JUDGE  ADVOCATE. 

Department — Signing  of  charges  by See  Discipline  II  D  12  a  (1). 

General  court-martial See  Discipline  IV  A  to  O. 

General  court-martial,  signing  of  charges  by.  .See  Discipline  II  D  12  a. 

General  court-martial,  detail  of. See  Discipline  III  C  2  to  5. 

Military  commission See  War  I  C  8  a  (3)  (d)  [1]. 

Service  of  subpoena See  Discipline  X  F  1 ;  2. 

JUDGE  ADVOCATE  GENERAL. 

Duties  of. - See  Army  I  G  3  a  (4)  to  (5). 

Does  not  render  opinions  on  matters  that 

relate  only  to  the  States See  Army  I  G  3  a  (4)  (a)  [4] 

See  Militia  XXI. 

Grounds  for  recommending  clemency See  Pardon  VI. 

Discipline  XV  F  to  G. 

Record  of  general  court-martial See  Discipline  XV  to  XVI. 

Record  of  military  commission See  War  I  C  8  a  (3)  (c)  [3]. 

Revision  of  court-martial  records See  Discipline  XV  to  XVI. 

Signing  of  charges  by See  Discipline  II  D  12  a  (1). 

JUDICIAL  NOTICE. 

Amnesty See  Discipline  IX  F  1  a. 

Printed  orders See  Discipline  XI  A  17  a  (2)  (6)  [1]. 

Time  of  war See  Discipline  II  D  15  a. 

JURISDICTION. 

Attaching  of See  Command  V  B  2  a. 

Board  of  review See  Army  I  G  3  d  (2)  (a). 

Bridges See  Navigable  waters  III  A  1. 

Cession  of See  Command  V  A  3  c  (1)  f . 

Civil  court See  Discharge  VII  B. 

Department  commander  over  troops^  tempo- 
rarily in  department '. See  Articles  of  War  LXII  H. 

Double  amenability See  Articles  of  War  LIX  D  ;   CIIC. 

Civil  court  over  retired  officer See  Retirement  I  G  2  d . 

Over  civilians  by  general  court-martial See  Articles  op  War  LXIIl  A  to  E. 

Comity  between  civil  and  military See  Discipline  III  E  4. 

See  Articles  of  War  LIX  D. 
Court-martial  can  not  pass  on  question  of 

contract See  Pay  and  allowances  I  C  2. 

Court-martial,  over  cadets See  Army  I  D  3  a. 

Enforce  statutes See  Navigable  waters  IX  to  X. 

General  court-martial See  Discipline  VIII  A  to  I  2 ;  HID;  XV 

CI;  I  1. 

General  court-martial  over  murder See  Articles  op  War  LXII  A. 

Military  commission See  War  I  C  8  a  (3)  (6)  to  (d). 

Military  courts See  Articles  of  War  LVIII  A. 

Discipline  XIV  E  9  a  (13). 
Military  reservation. See  Army  I  E  5. 

Public  property  III  A  1;  V  to  VI. 

Over  questions  of  carrying  weapons See  Arms  II. 

Over  soldier See  Discharge  XXII  A;  B. 

Presumption  that  court  has See  Discipline  XV  C. 

Retiring  board See  Retirement  I  B  1  c  to  d. 

Retired  enlisted  men See  Retirement  II  B  3  to  4. 

Reviewing  authority See  Discipline  XIV  C  1;  D. 

Sale  of  intoxicants  on  reservations See  Intoxicants  II  F. 

Summary  court See  Discipline  XVI  E  2. 

Volunteer  after  muster  out  of  organization.  .See  Volunteer  Army  IV  C  to  D. 


JURY  DUTY — LAW:  SYNOPSIS.  677 

JURY  DUTY. 

Liability  o/ojfficers  and  civilian  employees  to.  See  Civilian  employees  III  A. 

JUSTICE  OF  THE  PEACE. 

Officer  as See  Office  IV  A  2  d  (2)  (6). 

LABOR  AND  MATERIAL-MEN. 

See  Contracts  XX  to  XXI. 
How  affected  by  modification  of  bond See  Bonds  I  M  7. 

LABORERS. 

See  Eight-hour  law  I;  VII. 

Surgeon  General's  office See  Appropriations  LIV. 

Without  advertising See  Contracts  III  B. 

LAND. 

See  Public  property  II  to  III. 

Purchase  of. ^ See  Navigable  waters  X  D  to  E. 

See  Appropriations  III. 

LARCENY. 

By  soldier See  Command  V  A  2  e. 

Hay  on  military  reservation. See  Command  V  A  3  g. 

Intent See  Discipline  XI  A  8  a. 

Pardon  of. See  Pardon  VII  A. 

Public  money See  Claims  XII  Q. 

Statement  by  accused See  Discipline  IX  I  2. 

LAUNDRY. 

Construction  of. See  Appropriations  XVII. 

Cost  of  operation See  Pay  and  allowances  I  C  6  b  (5). 

Debts  to See  Government  agencies  IV. 

Establishment  of. See  Government  agencies  I  A. 

Failure  to  pay  debt  to See  Articles  of  War  LXII  D. 

Government  work See  Government  agencies  I  E. 

Heat  furnished  to See  Government  agencies  II  J  10. 

Military  prison See  Appropriation  XXXVI  B. 

LAW. 
I.  STATUTES. 

A.  Revised  Statutes. 

1.  Are  a  single  act  of  Congress  dated  June  22,  1874 Page  678 

2.  Do  not  require  publication  in  General  Orders  to  become  effective  on 

Army. 

3 .  Acts  of  a  temporary  character  that  were  not  included  were  not  repealed . 

B.  Construction  of. 

1.  "May"  equivalent  to  "shall"  or  "must." 

a.  In  statutes  conferring  power  upon  public  officer. 

b.  In  appropriation  act Page  679 

2.  "Authorized"  may  mean  "required"  or  "directed." 

3.  If  details  are  prescribed,  they  must  be  executed  without  variance. 

4.  Computation  of  time  from  act  done  excludes  date  of  act Page  680 

a.  Reviving  of  act  lapsed  due  to  passage  of  time. 

5.  Section  3716,  Revised  Statutes,  relates  to  advertising  and  not  to  pur- 

chase. 


678  LAW  I  A  1. 

I.  STATUTES— Continued. 

B.  Construction  of — Continued. 

6.  Remark  by  Member  of  Congress,  reports  of  committees,  etc.,  can  not  be 

safely  followed  in  construing  law. 

7.  Articles  of  War. 

a.  Penal  and  construed  strictly Page  681 

8.  Authority  to  install  lights  is  authority  to  lay  conduit   for   electric 

current. 

9.  Permanent  legislation  in  appropriation  bill. 
n.  REGULATIONS. 

A.  Army  Regulations. 

1.  Three  classes — described. 

a.  No  statutory  sanction  for  regulations  as  a  whole Page  682 

b.  When  in  conflict  with  statutes  they  are  null. 

c.  Can  not  grant  legislative  authority Page  683 

d.  Can  not  occupy  a  field  already  occupied  by  statute. 

e.  Regulations  founded  on  necessity.  • 

(1)  Issue  of  rations  to  flood  and  famine  sufferers. 

f.  Not  retroactive  unless  specifically  provided. 

g.  In  furtherance  of  statutes. 

(1)  Do  not  extend  to  subjects,  control  of  which  is  constitu- 
tionally vested  in  Congress. 

I  A  1.  The  Revised  Statutes  are  a  single  act  of  Congress,  which, 
in  the  absence  of  any  special  provision  as  to  the  date  on  which  the 
same  (or  any  part  of  the  same)  should  take  effect,  went  into  operation 
on  the  day  of  its  approval  by  the  President — June  22,  1874.^  The 
date  of  the  certificate,  pubhshed  with  the  same,  of  the  Secretary  of 
State,  viz,  February  22,  1875,  simply  fixes  the  time  at  which  the 
contents  of  the  printed  volume  became  evidence  of  the  laws  therein 
contained.     R.  36,  630,  Aug.,  1875. 

I  A  2.  The  laws  relating  to  the  Army,  embraced  in  the  Revised 
Statutes,  became  operative  as  to  the  Army  upon  the  approval  by  the 
President  of  the  body  of  the  revision,  irrespective  and  independently 
of  any  publication  of  such  laws  in  general  orders.  R.  36,  666,  Sept, 
1875. 

I  A  3.  Held,  that  an  act  of  1856,  authorizing  the  transfer  of  certain 
lands  in  Florida  (which  had  been  reserved  for  military  purposes)  to 
the  Secretary  of  the  Interior,  with  the  consent  of  the  Secretary  of 
War,  and  their  disposition  and  sale  as  public  lands — belonged  to  the 
class  of  '* provisions  of  a  local  or  temporary  character"  indicated  in 
the  proviso  to  section  5596,  R.  S.,  and  was  therefore  not  repealed  by 
such  statutes,  but,  having  remained  unexecuted,  might  legallv  be 
executed  at  this  time  (1878).     R.  1^1,  215  Apr.,  1878. 

I  B  1  a.  It  is  well  settled  that  the  word  ^^may,'"  in  a  statute  con- 
ferring power  upon  a  public  officer,  is  to  be  construed  as  equivalent 

^  Since  the  date  of  this  opinion,  the  re\dsion  of  1874  has  been  itself  revised,  under 
an  act  of  Congress  of  Mar.  2, 1877  (19  Stat.  268),  and  the  re-revision,  published  in  1878, 
and  certified  to  by  the  Secretary  of  State,  constitutes  "legal  evidence  of  the  laws 
therein  contained."  This  second  revision,  however,  is  not  a  new  statute,  but  merely 
a  "new  edition"  of  the  Revised  Statutes  of  1874,  with  additions  and  corrections. 

Under  a  joint  resolution  of  Congress,  of  June  7,  1880  (21  Stat.  308),  and  an  act  of 
Apr.  9,  1890  (26  Stat.  50),  a  supplement  to  the  Revised  Statutes  was  published,  by 
which  the  revision  was  brought  down  to  ^Mar.  3,  1891.  By  a  second  volume  of  the  sup- 
plement, the  revision  has  ]jeen  brought  down  to  Mar.  4,  1901. 


LAW  I  B  1  b.  679 

to  ^'must"  or  ''shall,"  where  the  enactment  imposes  a  public  duty,  or 
makes  provision  for  the  benefit  of  individuals  whoso  rights  can  not  be 
effectuated  Anthout  the  exercise  of  the  power.*  So  where  the  Secre- 
tary of  War  was  ''  authorized  "  by  an  act  of  Congress  to  reopen  a  settle- 
ment previously  made  's\dth  a  railroad  company  for  Government 
transportation,  &c.,  adjust  the  same  upon  a  certain  stated  basis,  and 
issue  nis  warrant  on  the  Treasury  for  such  amount  as  might  be  found 
due  the  company  on  such  readjustment,  lield  that  the  statute  did  not 
confer  a  mere  discretionary  authority  but  was  mandatory  upon  the 
Secretary.2     R.  ^,  82S,  June,  1879. 

I  B  1  b.  The  proper  construction  of  appropriation  acts  providing 
that  a  certain  sum  or  so  much  of  it  as  may  be  necessary,  may  be 
expended  on  a  certain  work  for  the  benefit  of  the  public  is,  m  general, 
if  there  be  no  modifying  clause,  that  it  was  the  intention  of  Congress 
that  so  much  of  the  appropriation  as  may  be  necessary  for  the  work, 
shall  be  expended  on  it.  in  such  cases  it  can  not  be  presumed  merely 
from  the  use  of  the  word  ''may"  in  the  acts  that  it  was  the  intention 
to  vest  the  one  whose  duty  it  is  to  expend  the  appropriation,  with  a 
discretion  to  do  or  not  to  do  the  work  appropriated  for.  The  word 
may  have  such  a  meaning  but  it  is  not  to  be  inferred  from  the  word 
alone  when  used  in  acts  of  this  character.     C.  2J^1S,  July,  1898. 

I  B  2.  While  there  is  a  distinction  between  a  statute  in  which  a 
public  official  is  ^^ authorized^ ^  and  one  in  which  he  is  ''rec^uired"  or 
"directed"  to  perform  a  certain  act,  in  that  a  discretion  is,  m  general, 
conferred  by  a  statute  of  the  former  class,  vet  held,  that  where  the 
President  was,  by  the  act  of  February  23^,  1892  (27  Stat.,  825), 
"authorized"  to  issue  to  an  officer  of  the  Army  a  commission  of  a 
date  prior  to  his  existing  commission,  the  word  "authorized"  should 
be  construed  to  be  mandatory.^  P.  58,  309,  Mar.,  1893.  Similarly 
held  that  in  section  224  R.  S.,  which  "authorizes"  the  Secretary  of 
War,  in  case  of  the  loss  of  a  soldier's  discharge  certificate,  to  issue  a 
duplicate,  the  word  "authorized"  means  "directed"  or  "required." 
P.  36,  j09,  Nov.,  1889.  Also,  where  the  Secretary  of  War  was 
"authorized"  by  an  act  of  Congress  to  sell  a  portion  of  a  military 
reservation,  held,  that  it  was  evidently  contemplated  by  Congress 
that  the  sale  should  be  made,  and  that  a  public  duty  was  imposed 
upon  the  Secretary  of  War,  who  could  not  properlv  omit  to  proceed 
with  the  sale.     K27,  525,  Feb.,  1869. 

IBS.  Where  a  statute  clearly  requires  a  thin^  to  be  done  in  a  par- 
ticular mode  and  form,  the  same  can  not  legally  be  varied  from  in 
material  details  by  the  officer  charged  with  the  performance.*  Thus, 
where  Congress  appropriated  certain  funds  for  a  bridge,  which,  it 
was  expressly  specified  in  the  act,  was  to  be  erected  according  to  a 
certain  designated  plan  which  had  been  recommended  for  the  purpose 
by  the  Chief  of  Ordnance,  held,  that  the  construction  of  the  brid^^e  in 
accordance  with  such  a  plan  was  a  condition  to  the  due  expenditure 

'  See  ;Minor  v.  Mechs.  Bk.,  1  Peters^  46;  Supervisors  v.  United  States,  4  Wallace,  435, 
and  cases  cited;  also  Fowler  v.  Pirkms,  77  111.  271;  Kans.  P.  R,  R.  Co.  v.  Reynolds, 
8  Kans.  628;  People  v.  Comrs.  of  Buffalo  Co.,  4  Neb.  150. 

2 See  concurrin^^  opinion  of  the  Solicitor  General  in  15  Op.  Atty.  Gen.,  621;  also 
Supervisors  v.  United  States,  4  Wallace,  435. 

^  See  Supervisors  v.  United  States,  4  Wall.,  435;  Endlich  On  the  Interpretation  of 
Statutes,  sec.  309. 

^  See  Commissioners  v.  Gaines,  3  Brev.,  396. 


680  LAW  I  B  4. 

of  the  money  appropriated,  and  that  the  p.an  could  not  legally  be 
departed  from  in  the  construction.^     R.  28,  664,  June,  1869. 

I  B  4.  It  is  a  uniform  principle  in  the  construction  of  statutes, 
which  do  not  expressly  prescribe  a  different  rule,  that  where  time  is 
to  be  computed  from  an  act  done  the  day  on  which  the  act  is  done 
shall  be  excluded.^     C.  1084,  Mar.  2,  1895. 

I  B  4  a.  In  the  act  of  September  26,  1890  (26  Stat.  483),  authoriz- 
ing a  railroad  company  to  bridge  certain  navigable  waters,  it  was 
provided  that  the  authority  should  cease  and  be  inoperative  if  after 
the  expiration  of  two  years  the  work  was  not  commenced.  The  work 
was  not  in  fact  commenced  within  the  period  limited,  but  on  Febru- 
ary 28,  1893,  after  such  period  had  elapsed,  a  further  act  was  passed, 
which,  without  reenacting  the  former  act,  simply  extended  the  time 
within  which  the  construction  might  be  commenced  and  completed. 
Held,  that  such  act  had  the  effect  of  reviving  the  former  act.  P.  59, 
21,  Apr.,  1893. 

I  B  5.  Section  3716,  R.  S.,  provides  that  in  all  advertisements  by 
the  Quartermaster's  Department  the  statement  shall  be  made  that 
preference  will  be  given  to  articles  of  domestic  production  and  manu- 
facture, conditions  and  prices  quoted  being  equal.  The  Army 
appropriation  act  of  September  22,  1888  (25  Stat.  484),  and  subse- 
quent similar  acts,  provide  that  "after  advertising"  Army  supplies 
'shall  be  purchased  where  the  same  can  be  purchased  the  cheapest, 
quality  and  cost  of  transportation  considered."  Held,  that  the 
appropriation  acts  do  not  repeal  section  3716,  R.  S.,  since  the  pro- 
vision of  that  statute  is  that  the  statement  shall  be  made  in  the  ad- 
vertisement, and  the  provision  of  the  Army  appropriation  acts  relates 
only  to  the  purchasing.     P.  60,  130,  June,  1892. 

1  B  6.  Held  J  that  the  remarks  of  members  of  Congress  in  a  debate 
on  a  bill  as  to  the  purpose  of  the  proposed  measure,  the  reasons  for 
adopting  the  same,  etc.,  do  not  ordinarily  constitute  a  safe  basis  for 
the  accurate  construction  of  the  same  after  it  has  become  enacted.^ 
R.  37,  656,  June,  1876. 

^  See  concurring  opinion  of  the  Attorney  General  in  13  Op.,  78;  also,  later  opinion 
in  20  Op.,  653. 

2  See  9  Op.  Atty.  Gen.,  131. 

^  "In  expounding  a  law,  the  judgment  of  the  court  can  not  be  influenced  in  any 
degree  by  the  construction  placed  upon  it  of  individual  members  of  Congress,  in  the 
debate  which  took  place  on  its  passage,  nor  by  the  motives  or  reasons  assigned  by 
them  for  supporting  or  opposing  amendments  that  were  offered."  Taney,  C.  J.,  in 
Aldridge  v.  Williams,  3  Howard,  24.  So,  in  Lockington's  Case,  Brightly,  289,  it  was 
held  by  the  Supreme  Court  of  Pennsylvania,  per  Yeates,  J,  as  follows:  "I  regard  the 
true  meaning  of  the  law,  to  be  collected  ex  visceribus  suis,  as  the  only  correct  ground 
of  decision  thereon.  It  is  of  no  moment,  in  my  idea,  how  it  was  treated  by  different 
gentlemen  on  the  floor  of  Congress."  And  see  United  States  v.  Union  P.  R.  R.  Co., 
1  Otto,  79;  Leese  v.  Clark,  20Cal.,  388;  Keyport,  &c.,  Co.  v.  Farmers,  &c.,  Co.,  18  N. 
Jersey  Eq.,  13;  13  Op.  Atty.  Gen.,  368.  But  it  is  said  by  Mr.  Justice  Field,  in  Ho  Ah 
Kow  V.  Nunan,  5  Sawyer,  560,  that  while  "statements  in  debate  can  not  be  resorted 
to  for  the  purpose  of  explaining  the  meaning  of  the  terms  used,"  the  same  "can  be 
resorted  to  for  the  purpose  of  ascertaining  the  general  object  of  the  legislation  proposed 
and  the  mischiefs  sought  to  b^  remedied." 

In  an  opinion  of  Aug.  23,  1879  (16  Op.,  378),  the  Attorney  General  remarks  that  the 
construction  of  a  statute,  when  doubtful,  may  be  aided  by  a  reference  to  the  debate 
when  the  members  concurred  as  to  the  purpose  of  the  measure,  but  scarcely  so  when 
they  expressed  different  views  on  the  subject.  In  an  earlier  opinion  (15  Op.,  625), 
the  Solicitor  General,  in  referring  to  the  general  rule  (as  held  in  the  text),  cites  the 
case  of  Bank  of  Pa.  v.  Commonwealth,  19  Pa.  St.,  156,  to  the  effect  that  "it  is  delusive 
and  dangerous  to  admit  messages  of  governors,  journals  of  the  legislature,  or  reports  of 
committees  to  aid  in  construing  statutes." 


LAW  I  B  7  a.  681 

I  B  7  a.  In  applying  the  Articles  of  War  to  particular  cases,  a  case 
should  not  be  treated  as  within  the  penal  provisions  of  an  article  unless 
it  is  quite  clearly  included  by  the  words  of  description  employed. 
R,  37,  199,  July,  1876;  C.  158U,  J^n.  21,  190 j^. 

I  B  8.  Where  an  appropriation  was  made  under  the  act  of  July  1, 
1898,  for  the  lighting  and  maintaining  in  good  order  of  20  arc  lights  for 
365  nights  at  a  cost  not  exceeding  25  cents  each  per  night,  held  that 
this  included  authority  to  make  the  necessary  excavations  and  exten- 
sion of  underground  conduits  to  carry  the  current  for  the  new  lights. 
C.  4641,  July  30,  1898. 

I  B  9.  The  act  of  March  3,  1883  (22  Stat.  459),  making  appropria- 
tions for  the  support  of  the  Army,  provides  in  the  clause  making 
appropriations  for  the  Medical  Department  that  "civilian  employees 
of  the  Army  stationed  at  military  posts  may,  under  regulations  to  be 
made  by  the  Secretary  of  War,  purchase  necessary  medical  supplies 
prescribed  by  a  medical  officer  of  the  Army  at  cost,  with  10  per 
centum  added."  Although  the  quoted  language  was  in  form  a 
proviso,^  it  in  fact  neither  limited  nor  excepted  from  the  matter 
preceding  it,  but  was  an  independent  provision.  The  next  appro- 
priation act  omitted  the  quoted  language.  Held,  that  the  quoted 
language  constituted  general  and  permanent  legislation.^  P.  4  159, 
Aug.  2,  I884. 

II  A  1.  Army  Regulations  may  be  divided  into  three  classes:  (1) 
Those  which  have  received  the  sanction  or  confirmation  of  Congress ; 
(2)  those  that  are  made  pursuant  to  and  in  execution  of  a  statute, 
and  (3)  those  made,  not  pursuant  to  a  statute  but  by  the  President 
as  Commander  in  Chief  of  the  Army.  As  to  regulations  of  the  first 
class,  where  the  approval  of  Congress  is  given  to  them  as  regulations 
and  is  not  intended  to  communicate  to  them  the  quality  or  effect  of 
statute  law,  such  approval  adds  nothing  to  their  legal  effect.  R.  39, 
235,  Oct.  23,  1877.  As  to  regulations  of  the  second  class,  while  they 
have  the  force  of  law  so  long  as  they  are  operative,^  they  are,  like 
other  regulations,  subject  to  the  authority  of  the  Executive  to 
niodify  them  from  time  to  time,  or  to  waive  their  operation  in  par- 
ticular cases.*  Held  therefore  with  regard  to  regulations  prescribing 
physical  qualifications  of  candidates  for  appointment  in  the  Army 
from  civil  life,  under  act  of  March  3,  1911  (36  Stat.,  1045),  that  the 
President  could  legally  waive  the  same  in  a  particular  case.  G.  29295, 
Bee.  7,  1911.  With  reference  to  regulations  of  the  third  class,^  it 
has  been  held  repeatedly  that  they  are  subject  to  the  authority  of 

\See  Henry,  administrator,  v.  U.  S.,  27  Ct.  Cls.,  142,  as  to  enactment  of  general 
legislation  by  provisos. 

2  See  Army  appropriation  act  for  the  fiscal  year  ending  June  30,  1866  (13  Stat.  497), 
in  which  the  sale  of  tobacco  to  enlisted  men,  and  the  sale  of  stores  to  officers  on  credit 
was  similarly  held  to  be  general  and  permanent  legislation.  See  also  14  Op.  Atty. 
Gen.,  681;  10  Comp.  Dec,  281;  12  id.,  306;  13  id.,  429;  14  id.,  607. 

3  United  States  v.  Barrows  et  al.,  1  Abbott,  351  (Fed.  Cas.  No.  14529). 

*  See  IX  Comp.  Dec,  280,  284,  where  is  is  said: 

"A  regulation  is  usually  simply  a  method  of  administering  a  law.  Such  is  the 
regulation  in  question.  It  was  made  to  aid  you  in  the  administration  of  this  appropria- 
tion and  is  binding  upon  your  subordinates  so  long  as  you  do  not  abrogate  or  waive  it. 
You  are  at  liberty,  in  my  judgment,  to  change,  modify,  or  waive  it  at  your  pleasure, 
always  provided  that  you  do  not  violate  some  law  in  your  changed  or  modified  regula- 
tion, or  by  making  such  change,  modification,  or  waiver  you  do  not  encroach  upon 
or  abrogate  some  contractual  right  fully  vested  before  notice  of  such  change,  modifi- 
cation, or  waiver."     See  also  24  Ct.  Cls.,  215,  216. 

*  See  Lieber  on  Regulations,  War  Department  Document  No.  63.     1898. 


QS2  LAW  II  A  1  a. 

the  Executive  to  change,  modify,  or  waive  their  operation  as  the 
pubhc  interests  may  require.  Thus  held  that  the  Secretary  of  War 
could,  where  the  interests  of  the  Government  demanded  it,  dispense 
with  the  bond  required  of  contractors  for  military  supplies,^  by  Army 
Regulations  (par.  577  of  1910).  C.  £074,  Mar.,  1896;  17488,  Jan. 
30  arid  May  4,  1905. 

II A  1  a.  Held,  that  the  provision  of  the  act  of  July  28, 1866  (14  Stat., 
338),  which,  in  directing  the  Secretary  of  War  to  prepare  and  report 
to  Congress  at  its  next  session  a  new  set  of  regulations,  added,  ''  the 
existing  regulations  to  remain  in  force  until  Congress  shall  have  acted 
on  said  report,"  meant  merely  that  the  same  should  remain  in  force 
as  regulations;  it  did  not  communicate  to  them  the  quality  or  effect 
of  statutes.  R.  33,  666,  Jan.,  1873;  37,  417,  Mar.,  1876;  39,  235, 
Oct.,  1877. 

This  enactment  was  but  temporary,  and  was  not  incorporated  in 
any  form  in  the  Revised  Statutes.  (It  expired  at  the  end  of  the 
second  session  of  the  Thirty-ninth  Congress,  no  code  of  regulations 
having  been  reported  to  that  Congress  by  the  Secretary  of  War  as 
required  by  the  act.)  Meanwhile  the  regulations  in  force  in  July, 
1866,  have  been  very  considerably  modified  and  added  to.^  Thus 
there  is  now  existing  statutory  sanction — such  as  that  of  section  1547, 
R.  S.,  in  regard  to  the  regulations  of  the  Navy  ^— for  the  Army  Regu- 
lations as  a  whole.  No  such  sanction,  however,  or  recognition,  is 
necessary  to  give  effect  to  regulations  proper.     R.  39,  235,  Oct.,  1877. 

II  A  1  b.  Army  regulations  proper  are  executive  or  administrative 
rules  and  directions  as  distinguished  from  statutes.*  A  regulation  in 
conflict  with  an  existing  act  of  Congress  can  have  no  legal  effect;  if, 
subsequently  to  the  issue  of  a  regulation,  an  act  is  passed  with  which 

^  This  does  not  apply  to  contracts  for  public  work,  as  to  which  a  bond  is  required  by 
statute  for  the  protection  of  labor  and  material  men, 

2  The  opinion  expressed  by  the  Attorney  General  (14  Op.,  164,  173 — ^January,  1873) 
that  by  the  act  of  1866,  "the  authority  to  modify"  the  then  existing  army  regulations, 
"previously  possessed  by  the  Executive,"  under  the  act  of  Apr.  24,  1816,  "would 
seem  to  have  been  taken  away,"  was  apparently  not  concurred  in  by  the  Secretary 
of  War,  repeated  modifications  of  these  regulations  having  been  published  in  orders 
since  (as  well  as  before)  the  date  of  this  opinion.  In  United  States  v.  Eliason,  16 
Peters,  296,  301,  the  Supreme  Court,  referring  to  the  general  power  of  the  Executive 
to  institute  army  regulations,  observes:  "The  power  to  establish  implies,  necessarily, 
the  power  to  modify    *    *    *    or  create  anew." 

2  This  section  is  as  follows:  "The  orders,  regulations,  and  instructions  issued  by 
the  Secretary  of  the  Navy  prior  to  July  14,  1862,  with  such  alterations  as  he  may 
since  have  adopted,  with  the  approval  of  the  President,  shall  be  recognized  as  the 
regulations  of  the  Navy  subject  to  alterations  adopted  in  the  same  manner." 

*  Army  regulations  are  not  to  be  confounded  with  the  ' '  rules  for  the  government 
and  regulation  of  the  land  (and  naval)  forces,"  which  Congress  is  empowered  to 
make,  by  sec.  8,  Art.  I  of  the  Constitution-  these  being,  of  course,  statutory  rules. 
The  use  in  this  section  of  the  word  "regulation;"  the  fact  that  the  published  Army 
Regulations  contain  sundry  statutory  provisions  not  distinguished  from  the  mass  of 
regulations  proper,  and  embrace  also  some  subjects  which  seem  scarcely  within  the 
scope  of  executive  direction  or  military  orders,  but  to  pertain  rather  to  the  province 
of  the  statute  law;  and  the  further  fact  that  the  Army  Regulations  as  a  body  received 
a  special  recognition  in  the  act  of  July  28, 1866 — these  circumstances  have  contributed 
to  confuse  regulations  with  statutes  much  to  the  embarrassment  of  the  student  of 
military  law.  Regulations  proper  (unlike  articles  of  war,  which  are  statutes)  are 
simply  orders  and  directions  made  and  published  to  the  Army  by  the  President,  either 
as  Commander  in  Chief,  for  the  purposes  of  the  exercise  of  command  over  the  Army, 
or  as  Executive,  for  the  purposes  of  the  execution  of  powers  vested  in  him  by  law. 


LAW  n  A  1  c.  683 

the  regulation  conflicts,  it  becomes  at  once  inoperative.^  R.  38,  255, 
Aug.,^1876,and  641,  June,  1877;  53,  7,  Sept.,  1886;  P.  43,  422,  Nov., 
1890;  49,  276,  Sept.,  1891;  60,  471,  July,  1893;  65,  187,  June,  1894. 
C.  1572,  July,  1895;  19S9,  Dec,  1895;  2065,  Feb.,  1896;  3305,  Feb. 
10,  1898;  18356,  July  28,  1905;  20444,  Oct.  2,  1906. 

II  A  1  c.  An  authority  which  can  legally  be  vested  by  legislation 
only  can  not  of  course  be  conferred  by  an  executive  regulation. 
Thus  lield,  that  the  expenditure  of  the  proceeds  of  the  sale  of  articles 
manufactured  by  the  prisoners  at  the  military  prison,  such  proceeds 
being  pubhc  funds,  could  not  properly  be  the  subject  of  an  Army 
regulation.     R.  4^,  24,  Oct.,  1878. 

II  A  1  d.  There  is  a  large  mass  of  matters  over  wliich  the  Executive 
would  have  jurisdiction  if  Congress,  with  its  superior  jurisdiction 
(under  tlie  constitutional  power  to  raise  armies  and  to  make  rules  for 
the  government  and  regulation  of  the  land  and  naval  forces)  had  not 
occupied  the  field.  In  all  such  cases,  to  the  extent  that  Congress 
regulates  the  subject,  the  power  of  the  Executive  to  act  in  regard  to 
it  is  taken  away.  Thus  Congress,  by  section  1102,  R.  S.,  prescribed 
that  each  Cavaliy  regiment  shall  consist  of  12  troops.  To 
^'skeletonize"  some  of  these  troops — that  is,  to  discontinue  them  for 
a  time — would  be  practically  to  change  the  statutory  organization, 
and  whether  this  can  be  done  by  executive  order,  in  the  absence  of 
statutoiy  authority,  is  open  to  serious  doubt.     C.  3606,  Oct.,  1897. 

II  A  1  6  (1).  There  is  no  statutory  authority  for  making  a  regula- 
tion placing  civilian  employees  of  the  Government  on  the  same 
footing  as  discharged  soldiers  with  regard  to  rations  wMle  under 
treatment  in  hospital,  but  neither  is  there  statutory  authority  for 
the  regulation  in  regard  to  discharged  soldiers.  The  best  that  can 
be  said  of  such  regulations,  like  the  orders  of  the  War  Department 
for  issue  of  rations  to  sufferers  from  flood  and  famine,  is  that  they 
are  founded  on  a  kind  of  necessity.  Undoubtedly  they  should  be 
authorized  by  statute.     C.  9491,  Dec,  1900. 

II  A  1  f .  Held,  that  the  Army  Regulations,  like  statutes,  are  not  to 
be  given  a  retroactive  effect  unless  the  language  used  clearly  requires 
it.     P.  28,  260,  Nov.,  1888.  ^ 

II  A  1  g  (1).  It  is  questionable  whether  the  somewhat  restricted 
power  vested  in  the  President  to  prepare  and  promulgate  regulations 

^  As  illustrating  the  distinction  between  statutes  and  regulations,  and  the  principle 
that  regulations  can  have  force  only  so  far  as  they  are  not  inconsistent  with  the  statute 
law,  see  United  States  v.  Webster,  Daveis,  38,  56-59,  and  2  Ware,  46,  54-60;  Boody 
V.  United  States,  1  Wood.  &  Minot,  150,  164;  McCall's  case,  5  Phila.,  259;  In  re 
Griner,  16  Wis.,  447;  Magruder  v.  IJnited  States,  Devereux  (Ct.  Cls.),  148;  1  Op. 
Atty.  Gen.,  469;  4  id.,  56-63,  223,  225-7;  6  id.,  10,  211,  215,  357,  365;  8  id.,  335,  343; 
11  id.,  251,  254;   O'Brien,  31;   also  22  Op.  Atty.,  54. 

As  to  the  inferior  force  and  obligation  of  the  British  Army  Regulations  as  com- 
pared with  the  Mutiny  Act  (and  Articles  of  War  thereby  authorized),  see  Samuel, 
193-197.  Clode  (Mil.  &  Mar.  Law,  p.  55)  illustrates  the  nature  of  these  regulations 
in  noting  that  originally,  "each  colonel  had  his  own  standing  orders — no  general 
regulations  being  m  existence — for  the  discipline  and  exercise  of  his  regiment." 

That  regulations  promulgated  through  the  Secretary  of  War  are  to  be  "received  as 
the  acts  of  the  Executive,"— see  United  States  v.  Eliason,  16  Peters,  291,  301;  United 
States  V.  Webster,  Daveis,  38,  59;  United  States  v.  Freeman,  1  Wood.  &  Minot,  45, 
50-51;  Lockington's  case.  Brightly,  288;  McCall's  case,  5  Phila.,  289;  In  matter  of 
Spangler,  11  Mich.,  298,  322. 

See  also,  for  an  exhaustive  discussion  of  this  subject  and  citation  of  authorities, 
"Remarks  on  the  Army  Regulations  and  Executive  Regulations  in  General,"  by 
G.  Norman  Lieber,  Judge  Advocate  General,  U.  S.  Army,  War  Dept.  Document  No. 
63  1898. 


684  LAW  OF  WAE — LICENSE. 

in  furtherance  of  statutes  can  be  construed  to  extend  to  subjects  the 
control  of  which  is  expressly  vested  in  Congress  by  the  Constitution, 
but  in  respect  to  which  that  body  has  failed  to  legislate.  Such  an 
exercise  of  power  to  legislate  in  the  form  of  executive  regulation  is 
at  least  of  doubtful  validity  and  should  not  be  attempted.  C.  1474^, 
June  1,  1903, 

CROSS   REFERENCE. 

Construction  directory See  Volunteer  Army  IV  D  1  a  (2)  (6)  [2]. 

Enlistment  I  A  9  f  (5). 

Construction,  general  words  following  spe- 
cial  See  Appropriations  XI. 

Construction  mandatory See  Volunteer  Army  IV  D  1  a  (2)  (6)  [1]. 

Construction,  reasonable See  Retirement  II  A  4  c. 

Construction,  remarks  before  congressional 
committee , . .  See  Appropriations  LXIV, 

Enemy's,  during  war See  War  I  C  7  a. 

Military  government See  War  I  C  8  a  (1)  to  (2). 

Operative  on  reservations See  Public  property  V  H  to  I. 

Pardon,  violation  of  State See  Pardon  III  B. 

State  considered  by  military  commission See  War  I  C  8  a  (3)  (e). 

State  forbidding  soldiers  carrying  arms  is 
inoperative See  Government  agencies  V. 

LAW  OF  WAR. 

See  War  I  C  to  D. 
Martial  law See  War  I  E  to  D. 

LEASE. 

See  Public  property  VII  to  VIII. 

Abrogation  of. See  Claims  VII  C  3. 

Fraudulent See  Articles  of  War  LX  A  5. 

Quarters,  heat,  and  light See  Pay  and  allowances  II A  1  d  (1) ;  (2). 

Implied See  Claims  IV. 

Land See  Militia  VI  B  2  a. 

Navigable  waters  X  D  2. 

Maneuvers See  Claims  XII  L. 

Provision  for  repairs See  Public  money  XI. 

Public  property  to  private  persons See  Tax  III  E. 

Target  ranges  for  militia See  Militia  VI  C  1  c  to  d. 

LESSER  INCLUDED  OFFENSE. 

See  Desertion  XI. 
Discipline  XV  F  2. 
Finding  of. See  Discipline  XII  A  6  to  7. 

LETTERS. 

See  Communications  II  A  1  to  4. 
Part  of  bids See  Contracts  VI  F. 

LICENSE. 

See  Public  property  VIII  to  IX. 
Ex-soldiers  not  exempt  from  for  peddling. .  .See  Tax  I  G. 

Local  for  selling See  Tax  III  M. 

Occupy  public  land See  Public  property  I  B. 

Residence,  retired  soldier  on  reservation See  Retirement  II  B  4  b. 

Revocable See  Public  property  I  A  2. 

River  and  harbor  work See  Navigable  waters  X  E  to  F. 

Theater  ticket See  Uniform  I  B  2  a. 

Trade  in  Indian  country See  Intoxicants  III  B. 


LIEN — LINE   OF  DUTY:   SYNOPSIS.  685 

LIEN. 

Admiralty See  Claims  VI  F. 

Labor  can  not  have,  on  public  property See  Contract  XX  A. 

On  wreck  for  cost  of  removal See  Navigable  waters  VII  C  I;  2. 

Taxes  on  land See  Tax  III  B. 

LIFE-SAVING  MEDAL. 

See  Insignia  op  merit  I  B. 
LINEAL  RANK. 

See  Rank  III  to  IV. 

LINE  OF  DUTY. 

I.  OFFICERS.     (See  Retirement.) 
IL  ENLISTED  MEN. 

A.  Rule — Disability  is  in  line  of  duty  unless  suroeon  knows  to  con- 
trary   Page  686 

1.  Surgeon  and  company  commander  must  investigate  cause. 

a.  Misconduct  not  required  to  render  cause  not  in  line  of  duty. 

b.  Contributory  negligence. 

(1)  Rule  of  ordinary  prudence. 

(2)  Rule  of  gross  carelessness. 

(a)  Negligence  short  of  culpable  contributory  negli- 
gence. 

c.  Athletic  sports. 

(1)  Line  of  duty  status. 

d.  Prisoner  (line  of  duty  status) Page,  687 

(1)  Insanity  cause  of  confinement. 

e.  When  absent. 

(1)  Pass  (line  of  duty  status). 

(a)  Unauthorized  act. 

(2)  Hunting  pass Page  688 

(3)  Furlough  (not  line  of  duty  status). 

2.  Pension  law. 

a.  Rule — law  beneficial,  therefore  liberal  construction. 

(1)  Rule  of  gross  carelessness. 

(2)  Rule  of  infraction  of  discipline. 

(a)  Offense  serious. 

(6)  Offense  not  serious. 

[1]  Soldier  frozen Page  689 

[2]  Accidental  discharge  of  gun. 

(3)  Prisoner. 

(4)  When  absent. 

(a)  Furlough  not  duty  status. 

[Ij  Sick  furlough — duty  status Page  690 

[2]  Veteran  furlough. 

3.  Resection  law. 

a.  Surgeon  General  decides  whether  disability  is  in  line  of  duty. 

(1)  But  can  not  divest  persons  of  right  to  claim  artificial 

limb. 

(2)  Applies  to  mechanics,  etc.,  at  arsenals. 

b.  Rights  accrue  triennially. 

4.  Bounty  laws Page  691 

a.  Legislative  rule  in  act  of  April  12,  1866. 
III.  ACT  OF  MAY  11,  1908  (35  STAT.  108).     (See  Gratuity.) 


686  LINE   OF   DUTY   II  A. 

II  A.  Held,  that  the  rule  may  be  followed  which  was  laid  down  in  a 
circular  dated  May  11,  1893,  from  the  Surgeon  General's  Office,  as  ap- 
proved by  the  Secretary  of  War,  wliich  provided  that  '^It  is  just  to 
assume  that  all  diseases  contracted  or  injuries  received  while  an  officer 
or  soldier  is  in  the  military  service  of  the  United  States  occur  in  the  line 
of  duty  unless  the  surgeon  knows,  first,  that  the  disease  or  injury  existed 
before  entering  the  service ;  second,  that  it  was  contracted  while  absent 
from  duty  on  furlough  or  otherwise ;  or  third,  that  it  occurred  in  conse- 
quence of  willful  ne^ect  or  immoral  conduct  of  the  sick  man  himself.  ''^ 
C.  247 Jf,  Aug.  3, 1896. 

II A  1.  In  a  case  of  alleged  disability  the  company  commander  and 
post  surgeon  are  required  to  investigate  the  circumstances  connected 
therewith  and  to  determine,  as  a  result  of  such  investigation,  whether 
the  disability  was  or  was  not  incurred  in  the  line  of  duty.^  Held,  that 
such  a  determination  of  fact  reached  by  military  officers  in  the  per- 
formance of  their  duty  would  under  ordinary  circumstances  be 
regarded  as  conclusive,  provided,  always,  that  when  possible  the  man 
has  been  accorded  a  hearing.  C.  13077,  Aug.  26, 1092;  17202,  Dec.  1, 
1904. 

II  A  1  a.  Disability,  though  not  caused  by  misconduct,  may  be 
caused  by  something  outside  of  the  line  of  duty,  as,  for  instance,  loss  of 
life  while  trying  to  save  another's  life.  C.  101,  July  28,  1894;  12423, 
Apr.  19, 1902. 

II A  1  b  (1).  In  cases  of  apparent  contributory  negligence,  Tield,  that 
the  disability  is  in  line  of  duty  if  the  soldier  has  used  that  reasonable 
degree  of  care  and  diligence  which  a  man  of  ordinary  prudence  and 
capacity  might  be  expected  to  exercise  under  the  same  circumstances.^ 
a  12370,  Apr.  21, 1902. 

II A  1  b  (2).  Held,  that  the  rule  with  respect  to  contributory  negli- 
gence can  not  be  applied  in  all  its  strictness  in  determining  the  ques- 
tion whether  a  soldier's  injuries  have  been  received  in  the  line  of  duty, 
but  that  injuries  caused  b}^  gross  carelessness  are  not  in  line  of  duty. 
Held,  further,  that  beyond  this  it  is  not  safe  to  lay  down  any  rule,  but 
best  to  leave  each  case  to  be  determined  upon  its  own  merits.  C.  2474, 
Aug.  3,  1896. 

II A  1  b  (2)  (a).  Held,  that  certain  acts  may,  in  a  measure,  be  con- 
tributory causes  of  disability  and  yet  not  to  such  a  degree  as  to  bring 
the  case  within  the  general  rule  of  contributory  negligence,  as  when 
the  disability  is  the  result  of  negligence,  but  the  negligence  is  not  of 
such  a  degree  as  to  amount  to  culpable  contributory  negUgence.  C. 
2658,  Oct.  15, 1896;  2474,  Aug.  3,  1896,  and  Feb.  7, 1907. 

II A  1  c.  Encouragement  of  athletic  pursuits  as  a  part  of  the  train- 
ing of  the  Army  has  advanced  by  long  strides  during  recent  years.  A 
soldier's  physical  as  well  as  moral  welfare  are  benefited  thereby. 
Among  athletic  contests  there  is  no  game  more  encouraged  as  tending 
toward  military  training  and  the  proper  military  spirit  and  the  under- 

^  See  footnote,  p.  99,  Manual  for  Courts-Martial,  Eevised  Edition,  1908. 

^  They  should  remember  that  if  possible  they  are  to  record  facts,  and  that  their 
opinions  are  only  evidence  which  is  neither  conclusive  nor  exclusive  proof.  See  7 
Op.  Atty.  Gen.,165. 

'  Am.  and  Eng.  Enc,  of  Law,  vol.  7,  p.  380,  note  1. 

See  VI,  Comp.  Dec,  794,  in  which  it  was  held  that  a  soldier's  death  caused  by  his 
attempt  to  "run  the  guard"  was  not  in  the  line  of  duty  within  the  meaning  of  the 
act  of  Mar.  3, 1899(30  Stat.  1070),  which  provides  for  the  transportation  and  burial  of 


LINE   OF   DUTY   II   A  1   d.  687 

standing  of  discipline  than  the  ^ame  of  football.  Held,  that  injuries 
received  in  athletic  sports  propeny  indulged  in  by  officers  and  enlisted 
men  while  in  camp  or  garrison  are  incurred  in  the  line  of  duty.  Heldj 
further,  that  in  view  of  the  fact  that  football  is  a  contest  which  requires 
return  games,  a  soldier's  status  while  engaged  in  such  return  game 
away  from  the  reservation  is  as  much  that  of  line  of  duty  as  though  he 
were  playing  on  the  parade  ^ound  of  his  own  post.  Held,  therefore, 
that  il  he  should  be  disabled  in  a  duly  authorized  football  game  away 
from  his  reservation  such  disability  would  be  in  line  of  duty.  C, 
2439s,  Feh.  13,  1909. 

II  A  1  d.  A  soldier  is  not  taken  out  of  the  line  of  duty  by  the  fact  of 
his  being  in  arrest  or  confinement,  even  though  that  is  not  the  kind 
of  military  duty  for  wliich  he  w^as  enlisted.^  Thus,  held,  that  a  mil- 
itary prisoner  who  incurred  a  disability  while  aiding  the  guard  in 
suppressing  a  mutiny  incurred  his  disability  in  line  of  duty.  Held 
also  that  if  the  prisoner  incurs  disability  while  at  work,  without  con- 
tributory negligence,  it  would  be  in  line  of  duty.  Held  also  that 
if  the  prisoner  becomes  disabled  simply  as  a  result  of  the  confine- 
ment (for  example,  rheumatism),  it  is  in  line  of  duty.  A  deserter 
who  had  sirrrendered  and  was  being  conveyed  as  a  prisoner  on  board 
a  Government  transport  was  killed  by  the  explosion  of  the  boilers. 
Held,  that  his  death  occurred  in  the  line  of  duty.  C.  2658,  Oct.  15 j 
1890;  3063,  Apr.  1,  1897. 

II  A  1  d  (1).  A  soldier  who  was  confined  in  the  guardhouse  brooded 
over  his  confinement  until  he  became  insane.  The  surgeon  marked 
the  insanity  ^'  not  in  hne  of  duty  "  for  the  reason  that  the  insanity  was 
due  to  the  confinement  and  the  confinement  was  due  to  the  soldier's 
misconduct.  Held,  that  the  insanity  was  in  line  of  duty  and  that  to 
urge  that  it  was  not  in  line  of  duty  because  he  was  confined  due  to 
his  own  misconduct,  w^ould  be  no  more  reasonable  than  to  hold  that 
he  was  confined  because  of  original  sin,  i.  e.,  that  as  a  cause  for  the 
insanity  the  misconduct  was  too  remote.    C.  25809,  Nov.  20,  1909. 

II  A  1  e  (1).  It  is  an  essential  incident  in  the  operation  of  a  ''pass" 
that  the  permission  to  be  absent  should  not  be  for  more  than  24 
hours,  i.  e.,  for  such  a  length  of  time  as  to  operate  to  remove  the 
soldier  from  the  possibility  of  being  called  for  the  performance  of 
the  more  important  duties  for  wliich  he  is  expected  to  hold  himself 
in  constant  readiness.  Men  on  pass  are  thus  not  removed  from  the 
fist  of  those  who  are  ''present  for  duty"  on  the  rolls.  Held,  there- 
fore, that  to  regard  a  man  on  pass  as  "absent  with  leave"  or  "on 
furlough"  would  work  a  serious  injury  in  respect  to  the  soldier  who 
is  in  the  immediate  neighborhood  of  the  post  and  subject  to  call  for 
duty  if  needed,  and  whose  status  therefore  while  on  pass  is,  in  the 
general  case,  in  fine  of  duty.  C.  15600,  Dec.  10,  1903;  2658,  Oct. 
16,  1896;  17202,  Dec.  1,  1902;  23666,  Sept.  21,  1909,  and  Sept.  8, 
1910;  24393,  May  7,  June  1,  and  Oct.  3,  1910;  26949,  June  23,  1910. 

II  A  1  e  (1)  (a).  An  enlisted  man  wliile  on  pass  for  the  purpose  of 
bathing,  discharged  a  borrowed  .22-caliber  rifle  and  was  thereby 
injured  by  the  blowing  open  of  the  breech  block.     Held,  that  although 

^  See  VI  Comp  Dec,  453,  in  which  it  was  held  that  a  soldier  in  confinement  serving 
sentence  is  not  on  duty  for  the  purpose,  if  he  dies,  of  having  his  remains  after  inter- 
ment at  Government  expense,  exhumed  and  transported  under  the  act  of  Mar.  3,  1899 
(30  Stat.  1070),  which  makes  provision  in  case  of  death  on  duty,  in  the  field,  or  a^^ 
mihtary  posts,  or  on  the  frontiers,  or  when  traveling  under  orders. 


688  LINE    OF   DUTY   II   A  1   e  (2). 

he  was  in  a  status  of  duty  the  act  was  unauthorized  and  the  resulting 

disabihty  was  not  incurred  in  hne  of  duty.     C.  2658,  Mar.  25,  1910. 

II  A  1  e  (2).  What  are  known  as   '^ hunting  passes,"   which  are 

grovided  for  in  Army  Regulations,  are  privileges  for  the  purpose  of 
unting  game,  the  purpose  of  which  is  principally  instruction  in 
small-arms  practice.  Held,  that  this  status  tails  within  the  description 
of  duty  in  respect  of  any  injuries  received  or  disabilities  incurred 
while  so  engaged.  Held,  furtJier,  that  the  character  of  the  instrument 
with  regard  to  ^'line  of  duty,"  in  the  operation  of  which  the  soldier 
absents  himself,  should  be  determined  by  the  duration  of  the  absence 
and  the  status  created  rather  than  by  its  name.  C.  15600,  Dec.  10, 
1903;  23666,  Sept  8,  1910;  2^393,  Oct.  3,  1910. 

II  A  1  e  (3).  Held,  that  a  soldier  when  on  furlough  may  be  in  line 
of  duty  as  when  en  route  to  his  station,  or  when  during  his  furlough 
he  is,  in  compliance  with  orders,  on  his  wav  to  a  place  to  report  his 
whereabouts.!     C.  2658,  Oct.  15,  1896. 

II  A  2  a.  The  term  employed  in  the  pension  laws — '4n  the  line  of 
duty" — is  much  more  comprehensive  than  the  term  '^on  duty,"  as 
used  in  the  thirty-eighth  article  of  war.  Its  application  is  not  lim- 
ited to  a  status  of  actual  present  performance  of  some  specific  military 
duty,  but  it  relates  to  a  condition  under  which  military  duty  may  be 
regularly  performed  in  contradistinction  to  a  condition  inconsistent 
with  the  performance  of  any  ordinary  duty — such  as  the  condition 
of  being  on  leave  of  absence  or  of  being  retired.  These  laws  being 
beneficial  in  their  character,  the  term  is  to  be  construed  so  as  to 
advance  the  benefit  rather  than  to  restrict  it.^  R.  4-1,  ^57,  June  10, 
1878;  51,  347,  Jan.  13,  1887;  C.  3063,  Mar.  31,  1897;  14627,  May  8, 
1903. 

II  A  2  a  (1).  Held,  that  gross  carelessness  by  a  soldier  renders  his 
title  to  a  pension  from  an  injury  resulting  from  such  carelessness 
questionable  on  the  ground  of  contributory  negligence.  G.  2474, 
Aug.  3,  1896. 

II  A  2  a  (2)  {a).  Two  soldiers  engaged  in  a  scuffle,  in  which  one 
was  permanently  injured.  Held,  that  the  scuffle  was  not  in  the  per- 
formance of  military  duty,  but  was  in  fact  an  infraction  of  military 

^  See  VI  Comp.  Dec,  343,  in  which  it  was  held  that  the  death  of  a  soldier  on  furlough 
was  not  "on  duty  "  within  the  meaning  of  the  act  of  Mar.  3, 1899  (30  Stat.  1070),  which 
provided  for  interment  at  public  expense.  But  see  XII  Comp.  Dec,  562,  in  which 
it  was  held  that  if  a  furlough  is  terminated  by  a  competent  order  to  enter  a  hospital 
as  a  patient  the  expense  of  the  treatment  is  authorized  under  the  acts  of  Apr.  23,  1904 
(33  Stat.  272),  and  Mar.  2,  1905  (33  Stat.  838.) 

2 See  1  Op.  Atty.  Gen.,  182;  7  id.,  166. 

The  most  satisfactory  definition  of  line  of  duty  given,  was  by  the  Hon.  Caleb  Cush- 
ing,  Attorney  General,  in  his  exhaustive  opinion  on  line  of  duty  with  regard  to  pen- 
sions, which  reads  as  follows:  "He  who  contracts  disease  or  dies  in  consequence  of 
the  ordinary  performance  of  his  military  duty,  or  in  the  performance  of  any  special 
act  of  military  duty,  whether  at  the  moment  of  performance  he  was  on  duty  or  off 
duty,  in  active  service,  or  on  furlough,  of  habits  virtuous  or  habits  vicious,  gallantly 
fighting  his  country's  enemy  or  expiating  an  offense  in  the  guardhouse  or  prison 
bay,  he,  I  say,  who  in  this  or  under  other  circumstances  contracts  disease  in  the  per- 
formanceof  anactof  duty  contracts  it  "in  the  line  of  duty."     (7  Op.  Atty.  Gen.,  161.) 

See  also  17  Op.  Atty.  Gen.,  173,  in  which  the  Attorney  General  states  that  as  Con- 
gress, since  the  publication  of  the  above  opinion  of  Attorney  General  Cushing,  has  not 
seen  proper  to  substitute  any  other  expression  "we  are  justified  in  concluding  that  it 
stands  in  the  statutes  invested  with  the  meaning  expressed  by  Mr.  Cushing." 

The  Interior  Department  ordinarily  decides  for  itself  whether,  for  pension  purposes, 
a  death  or  disability  was  incurred  in  the  line  of  duty. 


LINE   OF   DUTY  II   A  2   a  (2)   (b)  [l].  689 

discipline  within  the  nieanintr  of  the  twenty-fourth  article  of  war 
and  the  sixty-second  article  of  war,  and  that  the  injury  was  not  in- 
curred in  the  line  of  duty  for  pensionable  purposes.^  0.  13017,  July 
25,  1902;  P.  58,  10,  Feb.  8,  1893;  61,  188,  Aug.  25,  1893;  G.  13067, 
Aug.  14,  1902;  13S57y  Sept.  24,  1902;  26696,  May  10,  1910;  25748, 
Mar.  14,  1911. 

II  A  2  a  (2)  {h)  [1].  A  soldier  went  outside  of  the  reservation 
line  to  mail  a  personal  letter,  and  was  frozen  so  badly  that  he  was 
permanently  disabled  for  the  performance  of  his  duty.  Heldj  that 
the  infraction  of  discipline  on  tne  soldier's  part  for  leaving  the  reser- 
vation is  not  of  such  a  degree  as  to  amount  to  culpable  contributory 
negligence,  and  that  the  disability  was  incurred  in  line  of  duty  for 
pensionable  purposes.^     G.  13077,  Aug.  26,  1902. 

II  A  2  a  (2)  (h)  [2].  Held,  that  a  pistol-shot  wound  caused  by  the 
accidental  discharge  of  the  weapon  while  the  soldier  was  engaged 
in  cleaning  the  same  for  use  in  the  performance  of  special  duty,  being 
unattended  by  contributory  negligence,  was  in  the  line  of  duty  for 
pensionable  purposes.     G.  2474,  Aug.  3,  1896. 

II  A  2  a  (3).  As  it  is  a  part  of  the  military  duty  of  a  soldier  to 
submit  to  such  punishment  as  may  be  awarded  liim  for  the  commis- 
sion of  a  military  offense,  held,  that  he  is  not  necessarily  out  of  the  line 
of  duty  when  in  confinement.  Held,  further,  that  if  he  receives  an 
injuiy  which  was  in  fact  a  casualty  of  the  service  not  incurred  by 
his  own  fault  or  negligence  pending  such  confinement  his  claim  for 
pension  should  not  be  prejudiced.^  R.  4^i  ^^^)  June  10,  1878;  G. 
3063,  Mar.  31,  1897;  14627,  May  8,  1903. 

II  A  2  a  (4)  (a).  A  soldier,  while  on  furlough,  became  perma- 
nently disabled  for  the  performance  of  his  duty.  Held,  that  m  view 
of  the  provision  of  section  4694,  R.  S.,  the  disability  was  not  incurred 
in  line  of  duty  for  pensionable  purposes,  since  the  soldier  was  not,  at 
the  time,  in  the  field,  on  the  march,  at  a  post,  fort,  or  garrison,  or  en 

^  See  2  Op.  Atty.  Gen.,  589,  also  7  id.,  153,  in  which  it  was  held  that  "No  man,  it 
is  clear,  is  acting  in  the  line  of  duty,  while  the  act  he  performs  is  a  violation  of  his 
duty,"  but  also  held  in  same  opinion  that  a  soldier  "who  is  laboring  under  all  the 
worst  effects  of  vicious  indulgence,  and  subject  to  die  at  any  moment  of  disease  occa- 
sioned by  that  cause,  may  yet  happen  to  die  of  other  disease  contracted,  or  by  cas- 
ualty occurring,  or  of  injury  received  while  indubitably  in  line  of  his  duty;  and  so 
transmit  a  right  to  pension." 

2  See?  Op.  Atty.  Gen.,  p.  166,  where  it  was  said:  "If  called  upon  to  suggest  any  rule 
for  the  guidance  of  his  discretion  in  the  matter,  it  would  be  obvious  for  you  to  say  that 
the  pension  laws  are  beneficial  in  their  nature,  and  therefore  to  be  construed  bene- 
ficially in  matters  of  inevitable  doubt.  In  this  view,  it  seems  to  me,  not  that  the 
mere  fact  of  an  officer  having  died  in  the  service,  and  with  utter  absence  of  proof  as  to 
the  origin  or  cause  of  his  death,  suffices  to  raise  a  pension;  but  that  where  the  proofs 
are  balanced,  and  it  is  impossible  to  determine  by  them  as  to  the  fact  of  'disease  con- 
tracted,' and  the  fact  of  'line  of  duty,'  found  in  juxtaposition,  whether  this  collocation 
be  of  contiguity  only,  or  of  actor  and  subject,  of  contemporaneit)^  or  sequence,  only, 
or  of  cause  and  consequence,  it  would  be  reasonable  to  presume  in  favor  of  the  pen- 
sion; and  also  to  presume  in  favor  of  the  pension  in  cases  where  the  line  of  duty 
appears  to  enter  potentially  into  the  causes  of  the  death,  although  it  should  happen 
not  to  be  certainly  provable  that  it  was  the  exclusive  or  predominant  cause,  so  that  a 
possible  error  of  absolute  and  mere  uncertainty  shall  not  be  suffered  to  defeat  the 
liberal  intentions  and  beneficial  policy  of  the  Government." 

^  See  7  Op.  Atty.  Gen.,  154,  in  which  it  was  held  that  a  soldier  "under  arrest"  or 
"in  confinement"  is  not  discharged  from  the  obligation  of  duty,  and  is  occasionally 
called  upon  to  perform  duty  in  which  he  may  distinguish  himself,  and  die  honorably; 
and  leave  a  right  of  pension  to  his  widow  or  children, 

31106°— 12 44 


690  LINE   OF   DUTY   II   A  2   a  (4)   (a)   [l]. 

route,  by  direction  of  competent  authority,  to  some  post,  fort,  or 
garrison.!     G.  13357,  Sept.  29,  1902;  26949,  June  23,  1910. 

II  A  2  a  (4)  (a)  [1].  It  has  uniformly  been  ruled,  in  the  adminis- 
tration of  the  pension  laws,  that  a  soldier  absent  from  his  command 
on  sick  furlougji  remained  ''in  the  line  of  duty."  So,  in  the  case  of  a 
volunteer  soldier  who  had  been  given  a  sick  furlough  for  twenty  days, 
and  was  disabled  by  the  kick  of  a  horse  so  that  he  could  not  return, 
held,  that  if  the  disability  was  incurred  before  the  expiration  of  his 
furlough,  he  was  then  ''in  the  line  of  duty"  within  the  meaning  of 
the  act  of  March  2,  1889  (25  Stat.  869),  providing  for  the  removal 
of  the  charge  of  desertion  in  certain  cases.     P.  44i  4^^j  Jan.,  1891. 

II  A  2  a  (4)  (a)  [2.]  Section  4700,  R.  S.,  puts  enlisted  men  "on 
veteran  furlough  with  the  organization  to  which  they  belong"  upon 
the  same  footing  as  men  on  sick  furlough.  So,  held,  that  a  volunteer 
soldier  furloughed  with  the  rest  of  the  organization  to  which  he 
belonged  might  also  properly  be  considered  as  "in  the  line  of  duty," 
while  absent  from  his  command  on  such  furlough,  within  the  mean- 
ing of  the  act  of  March  2,  1889.    P.  47,  448,  June,  1891. 

II  A  3.  Section  4787,  R.  S.,  and  the  acts  of  August  15,  1876  (19 
Stat.  203),  February  27,  1877  (19  Stat.  252),  and  March  3,  1891 
(26  Stat.  1103),  provide  that  artificial  limbs  shall  be  issued  in  cases 
of  injury  in  line  of  duty.  Held,  that  under  these  laws  the  Surgeon 
General  is  specifically  designated  as  the  authority  to  pass  on  the 
question  for  this  purpose  of  deciding  whether  the  disability  was  or 
was  not  incurred  m  line  of  duty.  G.  24221,  Bee.  15,  1908,  and  Jan. 
16,  1909. 

II  A  3  a  (1).  Held,  that  the  act  of  August  15,  1876  (19  Stat.  203), 
authorizing  the  Surgeon  General  of  the  Army  to  prescribe  regulations 
under  which  persons  shall  receive  artificial  limbs,  etc.,  referred  only 
to  regulations  auxiliary  to  the  act  and  designed  to  give  it  efl^ect, 
and  did  not  empower  him  to  divest  persons  of  the  right  of  prosecut- 
ing claims  for  the  same.     R.  49,  225,  July,  1885. 

II  A  3  a  (2).  The  description,  "hired  men  of  the  land  forces," 
employed  in  the  act  of  February  27,  1877  (19  Stat.  252),  amending 
section  4787,  R.  S.,  may  properly  be  construed  to  include  the  me- 
chanics and  laborers  employed  at  arsenals  by  the  authority  of  the 
provisions  of  Title  XVII  of  the  Revised  Statutes.  R.  39,  316, 
Nov.,  1877. 

II  A  3  b.  Held,  that  the  effect  of  section  4787,  R.  S.,  as  amended 
by  the  act  of  March  3,  1891  (26  Stat.  1103),  was  as  follows:  1.  All 
persons  entitled  to  be  furnished  hy  the  War  Department  with  arti- 
ficial limbs  or  apparatus  for  resection,  in  whose  cases  three  or  more 
years  (and  less  than  five  years)  had,  on  March  3,  1891,  fully  elapsed 
since  the  date  of  their  last  legal  receipt  of  a  limb,  etc.,  became  entitled, 

!  See  7  Op.  Atty.  Gen.,  154,  in  which  it  is  held  that  a  soldier,  while  absent  by  author- 
ity may  occasionally  be  called  upon  to  perform  duty  and  thereby  acquire  a  pensionable 
status.     On  page  163  of  same  opinion  it  is  held  that: 

"When  it  is  remembered  that  no  commissioned  oflficer  or  enlisted  soldier,  seaman, 
or  marine  has  power  to  cast  off  his  obligation  at  will;  that  whether  he  be  on  duty  or 
off,  in  glory  or  m  disgrace,  still  the  banner  of  his  country  is  over  him  and  its  oath  upon 
his  conscience;  when  this  great  fact  shall  be  remembered,  it  must  be  inevitable  to 
concede  that  any  rule,  based  on  the  assumption  of  its  being  impossible  for  an  ofRcer 
or  soldier  on  furlough,  on  leave  of  absence,  in  arrest,  under  sentence,  to  perform  acta, 
suffer  casualties,  receive  wounds,  or  incur  causes  of  disease  in  the  line  of  his  duty,  is 
not  a  truth,  and,  like  all  things  not  true,  can  not  be  conformable  to  justice  or  wisdom." 


LINE   OF  DUTY   II  A  4.  691 

on  said  March  3,  1891,  to  receive  at  once  a  new  limb,  as  of  the  end  of 
the  third  year  from  such  receipt,  and  further  to  receive  another  new 
limb  at  the  end  of  three  years  from  the  completion  of  saitl  third  year, 
and  so  on.  2.  All  persons  who  have  received  a  limb,  etc.,  on  March  3, 
1888,  or  on  any  subsequent  date  prior  to  the  date  of  the  act  of  March 
3,  1891,  became  entitled  to  a  new  limb  on  March  3,  1891,  or  other 
date  three  years  succeeding  such  receipt,  and  again  on  March  3, 
1894,  or  at  the  end  of  a  further  three  years,  and  so  on.  3.  The  act 
of  1891,  being  prospective  in  terms,  can  not  be  construed  as  operat- 
ing retrospectively  or  as  authorizing  a  revision  of  former  quin- 
(juennial  receipts  or  money  payments  as  their  equivalents.  4.  "Iliere 
is  nothing  in  the  amending  act  of  1891  to  repeal,  or  affect  the  opera- 
tion of,  the  provisions  of  section  4788  or  4790,  R.  S.,  in  regard  to 
payments  of  money  in  heu  of  delivery  of  limbs.  These  provisions 
are  held  clearly  to  apply  to  triennial  rights  equally  and  in  the  same 
manner  as  they  applied  to  quinquennial.^    P.  46,  58,  Mar.,  1891. 

II  A  4.  Formerly  the  expression  ^'Hne  of  duty"  was  more  strictly 
construed  than  latterly,  but  the  earlier  construction  has  not  been 
adopted  in  practice.  "Ej  section  4  of  the  act  of  March  3,  1865  (13 
Stat.  488>,  it  was  provided  "that  every  noncommissioned  officer, 
private,  or  other  person,  who  has  been  or  shall  hereafter  be  dis- 
charged from  the  Army  of  the  United  States  by  reason  of  wounds 
received  in  battle,  or  skirmish,  on  picket,  or  in  action,  or  in  the  line  of 
duty  shall  be  entitled  to  receive  the  same  bounty  as  if  he  had  served 
out  his  full  term."  And  by  an  act  approved  April  12,  1866,  it  was 
declared,  "that  the  true  intent  and  meaning  of  the  words  'or  in  the 
line  of  duty,^  used  in  the  fourth  section  of  the  act  approved  March 
3,  1865,  *  *  *  requires  that  the  benefit  of  the  provision  of  said 
section  shall  be  extended  to  any  enlisted  man  or  other  person  entitled 
by  law  to  bounty  who  has  been  or  may  be  discharged  by  reason  of 
a  wound  received  while  actuaUy  in  service  under  military  orders,  not 
at  the  time  on  furlough  or  leave  of  absence,  nor  engaged  in  any 
unlawful  or  unauthorized  act  or  pursuit."  For  the  purpose  of  the 
earlier  legislation  this  legislative  construction  is  conclusive,  but  it 
is  not  necessarily  so  in  determining  the  soldier's  condition  or  military 
status  in  other  cases;  for  example,  as  to  his  right  of  admission  to 
the  soldiers'  home.  A  further  limitation  has  been  in  practice  rec- 
ognized, viz,  that  the  disability  must  not  be  the  result  of  the  unlawful 
or  unauthorized  act  as  a  direct  or  contributory  cause.  The  prin- 
ciple as  stated  in  the  act  of  April  12,  1866,  modified  by  the  Umitation 
just  stated,  is  as  accurate  a  general  statement  of  the  meaning  in 
mihtary  administration  of  the  expression  "in  the  line  of  duty"  as 
can  be  given.  It  is,  however,  subiect  to  exceptions.  C.  2658,  Oct. 
15,1896. 

CROSS   REFERENCE. 

See  Gratuity  I  A  to  B. 

Determined  by  retiring  board See  Retirement  I  B  2  d;  e. 

Disability  contracted  in See  Discharge  V  A ;  XX  D  i. 

Finding  by  examining  board See  Retirement  I  B  6  b  to  d. 

Insanity See  Discharge  XIII  D  4  a. 

Insanity  I  D. 

Pass See  Claims  VI 1 1 . 

Sick  soldier  retained  in  service .See  Enlistment  I  B  2  i. 

Status  of See  Absence  1  B  1  b  (1). 

*  Compare  20  Op.  Atty.  Gen.,  83. 


692  LIQUIDATED  DAMAGES MARITIME   CAPTURE. 

LIQUIDATED   DAMAGES. 

See  Contracts  XVIII  to  XX. 

LOAN. 

Company-fund  money  not  authorized See  Government  agencies  III  A  3. 

Money  at  usurious  rates See  Civilian  employees  XVI  A. 

Property  to  militia  not  authorized See  Militia  IX  C;  XVI  I  5;  6. 

LOSS  OF  RANK. 

See  Rank  II  A  3  a  to  d;  III  A;  V  to  VI. 

Failure  in  promotion See  Retirement  I  B  6  c  to  d. 

Pardon  of. See  Pardon  IV  to  V. 

Rank  II  A  3  b  to  c. 
Suspension,  effect  on  pay See  Pay  and  allowances  III  A  2  a. 

MACHINE-GUN   PLATOON. 

Militia See  Militia  III  C. 

MAKE  GOOD  TIME  LOST. 

See  Articles  of  War  XLVIII  A  to  F; 
cm  F  4. 
Absence  II  B  9;  9  a. 
Desertion  XV  B  2. 
Discharge  after See  Discharge  XIII  B  1. 

MALPRACTICE. 

See  Articles  of  War  LXII  D. 
MANEUVERS. 

Damage  to  property  during See  Claims  II. 

Lease  of  land  for.  '. See  Claims  XII  A. 

Liquor  at See  Intoxicants  II  D. 

Post  exchange  at See  Militia  XV  A. 

MANSLAUGHTER. 

See  Articles  OF  War  LXII  B;  F;  CIIC2. 
Punishment  for See  Articles  of  War  XCVII  E. 

MARINE   CORPS. 

Enlistment  of  deserter  from See  Enlistment  I  A  9  e. 

Previous  service  in .See  Enlistment  I  D  2  b. 

Discharge  VI  D  7. 
Retirement  of  soldier See  Retirement  II  A  2. 

MARINE   OFFICER. 

Eligibility  to  command See  Command  IB;  IV  A . 

Articles  of  War  CXXII  A. 
Trial  of See  Articles  of  War  LXXVIII  A. 

MARITIME   CAPTURE. 

See  Claims  VII  F. 


MARRIAGE — MESS   SERGEANTS.  693 

HAKBIAGE. 

Enlisted  men See  Command  V  A  2  a. 

Polygamous See  Articles  op  War  LXI  B  12. 

Refusal  of  soldier  to  contract See  Articles  of  War  XXI  C  2  b. 

MABRIED  MAN. 

Beneficiary  of. See  Gratuity  I  B  1;  4. 

Enlistment  of See  Enlistment  I  A  9  f  (7)  (a);  10;  1%. 

MARRIED  WOMEN. 

As  surety See  Bonds  I  M  14. 

Removal  from  post See  Command  V  A  3  d  (2). 

MARTIAL  LAW. 

See  War  I  E  to  F. 
See  Army  II I  3  b. 

MEDAL  OF  HONOR. 

See  Insignla  of  merit  I  A  to  B. 

MEDALS. 

See  Insignia  of  merit  I  to  II. 

MEDICAL  DEPARTMENT. 

See  Army  I  G  3  d  to  h. 

Appointments  to See  Office  III  Ale  (2);  6  c. 

Rank  I  B  1  c  to  d. 
Examination  of  officers See  Retirement  I  B  6  c  (4);  7  a. 

MEDICAL  RESERVE  CORPS. 

See  Army  I  G  3  d  (3)  to  (4). 
MEDICAL  SERVICE. 

Absentees See  Claims  VIII. 

Militiamen See  Militia  VI  B  1  e  (4);  (5). 

MEMBER  OF  COURT  OR  BOARD. 

See  Discipline  VI  A  to  G  3. 

Retirement  I  B  1  d  (1). 

As  witness See  Discipline  X  A  2. 

Detail  of. See  Articles  of  War  LXXII  D  1. 

Discipline  III  C  1  a  to  f . 

MESS. 

Officers See  Army  I  G  3  b  (3)  (a)  [1]. 

Intoxicants  II  C. 

MESS   SERGEANTS. 

Detail  of  in  Hospital  Corps See  Army  I  G  3  d  (5)  (6). 


694  MEXICO — MILITARY  INSTRUCTION:  SYNOPSIS. 

MEXICO. 

Arrest  of  deserter  in See  Desertion  V  F  8. 

Extradition See  Desertion  IV  A;  B. 

Extradition  II  to  III. 
Neutrality .See  Army  II  K  to  L. 

MILEAGE. 

See  Pay  Manual. 

Appropriations  for See  Appropriations  XIX. 

Cadets  not  entitled  to See  Army  I  D  5. 

MILITARY  ACADEMY. 

See  Residence. 
Army  I  D  to  E. 

Appointments  from See  Office  III  A  1  a;  6  a  (1). 

Appointments  for See  Appropriations  XXII. 

Appointments  to See  Office  III  A  4  a. 

Bond  of  treasurer See  Bonds  II  P. 

Hazing See  Army  I  D  3  b  (2)  (a). 

Leaves  of  instructors See  Absence  I  B  1  g  (1). 

Master  of  the  sword See  Office  III  E  3. 

Rank  II  CI. 

MILITARY  ATTACHE. 

Entertainment  of,  at  State  camp See  Militia  VI  B  1  e  (9). 

MILITARY  COMMISSION. 

See  War  I  C  8  a  (3)  to  (4). 

Copy  of  record  to  accused See  Articles  of  war  CXIV  A. 

Jurisdiction  of See  Discipline  III  E  3  b. 

Porto  Rico See  Appropriations  LXI. 

MILITARY  CONTROL. 

Volunteers  after  muster  out  of  organization.. ^ee  Volunteer  Army  IV  C  to  D;  D2  a  (3). 

MILITARY  COURTS. 

See  Discipline. 
Appropriations  for See  Appropriations  XXV. 

MILITARY  GOVERNMENT. 

Bonds  of  officers  under See  Bonds  II  O. 

Civil  administration  during See  Claims  VII  E. 

Customs See  Public  money  II. 

Law  ofivar See  War  I  C  1;  C  8  to  9. 

Regular  officer  holding  civil  office See  Office  IV  A  2  e  (6)  to  (7). 

MILITARY  INSTRUCTION. 

I.  OF  THE  ARMY. 

A.  At  United  States  Military  Academy,     (See  Army  I  D  to  E.) 

B.  At  Service  Schools.     (See  "Absence.") 


MILITARY  INSTRUCTION   II  B  1  a.  695 

II.  OF  CIVILIANS. 

A.  Of  the  National  Guard.    (See  "Militia.") 

B.  Of  College  Students. 

1.  Details  of  Army  officers  to  colleges. 

a.  Retired  officers Page  695 

b.  More  than  one  officer  may  be  detailed. 

c.  Private  schools  not  included. 

d.  May  be  detailed  in  Philippines. 

e.  Single  detail  limited  to  four  years. 

f.  Retired  officers  may  be  detailed  to  high  schools Page  696 

g.  May  be  detailed  in  Porto  Rico. 

2.  Furnishing  arms,  etc. 

a.  Furnished  only  to  colleges  to  which  officers  have  been  detailed. 

b.  Governor  should  approve  requisition. 

c.  The  responsible  officer  must  render  returns. 

d.  Rights  of  U.  S.,  protected  if  arms  are  damaged Page  697 

e.  Return  of  arms. 

(1)  Letter  signed  by  Chief  of  Ordnance. 

II  B  1  a.  Held,  that  the  limitation  placed  by  section  1225  R.  S., 
as  amended  by  the  act  of  November  3,  1893  (28  Stat.  7),  on  the 
number  of  officers  who  may  be  detailed  as  instructors  at  colleges  is 
not  exclusive  of  retired  officers.^     R.  37,  201,  Dec,  1875. 

II  B  1  b.  Held,  that  more  than  one  officer  may  be  detailed  at  the 
same  time  to  one  institution.     C.  23701 ,  Aug.  11,1 908. 

II B  1  0.  The  act  of  September  26,  1888,  chapter  1037,  in  amending 
section  1225,  R.  S.,  authorizes  the  detail  of  officers  and  issue  of 
arms  to  ''any  established  mihtary  institute,  seminary  or  academy, 
college  or  university."  Held,  that  the  term  ''estabfished,''  con- 
strued in  connection  with  the  terms  of  the  previous  legislation  on 
this  subject,  was  to  be  interpreted  as  including  incorporated  institu- 
tions or  those  estabhshed  by  law,  such  as  State  institutions,  and 
that  an  unincorporated  private  school  or  other  institution  of  learning 
was  not  to  be  regarded  as  '^established"  in  the  sense  of  this  statute. 
Thus,  held,  that  an  unincorporated  academy,  owned  and  controlled 
by  a  partnership,  was  of  the  class  of  private  institutions  to  which 
a  detail  of  an  officer  as  professor,  or  an  issue  of  ordnance,  could 
not  legally  be  made.     P.  64,  U2,  Apr.,  1894;  65,  67,  May,  1894. 

II  B  1  d.  Under  section  1225,  R.  S.,  officers  of  the  Army  may  be 
detailed  for  duty  at  a  college  or  university  in  the  Philippine  Islands. 
C.  16485,  June  21,  1904. 

II  B  1  e.  The  act  of  November  3,  1893  (28  Stat.  7),  restricts  the 
tour  of  college  duty  to  four  years.  Held,  that  neither  an  active 
nor  a  retired  officer  can  be  employed  for  a  longer  period  than  four 
consecutive  years  under  a  single  detail  to  college  duty,  and  that 
such  four  years'  detail  dates  from  the  original  assignment  of  the 
retired  officer  to  college  duty.  During  the  continuance  of  his  detail, 
however,  he  may  serve  at  one  or  more  than  one  college,  but  the 
aggregate  period  of  service  comprised  within  the  "detail,"  as  that 

^  Under  sec.  1225  R.  S.  30  officers  could  be  detailed.  This  was  increased  by  the 
act  of  Sept.  26,  1888  (25  Stat.  491),  to  50  from  the  Army  and  10  from  the  Navy;  by 
the  act  of  Jan.  13,  1891  (26  Stat.  716),  to  85;  and  by  the  act  of  Nov.  3,  1893  (28  Stat. 
7),  to  110,  including  10  Na\'y  officers. 


6d6  MILITARY  INStRUCTiON   II  B  1. 

term  is  used  in  the  Act  of  November  3,  1893,  must  be  limited  to 
four  years.^ 

Had,  also  that  the  word  ''detail/'  as  used  in  the  act  of  November 
3,  1893,  must  be  regarded  as  having  been  used  in  the  sense  ordinarily 
attributed  to  it  in  the  miUtary  service.  The  frequency  of  detail 
and  the  interval  of  time  which  shall  elapse  between  successive 
details  are  incidents  which,  if  not  provided  by  statute,  are  to  be 
determined  by  the  Secretary  of  War  in  regulation  or  orders  prepared 
for  that  purpose.  The  limiting  words  of  the  statute  were  intended 
to  describe  the  length  of  a  detail,  rather  than  to  preclude  a  reassign- 
ment of  the  officer  to  the  same  or  similar  duty  at  the  expiration 
of  a  four  years'  detail. 

If  it  be  desired  to  assign  a  retired  officer  to  a  second  detail,  it 
will  be  necessary,  as  the  period  of  detail  is  rigorously  restricted  by 
statute,  that  the  officer  should  be  formally  relieved  from  college 
duty  and  subsequently  rede  tailed  in  appropriate  orders  from  The 
Adjutant  General's  office.     C.  13791,  Dec.  12,  1902. 

II  B  1  f.  Held,  that  under  the  act  of  February  26,  1901  (31  Stat. 
810),  a  retired  Army  officer  may,  with  his  consent,  be  detailed  to 
duty  with  a  high  school.     C.  24566,  Feb.  26,  1909. 

II  B  1  g.  Held,  that  under  section  1225  R.  S.  an  officer  of  the  Army 
can  be  detailed  as  an  instructor  to  a  college  in  Porto  Rico  and  that 
such  detail  is  in  line  with  the  militaiy  policy  of  the  United  States 
in  the  dissemination  of  military  instruction.     G.  27865,  Feb.  15,  1911. 

ll  B  2  a.  It  has  been  the  general  practice  of  the  War  Department 
under  section  1225,  R.  S.,  as  amended  by  the  act  of  September  26, 
1888  (25  Stat.  491),  to  refuse  applications  for  arms,  etc.,  except  when 
made  by  some  ''established  military  institute,  seminary  or  academy, 
college  or  university,"  to  which  an  army  (or  naval)  officer  had  been 
regularly  detailed;  and  this  practice  is  believed  to  be  in  accordance 
with  a  fair  and  reasonable  interpretation  of  the  statute  referred  to.^ 
a  3271,  June,  1897;  R.  37,  201,  Dec.  1875;  P,  41,  308,  June,  1890; 
C.  21782,  July  15,  1907. 

II  B  2  b.  Held,  that  the  Secretary  of  War  is  authorized  to  issue  arms 
to  any  college,  etc.,  where  either  an  Army  or  a  Navy  officer  has  been 
detailed  under  the  provisions  of  section  1225,  R.  S.,  as  amended  by 
the  act  of  September  26,  1888  (25  Stat.  491).^  P.  38,  201,  Jan.,  1890. 
Held,  further  that  requisitions  for  such  supply  of  arms  and  ordnance 
stores  require  the  approval  of  the^overnor  of  the  State  or  Territory 
in  which  the  coUege  is  located.     G.  18007,  Jan.  21,  1910. 

II  B  2  c.  The  official  of  the  college,  etc.,  to  whom  the  ordnance 
stores  issued  under  this  section  are  intrusted,  may  properly  be 
required  to  render  the  returns  indicated  in  section  1167,  R.  S.,  which 
directs  that  all  "officers,  agents  or  persons"  receiving  or  intrusted 
with  ordnance  stores  or  supplies  shall  make  certain  regular  returns 

1  See  VI  Comp.  Dec,  120. 

2  In  1885  arms  were  issued  to  the  Washington  High  School  by  the  Secretary  of  War; 
but  subsequently  under  date  of  Nov.  25,  1890,  the  then  Secretary  held,  upon  an 
application  from  the  same  school  for  100  cadet  rifles,  that  there  was  no  authority  of 
law  for  the  issue,  and  declined  to  follow  the  precedent  of  1885.  At  the  same  time 
he  recommended  Congressional  action  in  the  matter  and  Congress  by  joint  resolution 


approved  Feb.  5,  1891,  authorized  the  issue. 
^If  100  Army  officers  should  be 


be  detailed  to  duty  with  colleges,  under  the  act  of 
Nov.  3,  1893  (28  Stat.  7),  but  10  naval  officers  could  be  detailed,  since  under  the 
provisions  of  that  act  the  total  number  of  Army  and  Navy  oflicers  is  limited  to  110, 
and  the  number  of  Army  officers  which  can  be  detailed  is  also  limited  to  100. 


MILITARY  INSTRUCTION — MILITARY  RESERVATIONS.  697 

of  the  same  according  to  forms  and  rules  prescribed  by  the  Chief  of 
Ordnance  with  the  approval  of  the  Secretary  of  War.  R.  42,  282^ 
May,  1879. 

II  B  2  d.  Where  it  was  found  that  arms  issued  by  the  Government 
to  an  institution  were,  through  carelessness,  damaged  in  a  stated 
amount,  held,  that,  in  default  of  payment,  if  it  be  desired  to  sue 
for  the  damages  the  bond  and  sureties  may  be  ignored  and  suit 
brought  directly  against  the  owners  of  the  institution  (academy) 
alone,  or  suit  may  be  brought  on  the  bond;  or  if  it  be  decided  to 
demand,  under  the  regulations  of  the  War  Department  relating  to 
the  issue  of  arms  to  colleges,  etc.,  the  return  of  the  arms,  and  the 
same  were  not  returned  in  30  days,  the  bond  could  be  put  in  suit 
and  the  claim  for  damages  included  therewith.  0.  2902,  Feb.,  1897; 
17891,  Apr.  22,  1905;  22056,  Nov.  25,  1910. 

II  B  2  e  (1).  Held,  that  when  it  becomes  necessary  to  demand  the 
return  of  ordnance  and  ordnance  stores  which  have  been  issued  to 
institutions  of  learning  under  the  acts  of  September  26,  1888  (25 
Stat.  491),  and  the  act  of  April  21,  1904  (33  Stat.  226),  the  demand 
is  legal  if  signed  by  the  Chief  of  Ordnance  by  authority  of  the  Secre- 
tary of  War.     0.  19878,  June  11,  1906. 

CROSS   REFERENCE. 

See  Militia  VI  to  VII. 

By  retired  soldier See  Retirement  II  E  2  b. 

Civilians  by  retired  officers See  Retirement  I  K  3  to  4. 

MILITARY  NECESSITY. 

See  Claims  VII  B  to  C. 
Destruction  of  property See  War  I  C  6  h. 

MILITARY  OCCUPATION. 

Cuba See  War  I  C  8  c  to  d. 

Philippine  Islands » See  Articles  of  War  LVIII  D. 

MILITARY  PRISON. 

See  Discipline  XVII  A  4  g  to  h. 

Appropriations  for See  Appropriations  XXXVI  A ;  B. 

Articles  manufactured  by See  Laws  II  A  1  c. 

;  Discipline  XVII  A  4  g  (1)  to  (6). 

Labor  at See  Eight-hour  law  VII. 

Prisoners See  Articles  of  War  CXII  A  Lc  (1);  B;  C. 

MILITARY  RESERVATIONS. 

See  Public  property  I  A  1;  III  to  IV. 

Cutting  grass See  Command  V  A  3  g. 

Cutting  wood See  Public  property  II  F  to  G. 

Grazing See  Public  property  VIII  E. 

Hotel  on See  Public  property  I  A  1. 

Intoxicants See  Intoxicants  II  to  III 

Jurisdiction See  Army  I  E  5. 

Offenses  on See  Articles  of  War  LXII  C  5  a. 

Residence  of  retired  soldier See  Retirement  II  B  4  b. 

Road  school  tax,  civilian  employees See  Tax  II  to  III. 

Sale  of  timber See  Public  property  IX  A  2  a  (3). 

School  tax See  Tax  IV  B. 

Ship  wrecks See  Claims  VI  E. 

Shore  Line See  Command  V  A  3  f . 

Squatters See  Public  property  II  B  3  a;  III  H  t-o  I. 

Statecamp See  Militia  VI  B  1  c. 

Taxations  of  private  property See  Tax  III  to  IV. 

Territorial  statutes '. See  Territories  I  to  II. 


698  MILITARY   SERVICE — MILITIA:   SYNOPSIS. 

MILITARY  SERVICE. 

Making  good  time  lost See  Articles  of  War  XLVIII  E. 

MILITIA. 

I.  CALLING  FORTH. 

A.  What  Constitutes  a  Calling  Forth? Page  702 

1.  May  not  be  called  forth  for  drill  or  in  anticipation  of  war. 

B.  The  Secretary  op  War  May  Issue  the  Orders. 

C.  Manner  of  Calling  Forth. 

D.  When  Called  Forth,  Members  Can  Not  Decline. 

E.  Called  Outside  of  United  States Page  703 

F.  President  Sole  Judge  of  Necessity  to  Call  Forth. 
n.  MILITIA  NOT  FEDERAL  TROOPS. 

A.  When  en  route  to  Joint  Encampment  Over  Land-grant  Railroad. 

1.  When  en  route  to  joint  encampment  by  march. 

B.  During  Joint  Encampment  with  Regular  Army Page  704 

C.  Medical  Officers  of  Militia  Can  Not  Make  Examination  of  School 

Teachers  for  Service  in  the  Philippines. 

D.  Members  of  Militia  Can  Not  be  Prosecuted  under  Sections  3748 

AND  5438,  Revised  Statutes,  for  Sale  of  Arms. 
m.  ORGANIZATION. 

A.  Must  be  the  Same  as  That  of  the  Regular  or  Volunteer  Army. 

B.  Of  Infantry,  Cavalry,  and  Field  Artillery Page  705 

C.  Of  Machine  Gun  Platoon Page  706 

D.  Of  Coast  Artillery. 

E.  Discrimination  Because  of  Color. 

F.  Office  is  not  Civil  Office. 

G.  Adjutant  General. 

H.  Quartermaster  General. 

I.  Governor's  Aids. 

J.  Authorized  Privileges Page  707 

K.  Retired  Regular  Soldier  Accepts  Commission  in  Militia. 
L.  Company  of  Students  at  a  College. 
IV.  UNAUTHORIZED  FORCES. 

A.  State  Can  Not  Create  Force  which  Shall  be  Exempt  from  Being 

Called  Forth. 

B.  Voluntary  Organizations. 

C*  Insular  Police,  Porto  Rico,  and  Alaskan  Indians Page  708 

D.  Indian  Militia  in  Indian  Territory. 

E.  National  Guard  Veterans  of  Oregon. 

F.  Honorary  Quartermaster  General. 

G.  Decrepit  Officers. 
V.  ENLISTMENT. 

A.  Qualifications  for,  in  Militia Page  709 

B.  Enlistment  of  Member  of  Militia  in  Regular  Army. 
VI.  INSTRUCTION. 

A.  Theoretical  Instruction. 

1.  At  Regular  Army  schools Page  710 

2.  By  details  from  Regular  Army. 

a.  By  Regular  officer — active  list Page  711 

b.  By  Regular  officer— retired Page  712 

c.  By  enlisted  man — Regular  Army Page  713 

d.  Philippine  Scout  officer  not  eligible  for  detail. 


militia:  synopsis.  699 

VI.  INSTRUCTION— Continued. 

B.  Field  Instruction. 

1.  State  camps  of  instruction. 

a.  Governor  selects  portion  for  participation. 

b.  Governor  selects  place  of  instruction Page  714 

c.  Instruction  may  be  given  with  permission  on  a  military 

reservation. 

d.  Subsistence  stores  may  be  sold  to  officers. 

e.  Disbursing  officer. 

(1)  Not  entitled  to  commutation  of  quarters  in  camp. 

(2)  Purchase  of  rations. 

(3)  Hiring  of  wagon  transportation  for  practice  march. 

(4)  Medical  attendance  for  man  en  route  to  camp. 

(5)  Expense  of  sending  sick  man  to  his  home. 

(6)  Payment  for  damage  to  crops Page  715 

(7)  Reimburse  officers  who  had  purchased  transportation 

to  camp. 

(8)  Reimburse  officer  whose  horse  had  been  foundered 

in  camp. 

(9)  No  fund  for  entertainment  of  attaches. 

2.  Joint  camps  of  instruction  with  Regular  Army. 

a.  Lease  of  land  for. 

b.  Relative  rank  of  Regular  and  Militia  officers Page  716 

c.  What  constitutes  "participation." 

d.  Payments  made  by  Regular  officers. 

e.  Transportation — ^how  secured. 

f.  Automobile  transportation  not  allowed  in  certain  cases. 

g.  Sales,  subsistence  stores  to  officers  and  enlisted  men. 

h.  Allowances   limited    to   "pay,  subsistence,    and   transpor- 
tation." 

i.  Fuel  for  cooking,  and  hay  for  bedding Page  717 

j.  Baking  bread. 
k.  Bakery  profits. 

1.  Unauthorized  bills  for  transportation,  labor,  material,  board, 
lodging,  transfers,  and  hospital  expenses. 

m.  Damage  to  property Page  718 

n.  U.  S.  not  responsible  for  torts  of  officers Page  719 

C.  Target  Practice. 

1.  Acquisition  of  ranges,  etc. 

a.  By  setting  aside  public  land. 

b.  By  purchase. 

c.  By  lease. 

(1)  Ground  for  ranges  and  buildings  for  galleries,  leased 

and  expense  of  adaptation  met Page  720 

(2)  Execution  of  lease. 

(3)  Lease  for  several  years Page  721 

(4)  Insufficient  description  in  lease  with  actual  occu- 

pation. 

d.  Expenses  of  officer  in  selecting  range. 

e.  Insurance  of  buildings  on  range. 

f .  Issue  of  forage  to  mules  used  on  a  range Page  722 

g.  Range  may  be  equipped  with  water  plant, 
h.  United  States  will  not  protect  use  of  range. 

i.  Method  of  selecting  members  of  property  damage  boards. 


700  militia:  synopsis. 

VI.  INSTRUCTION— Continued. 

C.  Target  Practice — Continued. 

1.  Acquisition  of  ranges,  etc. — Continued. 

j.  Damage  to  property  leased  for  use  as  a  range. 
k.  A  target  range  may  be  rented  for  use  as  a  pasture. 

2.  Field  practice. 

a.  Promotion  of  under  Act  of  June  22,  1906 Page  723 

b.  A  State  competition  is  a  camp  of  instruction. 

c.  The  National  Match. 

D.  Inspection. 

1.  Year  preceding  allotment  is  "calendar  "  year Page  724 

Vn.  TRANSPORTATION. 

A.  Freight,  Storage,  and  Drayage  of  Equipment  for  Target  Range. 

B.  Transportation  of  New  Material  to  Militia  and  Return  of  Old 

TO  United  States. 

C.  Freight  from  State  Arsenal  to  Stations  of  Companies Page  725 

D.  Transportation  of  Target  Teams  to  National  Match. 

E.  When  Traveling  under  War  Department  Orders  Entitled  to 

50  Per  Cent  Land-grant  Reduction  the  Same  as  Regular  Troops. 

F.  Of  Armament  Foreman  op  a  District Page  726 

Vm.  ARMORY. 

A.  State's  Duty  to  Provide  Armory  Facilities. 

B.  May  Not  be  Used  for  Drill  Purposes  by  Aliens. 
IX,  UNITED  STATES  PROPERTY. 

A.  Issues. 

1.  Books,  clothing,  fire-control  equipment,  etc. 

2.  Act  of  May  27,  1908.     (35  Stat.,  399.) 

a.  Armament Page  727 

B.  Sales  to  a  State. 

1.  Request  must  be  by  governor — special  cases. 

C.  Loan  of  Property  to  Militia  not  Authorized Page  728 

D.  Governor's  Accountability. 

E.  Repair  of  Property Page  729 

F.  Recovery  op  Property  From  Men. 

G.  Disposition  of  Condemned  Clothing. 
H.  Surveying  Officer. 

I.  Surveying  Officer  Requires  Affidavits Page  730 

J.  United  States  Property  Carried  into  Volunteer  Service. 
X.  UNITED  STATES  FUNDS. 

A.  How  Disbursed. 

1.  Sec.  1667  Revised  Statutes,  remain  available  until  expended. 

2.  Turned  over  to  State  on  request  of  governor,  and  disbursed  under 

his  direction,  etc. 

B.  Inspection  of  Disbursing  Officer's  Account Page  731 

C.  Clerk  for  Disbursing  Officer  not  Allowed. 

D.  Hawaii  Held  to  be  a  Territory  for  Purpose  of  Allotment, 

E.  Veterinary  Attention  and  Care  of  Horses. 

F.  Caretaker  for  United  States  Property  can  not  be  Paid  From. 
'XL  PAY. 

A.  The  Adjutant  General  of  a  State. 

B.  Heads  of  Staff  Department,  at  State  Camps Page  732 

C.  Officers  Authorized  for  Pay  at  Joint  Encampment  With  Regular 

Army. 

D.  Pay  of  Disbursing  Officer. 

E.  Pay  of  Assistant  Surgeon. 


militia:  synopsis.  701 

XI.  PAY— Continued. 

F.  Extra  Pay  for  Keeping  Horse. 

G.  Longevity  Pay Page  733 

H.  Officer  on  Special  Duty  Preparing  Camp  Ground  for  Troops. 
I.   Pay  of  Members  of  Damaged  Property  Board. 

K.  Officer  on  Leave. 

L.  Retired  Officers. 

M.  Decrepit  Officers. 

N.  Pitmen,  Markers,  etc.,  of  Target  Ranges Page  734 

0.  En  Route  to  Rendezvous,  Preceding  Joint  Maneuvers. 
P.  Members  of  Rifle  Team. 

Q.  Claim  for  Pay  of  Deceased  Soldier. 
Xn.  SMALL  ARMS,  AMMUNITION,   AND  EQUIPMENT. 

A.  Exchange  of  New  for  Old Page  735 

B.  Issue  of  Ammunition Page  736 

Xm.  UNIFORM. 

A.  Federal  Control  Over. 

B.  Campaign  Badge Page  737 

XIV.  CORRESPONDENCE. 

A.  Penalty  Envelopes. 

B.  Telegrams Page  738 

C.  Op  Disbursing  Officer  with  War  Department. 
XV.  CANTEEN. 

A.  At  State  Maneuver  Camp  Ground. 
XVI.  NATIONAL  GUARD  OF  DISTRICT  OF  COLUMBIA. 

A.  Definition  of Page  739 

B.  Disbandment  of. 

C.  Retiring  Board. 

D.  Retirement. 

E.  Service  in,  of  Government  Employees Page  740 

F.  Uniform Page  741 

G.  Property  Responsibility. 

H.  Evidential  Value  of  Certificates  of  Officers. 

1.  Supplies. 

1.  Act  of  March  1, 1889.     (25  Stat.,  772) Page  742 

2.  Shares  in  $2,000,000,  clause  of  act  of  M^rch  2,  1903.  (32  Stat.,  942.) 

3.  Tj'-pe writing  machines. 

4.  Furniture. 

5.  Loan  of  property  to  National  Guard  of  District  of  Columbia  by 

Secretary  of  War,  not  authorized Page  743 

6.  Loan  of  2-mule  team  with  wagon  requested  by  District  National 

Guard. 
J.  Discharge  of  Enlisted  Men. 
XVn.  VOLUNTEERS. 

A.  Examinations  to  Determine  Class  of  Men  Eligible  for  Volun- 
teer Commission. 
XVm.  NAVAL  MILITIA. 

A.  Naval  Militia  of  the  States Page  744 

B.  Naval  Militia  of  the  District  of  Columbia. 
XIX.  NATURALIZATION  OF  ALIEN. 

A.  Service  in  Militia  Does  Not  Count  Toward Page  745 

XX.  HISTORY  OF  REGIMENTS. 

A.  Act  of  March  2,  1895. 
XXI.  OPINIONS  NOT  RENDERED  BY  JUDGE  ADVOCATE  GENERAL  ON 
MILITIA  QUESTIONS  THAT  RELATE  ONLY  TO  THE  STATE, 


702  MILITIA  I   A. 

I  A.  The  President  has  no  original  authority  over  the  mihtia  by- 
right  of  his  office.  He  can  only  call  them  out  when  Congress  provides 
for  his  doing  so  as  the  agent  of  the  United  States  for  such  purpose. 
When  the  call  is  complied  with  he  becomes  their  commander  in 
chief. ^  P.  51,  120,  Dec,  1891.  No  employment  of  the  militia,  save 
in  the  cases  presented  in  the  above  sections  of  the  Revised  Statutes 
and  in  the  act  of  January  21,  1903  (32  Stat.  775),  as  amended  by  the 
act  of  May  27,  1908  (35  Stat.  399),  constitutes  a  calling  forth  within 
the  meanmg  of  the  Constitution.  P.  60,  J^15,  July,  1893;  0.  186, 
Aug.,  1894;  232,  Mar.,  1895. 

I  A  1.  The  power  of  the  President  to  call  forth  the  Organized 
Militia  is  restricted  to  the  objects  mentioned  in  section  8,  article  1, 
of  the  Constitution,  'Ho  execute  the  laws  of  the  Union,  suppress 
insurrection,  and  repel  invasion."  There  is  no  power  to  call  forth 
the  militia,  much  less  employ  it,  in  ''anticipation  of  war."  Held, 
therefore,  that  the  President  is  without  power  to  call  forth  the 
Organized  Militia  for  the  purpose  of  garrisoning  military  posts  made 
vacant  by  the  sending  of  the  troops  of  the  Regular  Army,  for  any 
purpose,  beyond  the  continental  limits  of  the  United  States;  and 
that  it  can  only  be  so  employed  when  the  conditions  exist  which  would 
warrant  him  in  calling  forth  the  militia.     C.  16273,  June,  1904. 

I  B.  The  calling  forth  of  the  militia  into  the  United  States  service 
is  an  administrative  function,  a  ministerial  act,  in  which  the  Secretary 
of  War  may  issue  the  necessary  orders  as  the  organ  of  the  Executive; 
and  his  act  is  the  act  of  the  President.  P.  61, 55,  Aug.,  1893;  C.  2806, 
Dec.  18,  1896. 

I  C.  The  manner  of  the  calling  out  of  the  militia  by  the  President 
under  the  act  of  1795  (sec.  1642,  R.  S.),  is  indicated  by  the  Suprem'e 
Court  in  the  leading  case  of  Houston  v.  Moore,^  where  it  is  observed 
that,  "the  President's  orders  may  be  given  to  the  chief  executive 
magistrate  of  the  State,  or  to  any  militia  officer  he  may  think  proper." 
The  call  would  ordinarily  be  addressed  to  the  governor,  who,  in  most 
of  the  States,  is  made  commander  in  chief  of  the  active  militia  of  the 
State.  A  further  form  indeed  of  caffing  out  the  mihtia,  viz,  by  a  con- 
scription, was  authorized  during  the  civil  war  by  the  act  of  July  17, 
1862.  P.  51,  325,  Jan.,  1892;  C.  22878,  Nov.  27,  1908.  The  act  of 
May  27,  1908  (35  Stat.  400),  provides  that  it  shall  be  lawful  for  the 
President  to  issue  orders  for  caffing  out  the  militia  through  the 
governor  of  the  respective  State  or  Territory,  or  through  the  com- 
manding general  of  the  mihtia  of  the  District  of  Columbia,  from 
which  State,  Territory,  or  District  such  troops  may  be  called,  to  such 
officers  of  the  militia  as  he  may  tffink  proper.  Held,  that  should  the 
governor  refuse  to  act  as  the  channel  or  communication  from  the 
President  to  the  mffitia,  that  he  could  not  be  compelled  to  act,  but 
that  in  such  a  contingency  the  President  may  address  liis  orders 
direct  to  the  proper  organization  commanders  of  the  militia  forces. 
C.  4003,  Nov.  3,  1910. 

I  D.  Section  4  of  the  act  of  January-  21,  1903  (32  Stat.  776), 
authorizes  the  President  in  certain  contingencies  to  call  forth  the 
militia.     Held,  that  the  members  of  an  organization  that  has  been 

1  See  the  act  of  Jan.  21,  1903  (32  Stat.  775),  as  amended  by  the  act  of  May  27,  1908 
(35  Stat.  400),  and  sees.  5297,  5298,  and  5299,  R.  S. 

2  5  WTieaton,  15  (1820). 


MILITIA   I   E.  703 

SO  called  forth  would  be  compelled  to  enter  the  service  of  the  United 
States.  C.  14148,  Mar.,  1906,  and  Mar.,  1908.  Held  that  ^'calling 
forth"  mihtia  into  the  service  of  the  United  States  removes  it  from  the 
status  of  militia  as  that  term  is  used  in  section  1661,  R.  S.,  as 
amended.     C.  5455,  Dec.  19,  1898. 

I  E.  Under  sections  1642  and  5298,  R.  S.,  the  President  has  the 
power  to  call  the  militia  from  one  State  into  another  to  execute  the 
laws  of  the  Union,  suppress  insurrection,  and  repel  invasion.  C.  7574, 
June,  1900.  But  he  can  not  constitutionally  order  militia  ^'called 
into  the  service  of  the  United  States'*  for  the  purpose  of  invading  a 
foreign  countrv.^  C.  8937,  4073,  Mar.  and  Apr.,  1898.  Held,  that 
as  the  laws  of  the  Union  are  operative  in  Porto  Rico  and  in  the 
Philippine  islands,  that  the  militia  of  the  United  States  may  be  used 
in  those  islands  for  any  of  the  purposes  for  which  it  may  be  used  as 
defmed  in  section  8,  article  1,  of  the  Constitution.  C.  16273,  May 
3,  1904. 

Held,  that  the  President  is  not  authorized  to  call  out  the  National 
Guard  and  send  it  into  a  foreign  country  as  a  part  of  an  army  of 
occupation,  either  in  case  of  war  or  in  case  of  mtervention,  unless 
as  an  incident  of  its  use  in  repelling  invasion  or  in  executing  laws 
which  may  be  extended  over  such  territory,  and  such  use  would  be 
unauthorized  and  contrary  to  the  Constitution.^  C.  1414^}  -^6^-  ^^) 
1911. 

1  F.  Held,  that  the  President  is  the  sole  judge  of  the  necessity  for 
calling  forth  the  militia  and  that  his  judgment  is  conclusive  upon 
all  others.^     C.  I4148,  Dec.  29,  1911. 

II  A.  Under  the  Constitution,  Congress  is  given  power  "  to  provide 
for  calling  forth  the  militia  to  execute  the  laws  of  the  Union,  suppress 
insurrection  and  repel  invasion."  No  authority  is  given  to  call  the 
militia  into  the  service  of  the  United  States  for  any  other  purpose. 
Upon  the  question,  therefore,  as  to  whether  the  United  States  was 
entitled,  under  section  5  of  the  act  of  July  25,  1866  (14  Stat.  241),  to 
have  the  Oregon  militia,  as  "troops  of  the  United  States,"  trans- 
ported free  of  charge  over  the  Southern  Pacific  Railroad,  a  land- 
grant  road,  while  en  route  to  the  place  of  encampment,  to  participate  in 
joint  maneuvers  with  the  Army,  it  was  Tield,  that  as  the  militia  in  ques- 
tion were  not  "  called  forth"  in  the  manner  or  for  any  of  the  purposes 
prescribed  in  the  Constitution,  they  could  not  be  regarded  as  "  troops 
of  the  United  States"  within  the  meaning  of  said  act;  and  that  the 
railroad  company  could  not  be  required,  therefore,  to  transport  them 
at  its  own  expense  under  its  contract  with  the  United  States.* 
C.  20204,  Aug.,  1906;  14971,  Feb.  and  July,  1904;  ^^025,  Sept,  1904. 

^  Ordronaux  Constitutional  Legislation  501;  Kneedler  v.  Lane,  45  Penn.,  238;  Mar- 
tin V.  Mott,  12  Wheat.,  19;  Houston  v.  Moore,  15  id.,  1.  See  sec.  4  of  the  act  of  May 
27, 1908,  (35  Stat.  400),  which  recognizes  service  of  the  militia  outside  of  the  territorial 
limits  of  the  United  States.  Such  service  could  arise  in  connection  with  repelling 
invasion,  as  is  indicated  in  Martin  v.  Mott  (12  Wheat.,  19,  29). 

2  Art.  I,  sec.  8,  U.  S.  Constitution.  See  29  Op.  Atty.  Gen.— Feb.  17, 1912,  in  which 
he  held  that  the  President  can  not  call  the  militia  forth  for  the  purpose  of  sending 
it  into  a  foreign  country  as  a  part  of  an  army  of  occupation. 

3  See  Martin  v.  Mott  (12  Wheat.,  19,  29)  Luther  v.  Brown  (7  New,  1),  also  Story  on 
the  Constitution,  sec.  1211. 

^  ■*  See  XVI  Comp.  Dec.  70,  in  which  it  is  held  that  the  militia  so  traveling  are 
mcluded  in  the  term  "  troops"  as  used  in  the  act  of  July  25,  1866.  (14  Stat.  241). 
See  XIV  Comp.  Dec.  912,  where  no  deduction  is  allowed  in  the  case  of  a  target  team. 
But  see  Militia  VII  E  post  in  which  it  is  held  that  militia  en  route  to  joint  encamp- 
ment are  entitled  to  land-grant  deductions. 


704  MILITIA  11   B. 

II  B.  A  joint  encampment  of  the  militia  and  a  part  of  the  Regular 
Army  was  about  to  be  held  in  the  Department  of  the  East.  The 
question  was  raised  whether  or  not  the  militia  there  in  camp  would 
be  in  the  service  of  the  United  States,  so  that  they  would  be  subject 
to  the  articles  of  war  for  the  Army,  as  provided  in  section  9  of  the  act 
of  January  21,  1903.  Held,  that  section  15  of  the  act  of  January 
21,  1903,  confers  no  authority  upon  the  President  or  the  Secretary  of 
War  to  issue  orders  to  the  organized  militia  in  time  of  peace,  or  at 
any  time,  or  under  any  condition  save  in  the  cases  enumerated  in  the 
Constitution  and  expressly  provided  for  in  sections  4,  5,  and  6  of  the 
act  of  January  21,  1903.  C.  14971,  July  28, 1904;  I4I48-A,  Aug.  29, 
1904. 

As  the  militia  forces  while  participating  in  the  recent  maneuvers 
at  West  Point,  Ky.,  were  not  ''called  forth"  in  the  manner  or  for  any 
of  the  purposes  prescribed  in  the  Constitution,  Tield,  that  they  con- 
tinued to  be  State  forces  and  did  not  at  any  time  pass  into  the  service 
of  the  United  States  and  similarly  Jield,  that  if  any  member  of  a  mili- 
tary organization  received  injuries  during  the  period  of  his  partici- 
pation in  any  joint  encampment  necessitating  medical  attendance  the 
claimant  for  compensation  for  such  service  should  apply  to  the  State 
government  for  relief,  and  not  to  the  War  Department,  as  the  injuries 
were  incurred  in  the  service  not  of  the  United  States  but  of  the  State. 
C.  16925,  Sept  22, 1904;  HHS,  Feb.  11, 1904,  Aug.  9, 1905,  Oct  3,  12, 
and  14,  1907;  20402,  Aug.  3  and  Sept  26,  1906.^  The  horse  of  a 
trooper  of  the  First  Cavalry,  New  Jersey  National  Guard,  died 
during  the  march  to  Mount  Gretna,  Pa.,  to  participate  in  joint 
maneuvers  with  the  Regular  Army.  Held,  that  the  War  Department 
is  not  responsible  for  the  loss  of  the  horse  and  the  United  States 
can  not  under  existing  law  reimburse  for  the  loss  of  that  horse. 
Held,  also,  that  the  allotment  of  the  State  of  New  Jersey,  under 
section  1661,  R.  S.,  may  not  be  used  for  that  puipose.  G.  20402, 
Sept  26,  1906. 

II  C.  As  officers  of  the  Organized  Militia  are  not  Federal  officers, 
lield,  that  a  medical  officer  of  the  National  Guard  can  not  lawfully 
make  the  examination  of  school  teachers,  which  must  be  made  under 
the  requirements  of  the  Philippine  civil  service  regulation  by  a  med- 
ical officer  who  holds  office  under  the  United  States.  O.  I4148-E, 
Mar.  11, 1908. 

II  D.  Sections  3748  and  5438,  R.  S.,  describe  the  offenses  of  selling 
arms,  equipments,  ammunition,  etc.,  by  any  person  employed  in  the 
military  service  of  the  United  States,  and  of  purchasing  the  same  from 
such  person,  and  provides  the  punishment  for  the  commission  of  such 
offenses.  Held,  that  members  of  the  Organized  Militia  are  not  in  the 
service  of  the  tjnited  States  in  the  sense  contemplated  in  these  sec- 
tions.    C.  14148-E,  Mar.  23, 1908. 

III  A.  Section  3  of  the  act  of  January  21,  1903  (32  Stat.  775),  pro- 
vides that  within  five  years  from  January  21,  1903,  the  organization  * 
of  the  Organized  Militia  shall  be  the  same  as  that  which  is  now  or  may 
hereafter  be  prescribed  for  the  Regular  and  Volunteer  Armies  of  the 
United  States.  Held,  that  until  the  five  years  shall  have  expired,  if  a 
State  has  not  altered  the  organization  of  its  Organized  Militia  to  con- 

^See  Acker  v.  Bell  (57  S.  R.  357)  in  which  it  is  held  that  the  word  "organization " 
as  used  above  does  not  relate  to  or  include  the  enlistment  of  a  soldier,  but  relates  to 
the  distribution  of  the  personnel  of  the  Army  or  militia  into  units. 


MILITIA   III   B.  705 

form  to  that  prescribed  for  the  Regular  or  Volunteer  Army  of  the 
United  States,  the  authorized  Organized  Militia  of  the  State  is  that 
force  which  was  in  existence  January  21,  1903,  which  force  can  par- 
ticipate in  the  apportionment  of  funds  appropriated  by  section  1661, 
R.  S.,  as  amended  by  the  act  of  February  12,  1887  (24  Stat.  401),  and 
the  act  of  June  6,  1900  (31  Stat.  662).  0.  U148,July  2,  1903.  Held 
that  any  change  in  the  organization  of  the  militia  of  a  State  within 
five  years  after  January  21,  1903,  must  be  to  make  the  organization 
conform  to  that  of  the  Regular  or  Volunteer  Army,  or  else  the  extra 
officers  so  created  can  not  be  recognized  by  the  War  Department  in 
making  payments  under  section  15  of  the  act  of  January  21,  1903,  or 
in  passing  accounts  for  payment  made  by  a  disbursing  officer  of  a 
State  or  Territoi^  or  the  District  of  Columbia  under  the  authority  to 
that  end  wliich  is  conferred  by  section  14  of  the  act  of  January  21, 
1903.  C.  14148,  July  7, 1903.  Held,  that  in  order  that  a  State  may 
quafify  for  sharing  in  the  annual  apportionment  of  the  appropriation 
provided  in  section  1661,  R.  S.,  as  amended,  it  must  provide  an 
organization  for  its  Organized  Mifitia  which  is  the  same  as  that  pro- 
vided by  statutes  for  the  Regular  or  Volunteer  Armies  of  the  Umted 
States.  C.  14148-C,  May  31,  July  8,  and  July  29,  1907.^  Held  that 
section  3  of  the  above  act  does  not  require  the  States  to  copy  the 
retirement  feature  of  the  Regular  Army.  C.  I4148-D,  Oct.  24,  1907. 
Ill  B.  Under  existing  laws  on  organization  of  the  Army  the 
Infantry  is  organized  into  companies  and  battahons  of  four  com- 
jxanies  each  and  regiments  of  three  battalions  each.  The  Cavalry 
is  organized  into  trooQs  and  squadrons  of  four  troops  each  and  regi- 
ments of  three  squadrons  each,  and  the  Field  Artillery  is  organized 
into  batteries  and  battalions  of  three  batteries  each  and  into  regi- 
ments of  two  battalions  each.  Held,  that  under  existing  law,  if  the 
Organized  Mfitia  of  a  State  includes  Infantry  it  must  be  organized 
into  companies.  If  it  includes  four  companies,  they  must  be  organ- 
ized into  a  battafion.  If  it  includes  three  battalions,  they  must  be 
organized  into  a  regiment.  If  the  Organized  Militia  includes  Cavalry, 
it  must  be  organized  into  troops.  If  it  includes  four  troops,  they 
must  be  organized  into  a  squadron.  If  it  includes  three  squadrons, 
they  must  be  organized  into  a  regiment.  If  the  Organized  Militia 
includes  Field  Artillery,  it  must  be  organized  into  batteries.  If  it 
includes  three  batteries,  they  must  be  organized  into  a  battalion.  If 
it  includes  two  battalions,  they  must  be  organized  into  a  regiment.^ 
C.  14148-B,  Hay  14,  1906;  I4148-D,  Sept.  16  and  25,  1907.  Also 
lield,  that  as  long  as  that  portion  of  the  Organized  Militia  of  a  State, 
which  consists  of  Infantry,  Cavalry,  and  Field  Artillery,  conforms  to 
the  organization  prescribed  in  section  3  of  the  act  of  January  21, 
1903,  it  will  be  entitled  to  receive  the  annual  allotments  in  the 
operation  of  section  1661,  R.  S.,  as  amended.  Held,  further,  that 
the  establishment  of  higher  commands  than  regiments  is  committed 
to  the  discretion  of  the  several  States.     C.  I4148-F,  June  29, 1909. 

^  See  act  of  June  22,  1906  (34  Stat.  449),  which  requires  each  State  to  have  at  least 
100  men  regularly  enlisted,  uniformed,  and  organized  for  each  Senator  and  Repre- 
sentative to  which  Burh  State  is  entitled  in  the  Congress  of  the  United  States. 

2  Sec.  3  of  the  act  of  Jan.  21,  1903  (32  Stat.  775),  as  amended  by  the  act  of  May  27, 
1908  (35  Stat.  399),  provides  that  this  requirement  that  the  organization  of  the  militia 
shall  conform  to  that  of  the  Regular  Army  is  "subject  in  time  of  peace  to  such  general 
exceptions  as  may  be  authorized  by  the  Secretary  of  War." 

31106°— 12 45 


706  MILITIA  III   C. 

Ill  C.  As  the  ''machine-gun  platoon"  is  not  an  essential  element 
either  of  the  organization  of  a  battalion  or  regiment  in  the  Regular 
Army,  held,  that  if  a  State  has  made  no  provision  for  a  machine-gun 
platoon  it  is  not  required  to  create  one  m  order  to  comply  with  the 
requirement  contained  in  section  3  of  the  act  of  January  21,  1903, 
that  the  organization  of  the  mihtia  shall,  within  fixe  years,  be  the 
same  as  that  of  the  Regular  or  Volunteer  Armies  of  the  United  States. 
Further  lield,  that  if  a  State  has  made  provision  for  a  machine-gun 
platoon,  section  3  of  the  act  of  January  21,  1903,  requires  that  its 
organization  must  be  made  to  conform  to  that  of  a  machine-gun 
platoon  in  the  Regular  Army  as  fixed  in  War  Department  orders  or 
regulations.!     C.  1J^1I^8-G,  June  28,  1907. 

Ill  D.  The  acts  of  January  25,  1907  (34  Stat.  861),  and  May  11, 
1908  (35  Stat.  124),  prescribe  the  ratings  of  enlisted  men  in  the  Coast 
ArtUlery  Corps  of  the  Regular  Army.  Held,  that  these  ratings  are 
fully  applicable  to  the  Coast  Artillery  troops  of  the  Organized  Militia 
in  the  operation  of  sections  14  and  15  of  the  act  of  January  21,  1903, 
as  amended.     G.  1J,.148-H,  July  1,  1910. 

Ill  E.  If  a  State  discriminates  in  the  composition  of  its  Organized 
Mihtia  against  a  class  because  of  color,  lield,  that  the  act  of  January 
21,  1903  (32  Stat.  775),  deprives  the  Federal  Government  of  the 
power  to  devise  or  to  apply  an  adequate  remedy.  G.  14-14^-B,  Mar. 
10,  1906. 

Ill  F.  Held,  that  as  office  in  the  militia  is  not  civil  office,  an  officer 
of  the  Regular  Army  is  not  prevented  by  the  restriction  in  section 
1222,  R.  S.,  from  accepting  a  commission  in  the  militia.^  G.  29273, 
Dec.  2,  1911. 

Ill  G.  As  the  United  States  provides  itself  with  sufficient  adju- 
tants general  to  execute  that  class  of  staff  duty,  Tield,  that  section  3 
of  the  act  of  January  21,  1903,  permits  a  State  to  provide  itself 
with  sufficient  adjutants  general  to  execute  that  class  of  staff  duty 
for  its  Organized  Militia.  ^  G.  I4I4.8-D,  Oct.  8,  1907. 

Ill  H.  Paragraph  1,  Circular  11,  Department  of  the  Gulf,  June  2, 
1908,  required  the  quartermasters  general  of  the  Organized  Militia 
of  the  different  States  which  were  to  participate  in  the  joint  encamp- 
ment at  Chickamauga  Park,  Ga.,  to  issue  the  bills  of  lading.  Held, 
that  the  quartermaster  general  of  a  State  may  lawfully  be  desig- 
nated as  a  quartermaster's  agent  in  connection  with  the  joint  encamp- 
ments of  the  Regular  Army  and  Organized  Militia,  to  assist  the  Quar- 
termaster's Department  in  the  performance  of  the  duties  with  which 
that  department  is  charged  in  the  current  act  of  appropriation.  G. 
14148-F,  May,  1909;  27148,  Aug.,  1910.  Held,  that  it  has  been  cus- 
tomary to  designate  quartermasters  general  of  State  militia  as  quar- 
termaster agents  for  the  purpose  of  transporting  the  militia.  G. 
27148,  Aug.,  1910.  Held,  tnat  in  his  capacity  as  agent  of  the  Quar- 
termaster's Department  he  may  use  penalty  envelopes  in  his  official 
correspondence.     G.  1414^-^,  July,  1908. 

Ill  I.  Upon  request  by  the  governor  of  a  State  for  information  as 
to  whether  or  not,  in  the  selection  of  his  aids  he  is  restricted  by  sec- 
tion 3  of  the  actof  January  21,  1903,  to  officers  already  commissioned 
in  the  Organized  Militia  of  the  State,  lield  that  he  is  not  so  restricted. 
G.  14148-F,  Aug.  6,  1908. 

^  See  footnote  to  previous  paragraph. 

2  Concurred  in  by  the  Attorney  General  Jan.  31,  1912.     29  Op.,  298, 


MILITIA   III   J.  707 

III  J.  In  view  of  the  exact  language  used  in  the  proviso  of  section 
3  of  the  act  of  January  21,  1903,  held,  that  only  those  privileges  can 
be  authorized  4:o  the  National  Guard  which  had  become  accustomed 
before  May  8,  1792,  and  which  have  been  enjoyed  continuously  since 
that  date.     C.  I4148,  Oct.  8,  1907,  and  July  11,  1911. 

Ill  K.  There  is  no  law  or  regulation  of  the  United  States  which 
would  prevent  a  retired  enlisted  man  from  organizing  and  drilling 
a  militia  company  or  would  prevent  him  from  accepting  an  office 
or  employment  under  a  State.  G.  3638,  Nov.  8,  1897,  and  Jan.  9, 
1909. 

III  L.  If  the  enUsted  men  of  a  company  of  students  at  a  college 
are  over  the  age  of  18,  and  if  there  are  enough  students  over  that 
age  to  furnish  a  constant  membersliip  in  the  school  organization 
equal  to  the  minimum  prescribed  by  law,  held,  that  the  mere  fact 
that  they  are  matriculated  students  of  an  institution  of  learning 
would  not  operate  to  defeat  their  contracts  of  enlistment  or  to 
deprive  the  State  of  the  right  to  regard  them  as  a  part  of  its  Organ- 
ized Mihtia  in  all  matters  relating  to  the  expenditure  of  funds  arising 
in  the  operation  of  section  1661,  R.  S.,  as  amended,  or  other  acts  of 
legislation  in  pari  materia.     0.  I4148-O,  Apr.  11,  1910. 

IV  A.  In  view  of  the  restriction  contained  in  section  10,  article  1, 
of  the  Constitution  of  the  United  States,  which  provides  that  "No 
State  shall,  without  the  consent  of  Congress,  keep  troops,  or  ships 
of  war  in  time  of  peace  *  *  *^  or  engage  in  war  unless  actually 
invaded,  or  in  such  imminent  danger  as  will  not  admit  of  delay,'' 
held,  that  on  January  21,  1903,  the  date  of  approval  of  the  general 
militia  law,  there  were  in  existence  in  the  several  States  and  Terri- 
tories, for  which  there  was  no  authority,  military  organizations 
wliich  did  not  conform  to  the  organization  prescribed  in  the  act  of 
May  8,  1792  (1  Stat.  271),  and  which  force  was  in  fact  maintained 
by  the  States  in  disregard  of  the  requirement  of  the  Constitution 
above  cited.  C.  I4148,  July  2, 1903.  Also  held,  that  because  of  the 
restriction  contained  in  the  above  section  of  the  Constitution  of  the 
United  States,  it  is  beyond  the  power  of  a  State,  without  the  con- 
sent of  Congress,  to  create  a  military  force  which  shall  form  a  part 
of  its  mUitia  and  shall  at  the  same  time  be  exempt  from  being  called 
forth  by  the  President.     C.  I4148,  Sept.  5,  1903,  and  Aug.  10,  1908. 

IV  B.  Held,  that  a  company  of  cadets  composed  of  boys  under  18 
years  of  age  can  not  be  considered  militia,  and  even  if  organized  and 
uniformed  can  not  be  entitled  to  receive  the  benefits  provided  for  in 
section  14  of  the  act  of  January  21,  1903  (32  Stat.  775),  as  that  act 
limits  the  militia  to  able-bodied  men  between  the  ages  of  18  and  45. 
C.  14148-A,  Dec.  2,  1905.  Held  that  the  ''Fremont  Signal  Corps," 
a  purely  voluntary  organization  which  forms  no  part  of  the  National 
Guard  of  California,  is  not  entitled  to  receive  stores  of  any  kind  from 
the  United  States  under  the  act  of  January  21,  1903.  C.  14^4-0^ 
May  29,  1903.  Held,  that  there  is  no  authority  of  law  by  which 
any  part  of  the  Federal  appropriation  for  the  militia  may  be  em- 
ployed to  cover  the  expenses  of  sending  Company  A,  Veteran  Re- 
serves of  Cafifornia,  which  is  not  a  part  of  the  Organized  Militia 
of  the  State,  to  the  St.  Louis  Exposition.  G.  16039,  Mar.,  1904. 
Held,  that  a  cadet  corps  was  not  contemplated  by  the  general  militia 
act  of  January  21,  1903  (32  Stat.  775),  and  that  such  an  organiza- 
tion at  the  West  Virginia  University  does  not  constitute  a  part  of 


708  MILITIA  IV  C. 

the  Organized  Militia  of  the  State  of  West  Virginia.  C.  I4148-D, 
Dec.  17,  1907. 

IV  C.  Held,  that  the  insular  police  of  Porto  Rico,  which  has  not  the 
legal  status  of  mihtia,  is  not  entitled  to  share  in  the  appropriation 
made  by  the  General  Government  for  the  support  of  the  militia. 
C.  I46O4.,  May  7,  1903,^  and  Jan.  3,  1906.  Held,  that  the  Alaska 
Indians  do  not  come  within  the  rules  of  eligibihty  for  membership 
in  the  mihtia  as  prescribed  in  the  act  of  January  21,  1903  (32  Stat. 
775).  _  0.  I4O86,  Jan.  31,  1903.  As  the  establishment  of  a  force  of 
Organized  Militia  in  a  Territory  is  a  legislative  act  lying  quite  beyond 
the  power  of  the  governor,  whose  acts  in  that  regard  must  be  in 
execution  of  the  will  of  the  legislature,  and  as  Congress  has  provided 
no  legislative  department  for  the  Territory  of  Alaska,  lield,  that 
before  the  governor  of  Alaska  can  act  in  the  matter  of  organizing 
militia  it  will  be  necessary  that  Congress  take  the  necessaiy  steps 
looking  to  the  estabhshment  of  a  Territorial  militia.  C.  14125,  Dec. 
14,  1907. 

IV  D.  The  Indian  Territory  has  no  governor  or  other  territorial 
authority  competent  to  organize  a  force  of  militia.  No  militia  force, 
therefore,  has  ever  been  organized  in  that  Territory,  and  no  appor- 
tionment has  been  made  to  that  Territory  of  funds  accruing  in  the 
operation  of  section  1661,  R.  S.,  as  amended.  Held,  that  there  is 
no  authority  for  organizing  a  company  of  militia  of  Indians  in  the 
Indian  Territory.  C.  3076,  May,  1897.  Also  held,  that  the  organi- 
zation of  ''boys"  in  the  Indian  Territory  as  home  guards  is 
unlawful  and  can  not  be  authorized  by  the  War  Department. 
C.  11099,  Aug.  22  and  Nov.  20,  1901.  The  Congress,  in  sections 
467,  2132,  and  2134-2137,  R.  S.,  has  expressly  forbidden  the  sale 
of  arms  or  ammunition  in  the  Indian  Territory.  Request  was  made 
for  60  or  more  of  the  latest  pattern  United  States  rifles,  with  neces- 
sarjr  ammunition  and  accouterments,  for  the  purpose  of  arming  and 
equipping  a  mihtary  company  which  it  is  proposed  to  organize  in 
the  Indian  Territory.  Held,  that  there  is  no  authority  of  law  for  such 
issue  of  arms  or  munitions  of  war.     C.  11099,  Mar.  23,  1907. 

IV  E.  Officers  and  enlisted  men  in  the  National  Guard  of  the 
State  of  Oregon  may,  after  seven  years'  service,  or  because  of  disa- 
bility for  active  service,  be  transferred  to  a  list  known  as  the ''  National 
Guard  Veterans,"  and  shall  retain  their  rank  and  be  entitled  to  wear 
the  uniform.  Held,  that  such  ofiicers  and  enlisted  men  are  not  a  part 
of  the  Organized  Mihtia  of  that  State.     C.  I4148-E,  May  29,  1908. 

IV  F.  As  one  who  holds  an  ''honorary"  commission  as  (quarter- 
master general  of  a  State  is  not  a  part  of  the  Organized  Militia  of  the 
State,  Tield,  that  he  is  not  eligible  for  appointment  as  disbursing  officer 
of  the  State.     C.  I4148-E,  May  12,  1908. 

IV  G.  It  is  within  the  authority  of  Congress  to  impose  reasonable 
limits  of  age  upon  commissioned  officers  as  a  condition  precedent  to 
the  assistance  in  the  way  of  money  and  war  material  which  it  affords 
to  the  Organized  Militia  of  the  several  States.  Held,  that  this  would 
not  be  an  invasion  of  the  appointing  power  in  respect  to  the  officers  of 
the  Organized  Militia  which  is  expressly  reserved  to  States  by  the  Con- 
stitution of  the  United  States.     C.  14148-G,^  Feb.  12,  1910. 

Held,  that  as  the  Government  may  condition  its  allotment  to  the 
militia  upon  the  conformation  of  the  National  Guard  to  the  physical 
standards  of  the  Regular  Army,  it  can  deny  pay  to  a  militia  officer 


MllLITIA  V  A.  709 

upon  the  ground  that  he  is  not  physically  fit.     C.  14911,  Mar.  7, 
1911. 

V  A.  The  qualifications  for  enlistment  in  the  militia  depend  on  the 
laws  of  the  States.*  Held,  that  the  prohibition  contained  in  section  2 
of  the  act  of  August  1,  1894  (28  Stat.  216),  providing  that  no  soldier 
whose  service  during  his  last  preceding  term  of  enlistment  has  not 
been  honest  and  faithful  shall  be  again  enlisted  in  the  Army,  does  not 
preclude  enlistment  in  the  militia  of  a  State.  C.  18021 ,  May  19,^  1905. 
As  there  is  no  enactment  of  Congress  which  restricts  service  in  the 
militia  of  a  particular  State  to  citizens  of  that  State,  lield,  that 
noncitizensliip  in  such  a  State  would  not,  under  section  4  of  the  act 
of  January  21,  1903  (32  Stat.  775),  operate  to  defeat  a  contract  of 
enlistment  entered  into  by  a  nonresident  who  is  a  student  of  a  college 
within  that  State  if  the  organization  to  which  the  student  belonged 
should  be  called  into  the  service  of  the  United  States.  C.  I4I48-G, 
Apr.  11, 1910.  Held,  that  the  status  of  a  retired  soldier  of  the  United 
States  Army  would  not  be  affected  by  accepting  the  position  of  ser- 
geant major  in  a  regiment  of  the  Organized  Militia  of  a  State.  C. 
14911,  Jan.  29  and  July  11,  1910.  Held,  that  there  is  no  legal  objec- 
tion to  the  enlistment  in  the  National  Guard  of  a  retired  officer  of  the 
Regular  Army,  but  the  expediency  of  making  such  an  enlistment 
is  not  apparent.     C.  I4148-G,  Oct.  25,  1909. 

V  B.  Upon  request  for  an  opinion  as  to  whether  or  not  a  recruiting 
officer  of  the  Regular  Army  has  the  right  to  enlist  men  of  the  National 
Guard,  before  they  are  discharged  from  the  ^uard,  field,  that  the  enlist- 
ment of  a  member  of  the  National  Guard  m  the  Regular  Army  does 
not  operate  as  a  discharge  from  the  National  Guard;  and  that  by  so 
enlisting  he  becomes  and  remains  liable  to  such  penalties  as  may  be 
authorized  by  the  law  of  the  State,  Territory,  or  district  in  whose 
militia  he  has  been  enlisted.^  C.  5753,  Jan.,  1899;  13943,  Jan.,  1903, 
Jan.  3,  1905,  and  Nov.  19,  1907;  16594,  July,  1904.  An  appoint- 
ment to  a  cadetship  at  West  Point  does  not  discharge  an  enlisted 
man  from  the  mihtia  of  a  State.     C.  26337,  Mar.  16,  1910. 

VI  A  1.  Section  16  of  the  act  of  January  21,  1903  (32  Stat.  778), 
provides  ^'That  whenever  any  officer  of  the  Organized  Militia  shall, 
upon  recommendation  of  the  governor  of  any  State,  Territory,  or  gen- 
eral commanding  the  District  of  Columbia,  and  when  authorized  by 
the  President,  attend  and  pursue  a  regular  course  of  study  at  any 
military  school  or  college  of  the  United  States,  such  officer  shall  receive 
from  the  annual  appropriation  for  the  support  of  the  Army  the  same 
travel  allowances  and  quarters,  or  commutation  of  quarters,  to  which 
an  officer  of  the  Regular  Army  would  be  entitled  if  attending  such 
school  or  college  under  orders  from  i)roper  military  authority,  and 
shall  also  receive  commutation  of  subsistence  at  the  rate  of  one  dollar 
per  day  while  in  actual  attendance  upon  the  course  of  instruction." 

^  See  Ackeri;.  Bell  (57  S.  R.,  356),  in  which  it  was  held  that  under  the  constitution 
and  statutes  of  a  particular  State,  a  minor  over  the  age  of  18  years  is  bound  by  the 
enlistment  into  the  military  service  of  the  State,  even  though  the  consent  of  his 
parents  was  not  obtained  for  such  enlistment. 

2  Such  enlistments  are  now  forbidden  by  Cir.  13,  Adj.  Gen.  OfSce,  1903;  and  any 
member  of  the  militia  or  National  Guard  of  any  State  who  now  enlists  in  the  Regular 
Army  without  first  having  obtained  a  discharge  from  said  militia  or  National  Guard  is 
guilty  of  the  offense  of  fraudulent  enlistment,  for  which  he  may  either  bo  tried  by 
court-martial  or  discharged  without  honor,  at  the  option  of  the  Government.  Also 
see  Cir.  62,  War  Dept.,  S.  1908. 


710  MILITIA  VI  A  1. 

Held,  that  officers  of  the  Organized  Mihtia  attending  mihtary  schools 
in  the  operation  of  the  above  law  are  not  in  the  military  service  of 
the  United  States.  C.  IJ^l^S-D,  Dec.  21,  1907,  and  Jan.  22,  1908. 
Held,  that  as  attendance  by  military  officers  at  such  schools  is,  by  the 
strongest  implication,  restricted  to  officers  on  the  active  list,  a  retired 
officer  is  not  authorized  to  attend  a  military  school  of  the  United 
States  as  a  student.^  C.  I4148-E,  Feb.  7,  1908.  Held,  that  a  retired 
officer  of  the  organized  Militia  is  not  thereby  eligible  to  attend  the 
United  States  Engineer  School  at  Washington  Barracks,  D.  C.  C. 
14148-F,  Oct.  29,  1908.  Held,  that  such  a  militia  officer  so  attending 
a  military  school  of  the  United  States  is  entitled  to  the  same  travel 
allowances  as  an  officer  of  the  Regular  Army  would  have  been,  had  he 
been  so  detailed.     C.  I4148-A,  Dec.  6,  1905. 

A  captain  of  the  National  Guard  had  successfully  completed  the 
course  at  the  Infantry  and  Cavalry  School  at  Fort  Leavenworth,  Kans. 
Held,  that  he  may  be  ordered  to  his  home  by  the  governor  of  his 
State  and  detailed  for  the  course  at  the  Staff  College  at  Fort  Leaven- 
worth, Kans.,  and,  if  such  detail  is  authorized  by  the  President,  he 
will  be  entitled  to  mileage  under  the  above  law.  C.  1414^-^1  *^'^^y 
12,  1906.  An  officer  of  the  Organized  Militia  was  attending  the  Staff 
College  at  Fort  Leavenworth,  Kans.,  and  lived  in  the  adjoining 
city  of  Leavenworth,  Jield,  that  he  was  not  entitled  to  mileage  while 
traveling  to  and  from  Fort  Leavenworth.     C.  14148-B,^  Nov.  6, 1906. 

In  the  case  of  National  Guard  officers  who  are  attending  garrison 
schools  of  the  United  States  and  who  are  the  recipients  of  commu- 
tation of  quarters,  held,  that  under  the  act  of  March  3,  1909  (35 
Stat.  742),  they  are  entitled  to  be  furnished  with  heat  and  light,^ 
which  is  a  lawful  charge  against  the  appropriation  for  regular  supplies 
in  the  act  of  March  3,  1909.  C.  I4I48-G,  Jan.  19,^  1910,  Jan.  27 
and  June  19,  1911.  Held,  that  a  militia  officer  who  is  so  attending 
a  military  school  or  college  in  the  United  States  is  entitled  to  com- 
mutation of  quarters.  C.  1414^-^1  June  15, 1905.  In  the  case  of  a 
militia  officer  who  was  attending  the  Post  School  at  Fort  Wayne, 
Mich.,  lield,  that  he  would  be  entitled  to  the  same  commutation  of 
quarters  that  a  Regular  officer  would  have  been  entitled  to  under  the 
same  circumstances,  but  if  he  were  absent  during  the  entire  period 
of  the  course  there  would  be  a  failure  to  ''pursue  a  regular  course  of 
study,"  which  would  operate  to  prevent  the  right  to  quarters  or 
commutation  therefor.  C.  I4I48-D,  Dec.  21,  1907.  As  the  act  of 
May  11,  1908  (35  Stat.  114),  which  provides  the  means  for  the  pay- 
ment of  commutation  of  quarters,  is  restricted  in  its  operation  to 
''officers  of  the  National  Guard,"  which  is  synonymous  with  the  term 
''Organized  Militia,"  as  used  in  the  act  of  January  21,  1903,  lield 
that  such  funds  can  not  be  used  to  pay  commutation  of  quarters  to  a 
retired  officer  of  the  National  Guard  of  a  state  or  a  civilian  who 
has,  under  section  23  of  the  act  of  January  21,  1903,  become  eligi- 
ble for  appointment  as  a  volunteer  officer  and  as  such  is  attending 
a  mihtary  school  of  the  United  States.  G.  I4I48-F,  Oct.  29,  1908. 
In  the  case  of  militia  officers  who  have  become  authorized  to  attend 
the  Army  Medical  School,  held,  that  they  are  not  entitled  to  draw 
stationery  or  forage  but  there  is  no  legal  objection  to  their  purchasing 
fuel  at  the  contract  rates  at  the  posts  where  such  schools  are  estab- 

1  See  36  E,  1070,  Mar.  3,  1911,  and  G.  O.  No.  70,  W.  D.,  1910. 

2  See  V  Comp.  Dec,  263  and  592;  VI  id.,  170;  III  id.,  170. 


MILITIA  VI   A   2   a.  Vll 

lished  as  they  are  allowed  quarters.  C.  I4I48-A,  Oct.  19,  1904. 
Also,  held,  that  such  a  militia  ollicer  is  not  authorized  to  purchase 
clothing  from  the  Quartermasters  Department  as  the  appropriation 
under  which  clotliin^  is  furnished  is  intended  to  clothe  the  Army  and 
not  to  furnish  clothmg  at  cost  price  to  persons  not  connected  there- 
with. C.  14148-E,  Jan.  22,  1908.  Held,  that  a  mihtia  ollicer  so 
attending  a  military  school  of  the  United  States  is  not  entitled  to 
any  allowances  wliile  absent  from  the  school  or  on  ordinary  leave  or 
sick  leave.^  C.  I4148-F,  Feb.  4,  1909.  Held,  that  a  commanding 
oihcer  of  a  post  at  wliicli  militia  officers  are  attending  a  garrison 
school  should  recognize  the  obligation  of  those  officers  to  the  Organ- 
ized Militia  of  their  States,  by  authorizing  their  absence  during  the 
period  of  their  performance  of  the  duty  of  participating  in  an  ap- 

Eroaching  inaugural  ceremony,  to  which  duty  their  organizations  had 
een  detailed.  ^  0.  I4I48-F,  Feb.  5,  1909. 

VI A  2  a.  The  reimbursement  of  officers  for  expenses  incurred  in  travel 
is  now  substantially  ret^ulated  by  the  act  of  June  12, 1906  (34  Stat.  246) , 
which  is  supplementecl,  where  the  travel  is  accomplished  in  the  execu- 
tion of  militia  inspection  in  the  operation  of  section  14  of  the  act  of 
January  21,  1903,  by  the  act  of  Jime  22,  1906  (34  Stat.  449),  which 
provides  that  traveling  expenses  incurred  in  excess  of  the  regular 
mileage  allowance  shall  constitute  a  charge  against  the  allotment  of 
the  State  in  whose  behalf  the  journeys  are  undertaken.  Held,  that 
in  a  case  where  a  Regular  officer  was  assigned  to  temporary  duty 
at  Seagirt,  N.  J.,  with  the  National  Guard  of  that  State  and  his 
order  carried  no  allowances  except  those  authorized  by  the  mileage 
law,  there  is  no  relief  for  any  excess  of  expenditure  that  he  may 
have  been  subjected  to  in  the  execution  of  his  duty,  and  Congress 
must  be  looked  to  for  the  application  of  a  remedy.  G.  20369,  Dec, 
1906.  Held,  that  as  the  act  of  June  22,  1906,  is  restricted  in  its  oper- 
ation to  the  reimbursement  of  inspecting  officers  '^for  the  actual 
excess  of  expenses  of  travel,"  a  Regular  officer  who  was  required,  in 
the  execution  of  his  duty  of  inspecting  the  Organized  Militia  of  a 
State,  to  use  a  telephone,  may  not  be  reimbursed  under  the  above 
act  but  from  appropriation  for  the  support  of  the  Quartermaster's 
Department.  0.  I4I48-E,  July  11, 1908.  Held,  that  as  the  expense 
incurred  by  a  Regular  officer  in  having  the  report  of  his  inspection 
of  the  Organized  Militia  of  a  State  typewritten  was  not  one  properly 
chargeable  to  any  of  the  other  appropriations  for  the  support  of  the 
military  establishment,  it  should  be  paid  out  of  the  appropriation 
for  contingencies  of  the  Army.     C.  18112,  Sept.,  1905. 

VI  A  2  b.  Retired  officers  of  the  Regular  Army  are  assigned  to 
duty  with  the  mihtia  under  authority  of  the  act  of  March  2,  1903 
(32  Stat.  932),  and  not  under  authority  of  section  20  of  the  act  of 
January  21,  1903  (32  Stat.  779).     C.  I4I48,  Nov.  23,  1903. 

The  act  of  March  2,  1903,  also  establishes  the  pay  of  such  officers. 
Held,  that  an  officer  so  detailed  is  entitled  to  the  increased  pay  and 
to  the  allowances  ^  thus  authorized  from  the  moment  when  he  reports 
to  the  governor  of  the  State.^     C.  15849,  Feb.  4,  1904.     Held,  that 

1  See  XIV  Comp.  Dec,  638. 

2  A  retired  officer  of  the  Regular  Army  below  the  grade  of  major  on  duty  with  the 
militia  is  not  entitled  to  reimbursement  for  the  hire  of  horse  which  he  used  in  a  parade. 
XV  Comp.  Dec,  311. 

3  See  XIV  Comp.  Dec,  628,  for  pay  of  such  officer.  See  XII  Comp.  Dec,  95. 
Such  an  officer  not  entitled  to  mileage. 


71^  MILITIA  VI   A  2  b. 

duty  with  the  mihtia  is  not  per  se  mounted  duty.     C.  1414^-H, 
Aug.  25,  1911. 

The  act  of  April  23,  1904  (33  Stat.  264),  authorized  the  Secretary 
of  War  to  assign  retired  officers  of  the  Army,  with  their  consent,  to 
active  duty  with  the  Organized  Mihtia.  C.  18413,  Aug.,  1905.  That 
act,  which  authorized  full  pay  for  officers  so  serving,  was  modified  by 
the  act  of  June  12,  1906  (34  Stat.  245),  which  provided  the  pay  and 
allowances  of  a  major  as  the  maximum  pay- which  a  retired  officer 
upon  such  duty  should  receive.  Held,  that  a  lieutenant  colonel,  on 
duty  with  the  National  Guard  of  a  State,  is  entitled  under  his  detail 
to  the  pay  and  allowances  which  a  retired  major  would  receive  under 
a  like  assignment,  namely,  full  pay  and  allowances  of  a  major.  C. 
23957,  Feb.  5,  1909.  Held,  that  a  retired  officer  of  the  Regular  Armv 
may  hold  any  State,  county,  or  municipal  office  and  receive  the  emol- 
uments of  the  same  without  affecting  his  mihtary  office  or  pay  in 
any  way.  C.  14063,  Jan.  27,  1903,  and  Dec.  4,  1909.  Held,  that  a 
retired  officer  may  hold  any  office  in  the  government  of  the  State 
unless  he  is  prevented  from  so  doing  by  a  law  of  the  State.  C.  17764, 
Mar.  24,  1905.  Held,  that  there  is  no  statute  of  the  United  States, 
or  existing  regulation  of  the  War  Department,  which  prohibits  a 
retired  officer,  who  is  detailed  for  duty  with  the  National  Guard  of  a 
State,  from  accepting  from  the  State  additional  compensation  as  pay 
or  expenses,  and  that  if  such  officer  holds  a  commission  in  the  Organ- 
ized Militia  of  the  State  to  which  he  is  detailed  he  can  legally  accept 
from  such  State  the  pay  and  allowances  authorized  by  the  law  of  the 
State.  C.  18 41 3,  Aug.,  1905.  Held,  that  there  is  no  law  of  the 
United  States  which  prevents  a  retired  officer  so  detailed  from  hold- 
ing the  ofiice  and  drawing  the  pay  of  adjutant  general  of  a  State. 
C.  17631,  Mar.,  1905.  Held,  that  a  retired  officer  of  the  Regular 
Army  who  is  on  dutj  with  the  National  Guard  of  a  State  has  no 
right  to  demand  additional  pay  from  the  State  except  for  expenses. 
C.  I4O63,  Feb.  2,  1910.  Held,  that  the  assignment  of  a  retired  officer 
to  active  duty  with  the  National  Guard  of  a  State  does  not  place  the 
officer  on  the  active  list  of  the  Regular  Army  in  the  sense  m  which 
that  term  is  used  in  section  1222,  R.  S.  Held,  in  a  case  which 
arose  in  a  State,  where  the  State  law  of  February  26,  1908,  pro- 
vided that  'Hhe  United  States  officer  detailed  for  duty  ^with  that 
State '  shall  have  the  title  of  military  secretary  to  the  governor  with 
the  rank  of  'colonel,'"  that  such  State  legislation  did  not  create  an 
office  in  the  sense  in  which  that  term  is  used  in  section  1222,  R.  S., 
which  prohibits  an  officer  of  the  Regular  Army  on  the  active  list 
from  holding  any  civil  office.  C.  18413,  June,  1908.  Also  held,  that 
while  on  duty  with  the  National  Guard  of  a  State  a  retired  officer 
would  not  vacate  his  position  as  an  officer  on  the  retired  list  of  the 
Regular  Army.  C.  14063,  Dec.  4,  1909.  Held,  that  there  is  no 
Federal  statute  or  regulation  which  would  forbid  a  retired  officer  of 
the  Regular  Army  on  college  duty  from  accepting  a  commission  in 
the  National  Guard  of  a  State.  C.  22170,  Oct.  5,  1907.  Held,  that  a 
retired  officer  who  had  been  commissioned  in  the  National  Guard 
would,  if  the  National  Guard  were  called  into  the  service  of  the 
United  States,  be  entitled  to  the  pay  of  his  militia  office  during  the 
period  of  such  service,  but  not  to  the  pay  pertaining  to  his  office  on 
the  retired  list.  C.  14063,  Dec.  3,  1909.  Held,  that  the  same  rule 
would  apply  during  joint  maneuvers.     C.  1414^-H,  Feb.  4,  1911. 


MILITIA  VI   A  2  e.  713 

The  act  of  April  23,  1904  (33  Stat.  264),  provides  that  the  Secretary 
of  War  may  assign  retired  officers  to  ''staff  duties  not  involving  serv- 
ice wath  troops."  Held,  that  he  may  assign  a  retired  officer  of  the 
Regular  Army  to  the  duty  of  inspecting  the  Organized  MiUtia.  G. 
14148-E,  Mar.  11,  1908.  Held,  that  a  retired  officer  above  the  grade 
of  major,  who  was  on  duty  inspecting  the  mihtia,  was  not  entitled  to 
mileage  under  the  act  of  March  2,  1905  (33  Stat.  831).i  C.  18112, 
Sept.  8,  1905. 

The  status  of  duty  wliich  attaches  to  a  retired  officer  who  is 
assigned  to  duty  with  the  Organized  Militia  of  a  State,  though 
indefinite  in  some  of  its  incidents,  should  be  held  to  apply,  in  the 
absence  of  highly  exceptional  circumstances,  to  the  entire  period  of 
time  intervening  between  his  reporting  for  duty  and  his  relief  there- 
from. Held,  that  a  governor  of  a  State  or  Territory  is  without  author- 
ity to  grant  a  leave  of  absence  to  a  Regular  officer  who  has  been  so 
pfaced  on  duty  with  the  militia  of  a  State,  which  can  be  done  by  the 
War  Department  only.     C.  22330,  Nov.,  1907. 

VI A  2  c.  Section  20  of  the  act  of  January  21,  1903  (32  Stat.  779), 
as  amended  by  the  act  of  May  27,  1908  (35  Stat.  403),  provides  that 
enlisted  men  of  the  Regular  Army  may,  upon  the  application  of  the 
governor  of  a  State  or  Territoiy,  be  detailed  for  duty  in  connection 
with  the  Organized  Militia.  Held,  that  an  enlisted  man  so  detailed  is 
entitled  to  pay  and  commutation  of  rations,  and  to  quarters,  the 
number  of  rooms  being  fixed  in  the  Army  Regulations.  Also  held, 
that  under  the  act  of  March  2,  1907  (34  Stat.  1167),  he  is  entitled  to 
a  sufficient  allowance  of  heat  and  light.^  Held,  further,  that  the  cost 
of  maintenance  of  an  enlisted  man  so  detailed  constitutes  a  charge 
against  the  appropriations  for  the  support  of  the  Army  and  can  not  be 
paid  out  of  funds  accruing  to  the  several  States  in  the  operation  of 
section  1661,  R.  S.,  and  the  act  of  January  21,  1903,  both  as  amended. 
0.  14148-F,  Feb.  5,  1909.  Held,  further  that  commutation  of 
rations  ^  may  lawfully  be  paid  in  advance  to  an  enlisted  man  of  the 
Regular  Army,  who  has  been  placed  on  detached  service  with  the 
Organized  Militia  of  the  State  of  Pennsylvania.  G.  14^48-0,  Nov.  9, 
1909. 

VI A  2  d.  The  law  authorizing  the  establishment  of  a  force  of 
Philippine  Scouts  vests  authority  in  the  President  to  appoint  such 
officers  as  ''he  shall  deem  necessary  for  the  proper  control.''  Held, 
that  in  view  of  the  restriction  in  the  above  language,  the  assignment 
of  an  officer  of  Philippine  Scouts  to  duty  with  the  mflitia  of  a  Territory, 
would  be  unlawful.     G.  22742,  Feb.  11, 1908. 

VI  B  1  a.  Section  14  of  the  act  of  January  21,  1903  (32  Stat.  777), 
in  describing  what  part  of  the  National  Guard  of  a  State  shall  par- 
ticipate in  a  State  camp  of  instruction,  uses  the  words  "such  portion." 
Held,  that  it  is  within  the  discretion  of  the  governor  of  a  State  or  Terri- 
tory to  determine  what  portion  of  its  Organized  Militia  ' '  shaU  engage 
in  actual  field  or  camp  service  for  instruction."  G.  1414^-^j  ^^V  ^y 
1905.     Held,  that  the  officers  of  Coast  Artillery  Reserve  organizations 

1  XII  Comp.  Dec,  95. 

2  See  XVI  Comp.  Dec,  287.  There  is  no  authority  of  law  for  the  payment  of  com- 
mutation of  quarters,  heat,  and  light  to  enlisted  men  of  the  Army  when  detailed  for 
service  with  the  militia  under  the  act  of  May  27,  1908. 

3  For  rate  see  G.  0. 116,  par.  Ill,  W.  D.,  Aug.  29, 1911. 


714  MILITIA  VI   B   1   b. 

may  be  ordered  to  engage  in  preliminary  field  or  camp  service  for 
instruction.     G.  I4I48-H,  Jan.  4,  1911. 

VI  B  1  b.-  Section  14  of  the  act  of  January  21,  1903  (32  Stat.  777), 
contains  no  restriction  as  to  the  place  where  the  '^  actual  field  or  camp 
service  for  instruction"  shall  take  place.  Held,  that  that  is  controlled 
by  the  governor's  discretion  subject  to  the  condition  that  the  militia 
of  one  State  can  on  the  initiative  of  that  State  pass  through  another 
State  only  with  the  latter's  consent.     G.  I4I48,  Dec.  22,  1903. 

VI  B  1  c.  The  governor  of  a  State  asked  permission  for  the  First 
Battalion  of  Artillery  (Coast)  to  camp  for  three  days  at  the  guns  at  an 
Army  post.  Held,  that  the  mere  location  of  this  National  Guard 
organization  in  camp  on  the  reservation  for  purposes  of  instruction 
does  not  classify  the  camp  as  a  participation  in  the  encampments, 
maneuvers,  or  field  instruction  of  any  part  of  the  Regular  Army,  even 
though  Regular  officers  acted  as  instructors.  The  instruction  should 
properly  be  classified  as  that  contemplated  in  section  14  of  the  act  of 
January  21,  1903.     G.  I4I48-A,  Apr.  30,  1904. 

VI  B  1  d.  At  a  State  encampment  held  under  section  14  of  the  act 
of  January  21,  1903  (32  St^t.  777),  subsistence  stores  may  be  sold  to 
officers  and  the  sale  will  be  regarded  as  a  sale  to  the  State  under 
section  17  of  the  act  of  January  21,  1903,  and  the  selling  price  should 
be  the  cost  to  the  United  States  plus  10  per  cent  for  transportation. 
G.  14148,  Aug.  5,  1904. 

VI  B  1  e  (1).  As  the  service  of  the  disbursing  officer  under  section 
14,  act  of  January  21,  1903  (32  Stat.  777),  is  limited  to  field  or  camp 
service,  and  as  quarters  are  not  furnished  to  officers  for  this  kind  of 
service,  lield,  that  commutation  of  quarters  can  not  be  paid  to  such  a 
disbursing  officer  for  the  time  so  spent  by  him  in  camp.  G.  1414^~^, 
Sept.,  1904. 

VIB  1  e(2).  A  disbursing  officer  purchased  rations  under  section 
14  of  the  act  of  January  21,  1903  (32  Stat.  777).  Held,  that  he  can 
take  credit  for  the  amount  actually  spent  if  the  average  does  not 
exceed  the  value  of  the  Regular  Army  ration,  but  if  the  average  does 
exceed  the  value  of  the  ration  he  can  take  credit  to  the  amount  of  the 
value  of  the  Regular  Army  ration  only.^     G.  I4148-B,  Aug.  11,  1906. 

VI  B  1  e  (3).  Wagons  were  hired  by  Cavalry  troops  of  a  State 
while  on  a  practice  march  on  which  they  engaged,  in  actual  field  serv- 
ice for  instruction.  Held,  that  under  section  14  of  the  act  of  January 
21,  1903  (32  Stat.  777),  the  cost  of  hiring  such  transportation  is  a 
proper  charge  against  the  State's  allotment  of  funds  under  section 
1661,  R.  S.     G.  14148-A,  Oct.  16,  1905. 

VIB  1  e(4).  Two  enlisted  men  of  the  National  Guard,  while  on 
their  way  to  a  State  camp  of  instruction,  were  taken  sick,  necessitat- 
ing medical  attendance.  No  medical  officer  accompanied  the  troops. 
The  troop  commander  employed  medical  attendance  and  now  asks 
to  be  reimbursed  for  the  sum  paid.  Held,  that  there  is  no  authority 
in  section  14  of  the  act  of  January  21,  1903,  for  the  payment  of 
medical  expenses  of  sick  militiamen  who  were  taken  sick  while  on 
their  way  to  a  State  camp.     G.  16925,  Aug.  10,  1909. 

VI  B  1  e  (5).  A  member  of  the  organized  militia  of  a  State 
became  sick  with  epileptic  fits  during  a  State  encampment,  and  was 
so  violent  that  it  was  necessary  to  send  him  under  two  attendants  to  his 

1  X  Comp.  Dec,  400;  id.,  700. 


MILITIA  VI  1  e  (g).  715 

home.  Held  J  that  as  the  expenses  incurred  in  the  transportation  of 
this  sick  man  were  necessary  and  reasonable,  they  are  properly  pay- 
able out  of  the  State  allotment  under  section  1661,  R.  S.,  as  amended, 
and  section  14  of  the  act  of  January  21,  1903.  C.  I4148-E,  Feb.  19, 
1908. 

VI  B  1  e  (6).  Certain  farmers  of  a  State  claimed  remuneration 
for  damage  done  to  crops  by  troops  of  the  National  Guard  during 
maneuvers  held  in  connection  with  a  State  encampment.  Held,  pay- 
ment of  such  a  claim  would  not  constitute  a  lawful  charge  against  the 
allotment  of  the  State  in  the  operation  of  section  1661,  R.  S.,  as 
amended,  and  could  be  made  only  as  incidental  expenses,  but  only 
when  authorized  by  the  Secretary  of  War ;  and  where  before  the  encamp- 
ment^ a  lease  had  been  executed  providing  for  placing  the  leased 
premises  in  the  same  condition  in  which  they  were  at  the  beginning 
of  the  encampment.     C.  I4148-G,  Oct.  1,  1909. 

VI  B  1  e  ( 7) .  Certain  officers  purchased  transportation  to  a  State 
encampment,  as  prior  to  the  necessities  of  each  case  it  was  not  possi- 
ble for  the  disbursing  officer  to  secure  the  transportation  or  make 
arrangements  for  it.  Held,  that  the  State  disbursing  officer  may 
reimburse  these  officers  for  the  expenses  of  such  travel  in  those  cases 
where  the  travel  was  properly  ordered  and  the  expenditures  were 
actually  made.     C.  I4148-D,  Oct.  31,  1907. 

VI  B  1  e  (8).  The  horse  of  a  staff  officer  had  been  foundered  in  the 
service  while  the  officer  was  in  camp  and  the  horse  was  left  behind 
until  it  should  be  in  fit  condition  to  be  shipped.  Held,  that  the  State 
disbursing  officer  may  lawfully  reimburse  the  owner,  a  mounted 
officer,  for  the  amount  expended  by  him  in  the  transportation  of  the 
horse,  which  had  been  used  by  a  member  of  his  staff,  from  the  place 
of  encampment  back  to  his  home.     C.  I4148-D,  Oct.  12,  1907. 

VI  B  1  e(9).  During  maneuvers  in  a  State  $98.65  was  expended 
from  the  appropriation  for  "Encampment  and  maneuvers.  Organized 
Militia,"  in  entertaining  the  visiting  foreign  military  attaches.  Held, 
that  the  funds  accruing  to  the  State  under  that  appropriation  are 
subject  to  the  restrictions  in  sections  15  and  21  of  the  act  of  January 
21,  1903  (32  Stat.  778),  as  amended,  and  are  not  available  for  paying 
the  cost  of  entertaining  foreign  mifitary  attaches,  who  may  be  present 
at  a  State  encampment.  ^  C.  I4148-G,  Dec.  23,  1909. 

VI  B  2  a.  Preceding  joint  maneuvers  with  the  Reguler  Army, 
lands  were  leased  for  maneuvering  purposes.  Held,  that  these 
leases  of  lands  to  the  United  States  operated  to  deprive  the  lessors 
of  the  use  and  possession  of  such  land  during  the  period  of  the 
maneuvers  and  to  that  extent  prevented  their  use  by  the  lessors 
for  grazing  purposes.^  C.  16525,  Sept.  26,  1904.  Before  the  begin- 
ning of  the  lease  certain  of  the  lands  were  used  for  quartermaster 
and  commissary  depots  under  conditions  which  indicated  an  imder- 
standing  between  the  proprietor  and  the  quartermaster  that  the 
lands  were  to  be  so  used  for  a  reasonable  compensation.^  Held, 
that  there  was  an  imphed  contract  for  a  reasonable  compensation 

^  XI  Comp.  Dec,  293,  in  which  it  is  held  that  the  United  States  is  not  liable  for 
damage  by  fire  to  lands  leased  as  a  military  maneuver  camp. 

2  Payment  in  advance  by  month,  quarter,  or  year,  for  leased  lands  of  which  the 
lessee  has  been  placed  in  possession  by  the  lessor  is  not  in  violation  of  sec,  3648  R.  S, 
(XII  Comp.  Dec,  782.) 


716  MILITIA  VI   B   2  b. 

for  the  use  and  occupancy  of  the  premises  from  August  1,  1904,  to 
August  25,  1904,  and  although  leases  for  that  period  which  were 
made  out  after  August  25,  1904,  are  ineffectual  to  create  an  actual 
term,  they  may  be  treated  as  a  liquidation  of  the  claim  for  use  and 
compensation.     C.  16525,  Nov.  16,  1904. 

VI  B  2  b.  When  the  Organized  Militia  and  the  Regular  Army 
serve  together  as  contemplated  in  section  9  of  the  act  of  May  27, 
1908  (35  Stat.  402),  which  amends  section  15  of  the  act  of  January 
21,  1903,  held^  that  the  one  hundred  and  twenty-fourth  article  of  war 
requires  that  no  officer  of  the  militia  of  a  particular  grade  can  rank 
anv  Regular  officer  of  that  grade.     C.  I4148-F,  Sept.  12,  1908. 

VI  B  2  c.  Section  15  of  the  act  of  January  21,  1903  (32  Stat.  777), 
provides  for  "participation"  of  the  mihtia  in  ''encampment,  maneu- 
vers and  field  mstruction"  of  any  part  of  the  Regular  Army.  Held, 
that  "participation"  begins  when  the  movement  from  the  several 
rendezvous  begins  and  ends  when  the  troops  reach  the  place  of  their 
respective  rendezvous  on  their  return.  During  this  period  of  time 
they  are  entitled  to  the  same  pay,  subsistence,  and  transportation  as 
troops  of  the  Regular  Army.     C.  I4148,  Aug.  j,  1903. 

VI  B  2  d.  In  the  annual  acts  of  appropriation  for  support  of  the 
Army,  certain  sums  are  provided  for  the  expenses  of  jomt  encamp- 
ments of  the  Regular  Army  and  Organized  Militia.  Held,  that  none 
of  these  funds  can  lawfully  be  transferred  to  a  disbursing  officer  of 
a  State,  but  they  must  be  disbursed  by  the  regularly  appointed 
officers  of  the  several  staff  departments  of  the  Regular  Army.  O. 
14148-F,  July  1,  1908,  and  Dec.  13,  1910. 

VI  B  2  e.  Upon  a  request  for  information  as  to  the  proper  manner 
of  securing  transportation  for  the  Organized  Militia  of  a  State  to 
and  from  the  maneuvers  on  a  military  reservation,  it  was  Jield,  that 
under  section  15  of  the  act  of  January  21,  1903  (32  Stat.  777), 
transportation  of  the  mihtia  forces  must  be  obtained  in  the  same 
way  and  in  pursuance  of  the  same  statutes  and  regulations  that 
would  be  appHed  in  obtaining  transportation  for  corresponding 
detachments  of  the  Regular  Army.     0.  I4148,  Sept.  11,  1903. 

VI  B  2  f .  As  the  adjutant  general  and  certain  other  staff  ofl&cers 
of  the  Organized  Militia  of  a  State  were  not  designated  by  the  Secre- 
tary of  War  to  take  part  in  the  joint  encampment,  held,  that  the  hire 
of  an  automobile  for  their  transportation  from  the  State  capital  to 
the  place  of  the  joint  encampment  of  the  Regular  Army  and  the 
Organized  Militia  does  not  constitute  a  lawful  charge  against  the 
appropriation  for  the  joint  encampment  of  the  Regular  Army  and 
the  Organized  Militia.     C.  I4148-H,  Sept.  6,  1910. 

VI B  2  g.  At  a  joint  encampment  the  following  question  was  raised, 
viz.,  can  the  officers  and  enlisted  men  of  the  Organized  Militia  who 
participate  in  such  joint  encampment  be  permitted  to  purchase  sub- 
sistence stores  for  sale  to  officers  and  enlisted  men  of  the  Regular 
Armj^?  Held,  that  such  stores  should  be  sold  to  them  at  cost  prices, 
that  is,  at  the  same  prices  which  are  charged  to  officers  and  enlisted 
men  of  the  Army  under  the  same  circumstances.  C.  14^4^,  Aug.  5, 
1904. 

VI  B  2  h.  As  section  15  of  the  act  of  January  21,  1903  (32  Stat. 
777),  restricts  the  allowances  to  which  the  National  Guard  becomes 
entitled  when  they  participate  in  encampments  with  the  Regular 


MILITIA  VI   B  2  i.  717 

Army  to  ''pay,  subsistence,  and  transportation,"*  lield,  that  forage 
would  not  be  allowed.     G.  UHS,  July  13,  1903. 

VI  B  2  i.  Rations  are  furnished  to  the  National  Guard  when  it  par- 
ticipates in  encampment  with  the  Regular  Army  under  section  15  of 
the  act  of  January  21,  1903  (32  Stat.,  777).  Held,  that  fuel  for  cook- 
ing i)urposes,  unier  the  Army  Regulations,  may  be  issued,  as  it  is 
usetl  to  cook  the  ration,  and  hay  for  bedding  purposes  may  be  issued, 
as  it  is  a  minor  allowance  wliich  was  probably  included  in  the  sub- 
stantial allowances  mentioned.     C,  l^l^S,  Sept.  12,  1903. 

VI  B  2  j.  The  appropriation  act  for  the  Army  of  April  23,  1904 
(33  Stat.,  265),  contained  a  clause,  i.  e.,  ''For  purchase  of  subsistence 
and  supplies,  one  hundred  thousand  dollars"  in  connection  with  joint 
encampments  of  the  militia  with  the  Regular  Army.  Held,  that  the 
language  is  broad  enough  to  authorize  the  emj^loyment  of  civilians  to 
bake  bread  under  the  same  circumstances  which  would  justify  their 
employment  for  the  same  purpose  in  connection  with  troops  of  the 
Regular  Army.  C.  16524,  July  27  and  Aug.  3,  1904.  .The  same 
clause  of  that  appropriation  can  be  used  to  pay  for  the  ordinary  labor 
necessary  for  the  nandling  of  subsistence  stores  in  the  maneuver  camp 
composed  of  both  Regulars  and  Volunteers,  but  held,  that  the  pay  for 
the  labor  required  should  be  made  from  the  appropriation  for  the 
subsistence  of  the  Army  and  the  subsistence  of  tlie  militia  in  propor- 
tion to  the  strength  of  the  Regular  and  militia  forces  composing  the 
camp.     C.  16524,  July  27,  Aug.  3  and  8,  1904. 

VI B  2  k.  Bakery  profits  are  neither  pay  nor  allowances.  Held,  that 
a  militia  organization  which,  under  section  15  of  the  act  of  January  21, 
1903  (32  Stat.,  777),  participates  in  an  encampment  at  an  Army  post 
for  less  than  10  days  is  not  entitled  to  share  in  the  bakery  savings  of 
the  post.     C.  14148-E,  May  21  and  June  10,  1908. 

VI  B  2  1.  A  Regiment  of  Heavy  Artillery,  of  the  National  Guard, 
which  was  participating  in  a  joint  Army  and  Navy  maneuver,  con- 
tracted various  bills  for  transportation,  labor,  and  material,  and  the  bill 
of  the  superintendent  of  State  arsenal  for  board,  lodging,  and  trans- 
fers while  on  State  duty  attending  to  business  at  the  camp  of  the 
guard.  Held,  that  officers  of  a  State  National  Guard  can  not  con- 
tract such  bills  as  they  deem  desirable  at  their  discretion  without 
reference  to  or  authority  of  the  proper  bureau  of  the  War  Department, 
for  pavement  under  section  15  of  the  act  of  January  21 ,  1903.  C.  1414^, 
Oct.  28  and  Dec.  18,  1903,  and  Jan.  28,  1904. 

A  private  of  the  National  Guard,  who  had  been  on  duty  at  Camp 
Capt.  John  Smith,  Jamestown  Exposition,  was  not  able,  because  of 
sickness,  to  accompany  hi.s  regiment  home  and  was  placed  in  a  civil 
hospital.  Held,  that  the  bill  for  his  hospital  expenses,  which  was 
incurred  after  the  breaking  of  camp,  can  not  be  paid  from  funds  of 
the  United  States  in  the  hands  of  the  disbursing  officer.  C.  1414^~^j 
Oct.  3  and  I4,  1907. 

VI  B  2  m.  The  act  of  appropriation  for  the  support  of  the  Army,  of 
April  23, 1904  (33  Stat.,  265),  appropriated  money  for  the  militia  par- 
ticipating in  joint  encampment  with  the  Regular"  Army,  inter  alia,  for 
"  transportation  of  the  mihtia  and  its  supplies,  clothing,  and  equipage, 
lease  of  land,  and  damage  to  property. "     Held,  that  the  above  clause 

^  An  officer's  travel  allowance  is  limited  to  actual  transportation  (XI  Comp.  Dec, 


718  MILITIA  VI  2  m. 

must  provide  for  the  payment  of  damages  naturally  and  necessarily 
arising  out  of  the  use  of  the  lands  leased  for  the  purpose  of  miLtary 
maneuvers,  as,  for  instance,  if  considerable  bodies  of  troops  march 
through  and  over  the  fields  in  the  execution  of  tactical  problems,  a 
certain  amount  of  damage  to  growing  or  standing  crops  will  inevitably 
ensue;  fences,  detached  buildings,  and  inclosures  will  also  be  so  used  as 
to  make  repairs  necessary,  but  the  theft  of  fowls  and  animals,  the 
larceny  or  felonious  taking  or  carrying  away  of  articles  of  personal 
property,  or  the  wanton  destruction  of  such  property,  or  injuries  which 
are  not  susceptible  of  compensation  in  the  manner  herembefore  de- 
scribed, are  damages  which  are  not  payable  out  of  the  above  appro- 
priation, nor  are  they  susceptible  of  liquidation  by  a  resort  to  the 
method  provided  in  the  leases.  Recommended,  that  the  several 
governors  interested  in  the  maneuvers  be  advised  that  claims  for 
damages  due  to  tortious  acts  of  individuals  can  not  be  paid  out  of  any 
appropriations  of  Congress  and  that  for  that  reason  the  States  to 
which  the  militia  forces  belong  will  be  expected  to  provide  for  their 
adjustment.  C.  16525,  May  19,  190^.  Held,  that  damages  to  prop- 
erty used  during  maneuvers  can  only  be  paid  if  there  is  a  contract, 
express  or  implied,^  providing  therefor;  that  is,  they  would  then  be 
included  as  a  part  of  the  compensation  for  the  use  of  the  land.  C 
14971,  Aug.  28,  1903.  Held,  that  the  executive  departments  can 
neither  entertain  nor  adjudicate  claims  for  unliquidated  damages  to 
buildings,  crops,  fences,  or  land,  by  troops  during  maneuvers.  C. 
14971,  July  23,  1903.  Held,  that  such  claimants  must  have  recourse 
to  Congress  or,  in  a  limited  class  of  cases,  to  the  Court  of  Claims. 
C.  16525,  May  19,  1904. 

During  the  progress  of  joint  maneuvers  with  the  Kegular  Army,  the 
troops  entered  upon  certain  parcels  of  land  which  had  not  been  made 
the  subject  of  leases.  Claims  were  made  for  rent,  and  for  injury  to 
crops,  fences,  etc.  Held,  that  the  claim  for  rent  should  be  rejected, 
but  that  the  claim  for  injury  to  crops  and  fences  after  adjustment 
should  be  paid.     C.  16525,  Nov.  3,  1904. 

A  railroad  company  that  carried  National  Guard  troops  to  a  joint 
encampment  submitted  a  claim  for  $8.30  for  loss  of  equipment  on 
baggage  car  which  was  so  used.  Held,  that  the  War  Department  can 
not  pay  this  claim  for  the  reason  that  none  of  the  appropriations  at 
the  service  of  the  War  Department  can  be  used  for  the  adjustment 
of  unliquidated  damages  unless  express  provision  has  been  made  by 
contract  to  cover  such  adjustment.  Also,  held,  that  the  equipment 
lost  was  not  a  legitimate  part  of  the  cost  of  transportation.  C.  14971 , 
July  29,  1904;  20402,  Sept.  26,  1906. 

^  Sec.  XVI  Comp,  Dec,  589,  for  questions  arising  when  premises  are  occupied  without 
leases.  Dennis  v.  U.  S.,  20  Ct.  Cls.,  119;  Brannen  v.  U.  S.,  id.,  219;  Pitman  v.  U.  S., 
id.,  253;  I  Comp.  Dec,  261,  283;  II  id.,  174,  488;  IV  id.,  446;  V  id.,  693,  770;  VI  id.,  707. 
But  payment  may  be  made  for  work  or  materials  furnished  and  received  under  a 
contract,  express  or  implied,  though  the  price  is  not  fixed  by  such  contract.  McClure 
V.  U.  S.,  19  Ct.  Cls.,  179;  Dennis  v.  U.  S.,  20  id.,  119;  Pitman  v.  U.  S.,  id.,  253;  I 
Comp.  Dec,  283;  II  id.,  365;  III  id.,  365,  565;  VI  id.,  648,  953;  VII  id.  (dated  Mar. 
12,  1901).  And  where  it  is  to  the  interest  of  the  United  States  the_  Secretary  of  War 
may  enter  into  a  supplemental  contract  with  a  contractor,  discontinuing  an  existing 
contract  on  payment  to  the  contractor  of  a  stipulated  sum.  U.  S.  v.  Corliss  Steam 
Engine  Co.,  91  U.  S.,  321;  Satterlee  v.  U.  S.,  30  Ct.  Cls.,  31;  III  Comp.  Dec,  54; 
VI  id.,  953.  See  4  Op.  Atty.  Gen.,  327;  6  id.,  499,  516;  9  id.,  81;  14  id.,  24, 183.  The 
act  of  Mar.  3,  1909  (35  Stat.,  740),  is  available  as  an  appropriation  act  for  the  pay- 
ment of  damages  to  property. 


MILITIA  VI   B   2  n.  719 

VI  B  2  n.  The  United  States  is  not  responsible  for  the  unlawful  acts 
of  its  soldiers  or  employees.  The  remedy  in  such  a  case  is  a  suit 
against  the  individuals  who  commit  the  trespass  or  an  application 
for  reUef  to  Congress.  C.  16525,  May  19,  1904.  Held,  that  the 
United  States  is  not  legally  responsible  for  torts  of  its  officers  or 
agents,  whether  of  commission  or  omission.  C.  16525,  May  19, 
1904-^  Held,  that  it  is  not  within  the  power  of  any  of  the  executive 
departments  to  compensate  an  individual  for  damages  due  to  tortious 
acts  committed  by  the  Organized  Militia  of  the  States.  If  there  be 
any  remedy  for  such  injuries,  it  must  consist  in  an  application  to 
the  State  or  States  by  whose  troops  the  acts  were  committed.  More- 
over, it  is  beyond  the  power  of  an  officer  of  the  War  Department  to 
commit  the  United  States  to  the  payment  of  tortious  damages; 
and  a  contract  purporting  to  do  so  would  be  without  operative  force. 
C.  17585,  Feb.  27, 1905.  A  private  horse  that  had  been  used  in  joint 
maneuvers  was  shot  by  a  militiaman  after  the  encampment  while  the 
man  and  his  organization  were  on  the  cars  en  route  home,  about 
nine  hours'  journey  from  the  encampment  grounds.  Held,  that  the 
injury  done  was  not  due  to  the  act  or  order  of  any  person  in  the 
military  establishment,  and  that  reimbursement  can  not  lawfully  be 
made  by  the  United  States,  and  the  injured  party  should  look  to  his 
State  or  to  the  individual  by  whom  the  animal  was  shot  for  compen- 
sation for  the  loss  he  has  sustained.^     C.  16961,  Oct.  1,  1904. 

VI  C  1  a.  If  a  quarter  section  of  the  public  domain  has  been  with- 
drawn from  entry  and  set  apart  for  use  as  a  rifle  range,  held,  that  no 
further  action  would  be  necessary  as  a  condition  to  the  expenditure 
of  money  in  the  improvement  of  the  range.     0.  19798,  Aug.,^  1909. 

VI  C  1  b.  The  title  to  the  lands  purchased  under  the  provisions  of 
section  1661,  R.  S.,  as  amended,  for  use  as  State  target  ranges  wiU 
vest  in  the  United  States.  Held,  that  the  relation  of  the  State  or 
Territory  or  district  to  such  lands  is  that  of  a  trustee  vested  with  the 
charge  and  charged  with  the  administration  of  such  properties  for 
the  purpose  for  which  they  were  acquired.  C.  19798,  May  29, 
1906.  Held,  that  it  is  not  legal  to  enter  into  a  contract  binding  the 
United  States  for  the  purchase  of  property  from  future  appropriations. 
C.  20989,  Mar.  15,  1909;  20864,  Feb.  6,  1909.^  Held,  that  after 
proper  notice  has  been  received  that  the  title  has  been  approved 
by  the  Attorney  General,  payment  may  be  made  for  the  land,  the 
deeds  recorded,  and  all  papers  forwarded  to  the  War  Department. 
C.  20864,  Apr.  3,  1907.  Held,  that  a  State  may  be  the  vendor  and 
pay  for  the  range  out  of  its  apportionment  under  section  1661,  R.  S., 
as  amended,   the  title  to  be  approved    by    the  Attorney  General 

1  Pitman  v.  U.  S.,  20  Ct.  Cls.,  255;  Gibbons  v.  U.  S.,  8  Wall.,  269;  id.,  7  Ct.  Cls., 
105;  Morgan  v.  U.  S.,  14  Wall.,  531. 

Judge  Story  in  his  work  on  agency,  sec.  319,  says:  '*It  is  plain  that  the  Government 
itself  is  not  responsible  for  the  misfeasances  or  wrongs  or  negligencies  or  omissions  of 
duty  of  the  subordinate  officers  or  agents  employed  m  the  public  service;  for  it  does 
not  undertake  to  guarantee  to  any  person  the  fidelity  of  any  of  the  officers  or  agents 
whom  it  employs,  since  that  would  involve  it,  in  all  its  operations,  in  endless  embarrass- 
ments and  difficulties  and  losses,  which  would  be  subversive  of  the  public  interests." 

2  While  the  Government  is  not  pecuniarily  responsible  for  torts  committed  by  officers 
and  enlisted  men,  the  latter  are  so  responsible,  and  aside  from  their  liability  to  civil 
suit  may  and  should  in  cases  covered  by  the  fifty-fourth  article  of  war  be  proceeded 
against  as  required  by  that  article. 

3  See  sec.  3736,  R.  S. 


720  MILITIA  VI   C   1   C(l). 

under  section  355,  R.  S.  C.  £0864,  Jcin.  7,  1909.  The  provisions 
of  section  355,  R.  S.,  have  been  construed  as  not  forbidding  the 
purchase  of  land  by  the  United  States  prior  to  the  consent  of  a  legis- 
lature being  obtained,  but  as  applying  to  the  expenditure  of  money 
upon  such  land  after  purchase.^  Held,  that  the  recording  of  the  deeds, 
etc.,  is  a  proper  charge  against  the  amount  allotted  to  the  State  for 
the  purchase  of  a  target  range.  C.  20864-,  Apr.  3,  1907.  Held, 
that  the  payment  from  a  State's  allotment  under  section  1661,  E.  S., 
as  amended,  of  the  following  expenses  connected  with  the  acquir- 
ing of  a  target  range  are  allowable  if  the  acquisition  of  the  range  is 
consummated:  (1)  Expense  of  travel  in  securing  an  option;  (2) 
expenses  involved  in  securing  the  consent  of  the  owners  to  sell;  (3) 
the  expense  of  preparation  of  the  title  for  submission  to  the  Attorney 
General;  (4)  the  expense  of  the  necessary  surveys;  (5)  the  expense 
of  the  purchase  of  the  land.  Held,  however,  that  the  surveying  of 
a  proposed  range  and  the  obtaining  of  options  to  lands  which  were 
not  later  required  can  not  properly  be  charged  to  the  allotment,  nor 
is  it  proper  to  pay  a  consideration  for  an  option.  0.  19798,  Dec. 
29,  1909? 

VI  C  1  c  (1).  The  renting  of  grounds  for  target  ranges,  or  of 
grounds  or  buildings  for  shooting  galleries,  together  with  the  expenses 
necessarily  attending  their  adaptation  for  use  in  the  instruction  of 
the  Organized  Militia  in  small-arms'  firing  are  proper  subjects  for  the 
expenditure  of  the  sums  accruing  to  the  State  m  the  operation  of 
section  1661,  R.  S.,  as  amended,  and  act  of  January  21,  1903  (32 
Stat.  775),  as  amended  by  act  of  June  22,  1906  ^  (34  Stat.  449).  G. 
1414^^1  &€.pt.,  1906.  Held,  that  the  approval  of  the  Secretary  of 
War  is  not  required  in  the  case  of  lands  leased  for  target-range  pur- 
poses under  the  act  of  June  22,  1906  (34  Stat.  449),  but  the  approval 
of  the  governor  of  the  State  is  required.  G.  20989,  Apr.,  1907. 
Held,  that  if  the  lease  contains  an  option  for  the  purchase  of  the 
property  the  exercise  of  the  option  would  require  the  approval  of 
the  Secretaiy  of  War.     G.  20989,  July  5,  1907. 

VIC  1  c  (2).  It  is  not  usual  to  require  an  abstract  of  title  to 
property  leased  by  the  Government,  where  the  lease  is  not  for  a  long 
term  of  years  and  does  not  call  for  payment  of  the  rental  for  the 
entire  period  in  advance.  If  the  lease  of  land  for  use  as  a  target 
range  is  for  a  long  term  of  years  and  the  rental  is  paid  in  advance, 
the  lease  should  be  properly  executed,  acknowledged,  and  recorded, 
and  evidence  should  be  furnished  of  the  title  of  the  lessor,  in  order 
that  the  Government  may  be  assured  of  the  occupancy  during  the 
term  for  which  the  rental  has  been  paid.  Where  the  lease  is  from 
year  to  year,  or  for  less  than  ^yq  years,  and  calls  for  the  rental  to 
be  paid  from  year  to  year  during  the  lease,  it  is  assumed  that  the 
party  in  possession  of  the  premises,  claiming  as  owner  and  executing 
the  lease  as  such,  is  entitled  to  execute  the  lease,  and  it  is  not  usual 
to  require  evidence  of  his  title.  The  description  of  the  property 
should  be  in  terms  sufficient  to  identify  it,  but  need  not  be  as  exact 
as  is  required  in  a  conveyance  of  property.  If  the  lease  is  for  a  short 
term,  it  is  not  necessary  that  the  signature  of  the  lessor  should  be 

1 15  Op.  Atty.  Gen.,  212. 

2  III  Comp.  Dec,  216;  VI  id.,  133. 

3  See  XIV  Comp.  Dec,  836. 


MILITIA  VI   C  1  C  (3).  721 

witnessed,  althoiio^h  it  would  be  preferable  to  do  so.  Unless  evidence 
as  to  title  is  furnished,  it  is  believed  that  the  lease  should  not  stipulate 
for  the  rental  to  be  paid  in  advance.  O.  20989,  June,  1909,  Apr. 
and  May,  1910.  Held,  that  the  lease  of  land  for  use  as  a  target 
range  should  show  the  purpose  for  which  the  premises  are  leased. 
G.  20989,  Jan.,  1907. 

VI C  1  c  (3).  After  the  allotment  of  funds  apportioned  Under 
section  1661,  R.  S.,  for  the  puipose  of  leasing  land  for  use  as  a  target 
range,  the  details  of  the  lease  devolve  upon  the  State  authorities, 
and  there  is  no  objection  to  the  payment  of  the  sum  due  on  its  lease 
in  advance.  Held,  that  such  a  lease  may  extend  over  several  years. 
G.  19798,  May,  and  June,  1907.  As  no  contract  can  be  made  that 
will  bind  future  appropriations  by  Congress,  held,  that  it  would 
not  be  proper  to  enter  into  an  obligation  to  lease  land  for  use 
as  a  target  ran^e,  to  be  satisfied  out  of  future  allotments  which 
may  not  materialize;  but  money  could  be  set  aside  from  allotments 
of  appropriations  already  made,  of  the  rental  for  the  entire  period 
of  the  lease,  as  the  provisions  of  section  3690,  R.  S.,  relating  to  expen- 
ditures of  annual  appropriations  for  the  services  of  the  fiscal  year 
only  has  been  held  not  to  apply  in  the  accounting  of  funds  issued  to 
the  militia  under  section  1661,  R.  S.,  and  section  14  of  the  act  of 
Januaiy  21,  1903.  G.  21506,  Oct,  1907;  1I^1J^8-B,  Jan.,  1906.  There 
is  no  legal  objection  to  a  lease  for  a  term  of  five  years  from  May  1, 
1907,  for  a  lump  consideration,  payable  in  advance,  as  in  the  account- 
ing for  the  appropriation  made  by  section  1661,  R.  S.,  as  amended, 
the  fiscal  year  is  not  considered.  0.  21506,  Oct.,  1907;  Mar.  and 
July,  1908;  20989,  Dec,  1908.^  A  lease  for  a  target  ran^e  was  for 
10  years.  Held,  that  unless  there  are  funds  from  the  existing  appro- 
priation to  meet  the  rental  for  the  entire  period,  a  stipulation  should 
be  inserted  in  the  lease  to  the  effect  that  its  continuance  beyond  one 
year  is  conditioned  from  year  to  year  upon  future  appropriations 
from  which  the  rent  can  be  paid.  0.  20989,  Dec,  1909,  Mar.,  April, 
and  May,  1910.  Held,  that  there  would  be  no  objection  to  an  option 
in  such  a  long  term  lease,  on  the  part  of  the  lessee  to  terminate  the 
lease  upon  giving  90  days'  notice.     G.  21506,  Oct.,  1907. 

VICI  c(4).  The  property  intended  to  be  leased  was  not  de- 
scribed in  terms  sufficient  to  identify  it,  but  lield,  that  if  a  certain 
"strip  of  land"  answering  to  the  description  is  used  for  target-range 
purposes  during  the  period  specified,  the  lease  followed  by  such  use 
of  the  premises  may  be  regarded  as  sufficient  for  the  purpose  in 
view.  The  rent,  of  course,  should  not  be  paid  in  advance.  G. 
20989-A,  Apr.,  1910. 

VI  C  1  d.  An  officer  of  the  Organized  Militia  traveled  under  compe- 
tent orders  in  connection  with  the  acquisition  and  development  of  tar- 
get ranges.  Held,  that  he  was  entitled  to  his  actual  expenses  for 
travel  and  subsistence  out  of  the  funds  allotted  in  the  operation  of 
section  1661,  R.  S.,  as  amended.^  O.  I4I48-E,  Feh.  5,  1908;  19798, 
Apr.,  1908. 

VI  C  1  e.  If  a  lease  for  a  target  range  provided  that  the  buildings 
should  be  insured,  held,  that  the  expenditure  involved  in  taking  out 

1  See  XII  Comp.  Dec,  782.  2  xiU  Comp.  Dec,  69. 

31106°— 12 46 


722  MILITIA  VI   C   1   f. 

the  insurance  was  a  proper  one,  and  that  the  poHcy  should  be  kept 
with  the  other  papers  in  regard  to  the  lease  in  the  custody  of  the  dis- 
bursing officer  or  his  successor.  C.  20989,  Afr.,  1908.  The  above 
expenditure  would  be  a  part  of  the  consideration  for  the  rental  of  the 
property.  But  held,  if  there  is  no  provision  in  the  lease  requiring  the 
lessee  to  insure  the  building,  the  payment  of  premium  for  insurance 
would  not  be  a  proper  charge  against  the  appropriation.^  C.  20989, 
May,  1908. 

VI  C  1  f .  A  team  of  mules  was  purchased  out  of  State  funds  for  use 
on  a  State  rifle  range.  Held,  that  there  is  no  authority  for  issuing 
forage  purchased  from  funds  accruing  in  the  operation  of  section  1661, 
R.  S.,  ror  mules  so  purchased,  and  the  necessary  forage  must  be  pur- 
chased from  State  funds.     C.  1J^1J^8-G,  Dec,  1909. 

VI  C  1  g.  The  necessity  for  the  presence  of  water  on  a  target  range 
in  case  of  fire,  and  also  for  the  use  of  the  men,  is  well  understood. 
Held,  that  if  it  is  necessary  to  dig  a  well  and  equip  the  same  with  a 
pump  and  tanks  to  render  a  range  suitable,  the  necessary  expense 
connected  therewith  would  be  a  proper  charge  against  the  apportion- 
ment of  that  State  in  the  sum  appropriated  by  Congress  June  22, 
1906  (34  Stat.  449).     C.  19798,  July,  1907. 

VI  C  1  li.  A  State  leased  a  target  range  with  funds  from  its  allot- 
ment under  section  1661,  R.  S.  A  Mr. ,  under  a  claimed  prescrip- 
tive right,  proposed  to  run  a  road  along  the  beach  in  such  a  way  as 
to  seriously  interfere  with  the  operations  of  the  range,  as  the  road 
would  be  m  the  danger  zone  between  the  firing  point  and  the  bay. 
Held,  that  although  a  United  States  appropriation  is  used  for  the 
payment  of  the  rental,  the  lease  is  one  entered  into  by  the  State 
with  the  lessors,  and  the  matter  is  one  for  the  consideration  of  the 
State  authorities,  who  should  take  it  into  the  State  courts  for  the 
purpose  of  seeking  whatever  remedy  is  necessary  and  proper.  C. 
21506,  Oct.  30,  1907. 

VI  C  1  i.  On  request  by  the  Chief  of  Division  of  Mihtia  Affairs  for 
an  opinion  as  to  the  membership  of  a  board  appointed  to  examine 
into  claims  for  damages  to  property  because  of  target  practice,  it  was 
Jield  that  it  is  usual  for  leases  of  land  for  target  practice  purposes  to 
stipulate,  concerning  the  membership  of  the  board  to  pass  on  damage 
to  the  property,  that  one  member  shall  be  appointed  by  the  lessor, 
one  by  the  lessee,  and  the  third  by  these  two  so  appointed,  and  that 
their  finding  shall  be  final  when  approved  by  the  disbursing  officer  or 
by  some  general  officer  of  the  mihtia.     C.  20989-A,  Apr.  28,  1910. 

VI  C  1  j.  The  lease  of  a  tract  of  land  for  use  as  a  rifle  range  provides 
for  the  payment,  inter  alia,  of  '^  damages  done  as  specified  to  crops  and 
all  other  property  on  said  premises."  A  claim  was  submitted  for 
$24.75,  the  value  of  fruit  trees  which  were  destroyed  or  removed  in 
order  to  better  adapt  the  premises  for  the  purposes  for  which  they 
had  been  leased.  Held,  that  the  claim  is  a  legitimate  claim  against 
the  funds  placed  to  the  credit  of  the  disbursing  officer,  under  section 
1661,  R.  S.,  as  amended.     C.  20989,  May,  1909. 

VI  C  1  k.  Land  was  purchased  from  appropriations  made  by  Con- 
gress for  the  use  of  the  militia  of  the  State  as  a  rifle  range,  the  title 

^  XIV  Comp.  Dec,  836.  Insurance  of  buildings  on  a  range  that  has  been  leased  is 
not  authorized  under  the  act  of  June  22,  1906  (34  Stat.  450). 


MILITIA  VI  C  2  a.  723 

being  in  the  United  States.  Held,  that  it  might  be  leased  for  use  as  a 
pasture  under  such  conditions  as  would  not  interfere  in  any  way  with 
the  use  of  the  range  for  the  purposes  for  which  acquired.  The  rent 
would  belong  to  the  United  States,  and  should  be  deposited  to  the 
credit  of  miscellaneous  receipts.  It  would,  however,  be  legal  for  the 
adjutant  general  of  the  State  to  authorize  the  use  of  the  range  for  pas- 
ture, under  a  revocable  license,  and  conditions  might  be  imposed  re- 
quiring the  licensee  to  do  certain  work,  under  the  supervision  and  to 
the  satisfaction  of  the  adjutant  general,  in  the  nature  of  betterments 
of  range.     C.  26465,  Apr.,  1910. 

VI  C  2  a.  The  act  of  June  22,  1906  (34  Stat.  449),  makes  provision 
in  favor  of  the  militia  for  the  promotion  of  rifle  practice.  Held,  that 
that  appropriation  covers  payment  of  salary  and  expenses  of  inspec- 
tors engaged  in  the  work  of  promoting  rifle  practice  within  a  State, 
except  during  encampment,  maneuvers,  etc.,  when  they,  with  other 
militia  are  entitled  to  pav,  transportation,  and  subsistence  under 
another  appropriation.  Also  held,  that  the  act  of  June  22,  1906, 
would  not  cover  the  payment  of  a  yearly  sum  to  officers  or  enlisted 
men  of  the  Organized  ^lilitia  of  a  State,  where  the  laws  of  a  State 
provide  for  the  payment  of  3  cents  per  shot  for  from  50  to  250  rounds 
fired  by  each  man  on  a  State  ran^e  during  the  year.  O.  20168,  Aug. 
8,  1906.  Held,  that  the  expenditure  for  the  incidental  expenses  of 
carrying  on  rifle  matches,  including  pay  of  men  working  targets  and 
purchase  of  prizes  can  only  become  a  proper  charge  against  the  allot- 
ment to  a  State  under  section  1661,  R.  S.,  as  amended,  where  the 
subject  presented  has  been  made  the  subject  of  the  favorable  exercise 
of  discretion  on  the  part  of  the  Secretary  of  War,  in  wliich  case  these 
expenditures  would  be  properly  chargeable  to  that  portion  of  the 
allotment  set  aside  for  the  promotion  of  rifle  practice.  C.  20168, 
July  15, 1909. 

VI  C  2  b.  The  service  of  teams  of  5  men  from  each  company  of  the 
National  Guard  of  a  State  at  a  target  competition  ordered  by  the  gov- 
ernor, held,  to  be  ''actual  field  or  camp  service  for  instruction,"  and 
the  members  of  the  teams  entitled  to  pay,  subsistence,  and  transporta- 
tion under  section  14,  act  of  January  21,  1903.^  C.  HHS-A,  Aug. 
21,  1905. 

VI  C  2  c.  On  request  for  information  as  to  whether  or  not  State 
teams  at  the  annual  competition  at  Seagirt,  N.  J.,  or  elsewhere,  may 
be  paid  from  funds  accruing  to  the  several  States  under  section  1661, 
R.  S.,  and  section  14  of  the  act  of  January  21,  1903  (32  Stat.  777), 
held,  that  transportation  ^  and  subsistence  may  be  so  paid.  C.  14H8, 
Feb.  11,  1903.  Held,  also  that  the  cost  of  commutation  of  rations 
at  a  rate  specified  in  Army  Regulations  would  constitute  a  proper 
charge  in  favor  of  enlisted  militia  competitors  participatmg  in 
matciies  at  Seagirt,  N.  J.,  against  the  allotment  accruing  to  a  State 
in  the  operation  of  section  14  of  the  act  of  January  21,  1903  (32  Stat. 
777).  ^  C.  1414s- A,  May  2,  1905. 

A  rifle  team  to  represent  a  State  in  the  national  match  is  made 
up  of  men  from  different  compj^nies.  Held,  that  each  man,  respec- 
tively, is  entitled  to  pay,  transportation  and  subsistence  under  section 

1  X  Comp.  Dec,  477. 

2  XIII  Comp.  Dec.  715,  an  officer  not  entitled  to  mileage. 


724  MILITIA  VI   D   1. 

14  of  the  act  of  January  21,  1903,  from  the  date  of  starting  from 
the  station  of  his  company.^     G.  I4IJ1.S-B,  Aug.  10,  1906. 

A  team  composed  of  commissioned  officers  and  enlisted  men 
having  been  selected  to  represent  the  Organized  Militia  of  a  State  or 
Territory  at  the  national  match,  actually  attends  the  national  com- 
petition for  a  greater  period  of  time  than  necessary  to  shoot  the 
national  match,  and  participates  in  prior  matches.  Held,  that  while 
in  attendance  on  the  national  match  the  subsistence  of  the  enlisted 
men  will  be  defrayed  from  the  support  of  the  Army  and  while  in 
attendance  at  the  prior  matches  the  subsistence  of  the  enlisted  men 
will  be  defrayed  from  the  funds  accruing  to  the  State  under  its 
apportionment  under  section  1661,  R.  S.  The  commissioned  officers 
must  subsist  themselves  from  their  pay  as  do  regular  officers.^  O. 
14148-G,  Aug.  19  and  20, 1909. 

An  organization  of  artillery  in  a  State  was  classed  as  reserve 
militia  and  not  a  part  of  the  National  Guard  of  the  State.  It  does 
not  receive  any  funds  from  the  State's  apportionment  under  section 
1661,  R.  S.  Held,  that  service  in  that  organization  does  not  count 
as  service  in  the  National  Guard  of  the  State,  that  can  be  used  to 
render  men  eligible  to  serve  on  the  State  rifle  team  at  the  national 
match.     C.  19798,  July,  1907. 

'  On  a  request  that  fi\e  officers  of  the  National  Guard  be  per- 
mitted, as  spectators,  to  accompany  the  State  team  of  18  to  the 
national  match  at  Seagirt,  N.  J.,  it  was  held,  that  transportation,  pay 
and  subsistence  can  not  be  allowed  them.     C.  I4148-A,  June  3,  1905. 

VI  D  1.  Section  18  of  the  act  of  January  21,  1903  (32  Stat.  778) 
provides  that  each  State  or  Territory  shall,  during  the  year  next 
preceding  each  annual  allotment  of  funds  in  accordance  with  section 
1661,  E,.  S.,  as  amended,  require  every  company,  troop  and  battery 
in  its  Organized  Militia,  not  excused  by  the  Governor,  to  participate 
in  practice  marches,  camps  of  instruction,  or  drill  instruction  at 
armories,  or  target  practice  for  a  stated  time,  or  number  of  days, 
and  have  required  during  such  year  an  inspection  by  an  officer  of  the 
militia  or  of  the  Regular  Army.  Held,  that  the  word  ^'year"  refers 
to  a  calendar  and  not  a  fiscal  year.     G.  14^48,  May  20,  1903. 

VII  A.  Section  1661  R.  S.,  as  amended  by  the  act  of  June  22,  1906 
(34  Stat.  450),  makes  provision  for  the  promotion  of  rifle  practice. 
Held,  that  the  cost  of  transportation  ^  of  freight  of  target  supplies  from 
the  State  arsenal  to  the  different  rifle  ranges  in  the  State  is  a  proper 
charge  against  the  above  appropriation.  G.  I4148-F,  Apr.  16,  1909. 
Also  Tield,  that  the  above  appropriation  includes  authority,  to  pay  for 
the  storage  of  equipment  pendmg  the  completion  of  the  lease  of  the 
target  range,  and  to  pay  tTie  dray  charges  from  the  place  of  storage 
to  the  place  where  the  equipment  is  to  be  installed.  G.  IAI48-G, 
Feh.  9,  1907. 

VII  B.  The  cost  of  transporting  new  material  and  supplies  which 
are  issued  by  the  staff  departments  to  the  Organized  Militia  will  be 
borne  by  the  United  States  and  paid  out  of  ''  Transportation  of  the 
Army."     But  Tield,  that  the  cost  of  return  transportation  from  the 

1  X  Comp.  Dec,  392  and  479. 

2  X  Comp.  Dec,  400  and  479. 

^  See  XIII  Comp.  Dec,  420.  Appropriations  for  Regular  Army  not  available  for 
payment  of  transportation  of  militia. 


MILITIA  VII  C.  725 

State  armories  to  the  depots  and  arsenals  of  the  United  States  can 
not  be  paid  from  ''Transportation  of  the  Army."  Also,  lieldy  that 
articles  of  equipment  and  supplies  which  have  been  rendered  unser- 
viceable bv  lair  wear  and  tear  in  the  service,  must  be  transported  at 
the  cost  of  the  State  to  which  they  have  been  issued  under  its  appor- 
tionment of  section  1661,  R.  S.  Also,  Jieldy  that  repairs  made  neces- 
sary by  reason  of  unavoidable  accident  or  fair  wear  and  tear  in  the 
service  can  not  be  differentiated  from  those  which  have  been  made 
necessary  through  neglect  or  carelessness  or  avoidable  accident,  in 
determining  the  cost  of  payment  of  transportation.  C.  Hl^S-G; 
Dec.  4,  1906,  Apr.  18,  1907,  Mar.  24,  1908,  Jan.  5, 1909,  arid  May  6, 
1910;  1U55,  Feb.  27,  1908. 

VII  C.  The  act  of  April  23,  1904  (33  Stat.  265),  forbids  the  pay- 
ment of  any  of  the  expenses  of  the  Organized  Militia  in  joint  encamp- 
ment with  the  Regular  Army  out  of  funds  appropriated  for  the 
Regular  Army,  and  the  act  of  June  12,  1906  (34  Stat.  249),  limits  the 
expenditure  of  funds  appropriated  for  expenses  of  the  Organized 
Militia  so  participating  in  jomt  encampments  to  the  period  of  time 
from  the  date  of  leaving  the  home  rendezvous  to  date  of  return  thereto.^ 
Held,  that  a  State  can  not  be  reimbursed  for  freight  on  blankets  and 
ponchos  shipped  from  the  State  arsenal  to  stations  of  the  different 
companies  as  part  of  their  equipment  for  movement  to  the  camp  of 
instruction.     C.  I4I48-C,  Feb.  15,  1907. 

VII  D.  The  Comptroller  of  the  Treasury  having  decided  that  the 
travel  of  the  rifle  team  of  the  Territory  of  Hawaii  from  Honolulu  to 
Camp  Perry,  Ohio,  and  return,  under  orders  from  the  War  Depart- 
ment, arrangements  havuig  been  made  by  the  Territorial  authorities, 
was  properlv  chargeable  against  the  pro  rata  amount  allotted  by  the 
Secretary  01  War  to  the  Territory  of  Hawaii  from  funds  appropriated 
by  Congress  for  the  support  of  the  militia,  and  that  the  travel  of  the 
team  is  therefore  as  troops  of  the  United  States,  and  that  the  laws 
relating  to  the  transportation  of  United  States  troops  apply ;  ^  and 
that  the  team  is  entitled  to  transportation  at  a  rate  not  to  exceed  50 
per  cent  of  the  compensation  for  such  Government  transportation 
over  50  per  cent  land-grant  lines  as  shall  at  that  time  be  charged  to 
and  paid  by  private  parties  to  any  such  company  for  like  and  similar 
transportation,  and  it  is  also  entitled  to  bond-aided  deductions  over 
the  Central  Pacific  bond- aided  line.  Held,  that  the  above  decision 
of  the  comptroller  would  be  held  to  apply  to  rifle  teams  from  the  dif- 
ferent States  as  well  as  to  the  team  from  Hawaii,  as  the  orders  for  such 
travel  are  issued  with  the  prior  sanction  of  the  War  Department,  and 
the  payment  for  the  expense  of  executing  such  orders  is  made  from 
appropriations  by  Congress,  expended,  as  stated,  through  a  disbursing 
officer  of  the  United  States.^     C.  19798,  Aug.,  1907. 

VII  E.  A  railroad  claimed  that  the  Militia  of  a  State  while  travel- 
ing under  War  Department  orders  was  not  entitled  to  the  50  per 
cent  land-grant  reduction  which  is  allowed  the  United  States  when 
regular  troops  are  transported.  Held,  that  the  travel  required  of 
Organized.  MiHtia  under  the  orders  of  the  War  Department  is  as  troops 
of  the  United  States  and  that  the  laws  relating  to  the  transportation 

^  For  transportation  of  horses  of  mounted  officers  from  home  rendezvous  to  the 
place  of  encampment  and  return  see  X  Comp.  Dec,  227. 
"^  See  X  Comp.  Dec,  227,  Transportation  of  horses  of  mounted  officers. 
^  See  Comptroller's  Decision  published  in  Cir.  No.  41,  June  22,  1907. 


726  MILITIA  VII  P. 

of  United  States  troops  apply.  The  payment  under  the  act  of  March 
23,  1910  (36  Stat.  251  and  255),  for  such  travel  should,  therefore,  be 
governed  by  the  same  restrictions  as  apply  to  the  transportation  of 
troops  of  the  United  States.^  C.  I4I48-G,  May  10, 1910;  19798,  Aug. 
8,  1907;  14148,  Aug.  22,  1907. 

VII  F.  The  spring  inspection  of  militia  batteries  required  travel 
by  an  armament  foreman  of  a  district.  Held,  that  this  travel  is  a 
lawful  charge  against  the  funds  accruing  to  the  State  in  the  operation 
of  section  1661,  R.  S.,  and  section  14  of  the  act  of  January  21,  1903,  as 
amended.     C,  I4I48-F,  Mar.  13,  1909. 

VIII  A.  The  intent  of  Congress  in  its  legislation  respecting  the 
militia  has  been  to  contribute  to  its  support  by  providing  the  arms, 
armament,  clothing,  and  equipment  which  were  necessary  to  prepare 
it  for  active  service,  leaving  to  the  States  the  duty  of  providing  its 
armory  facilities  and  current  expenses,  including  such  outlay  as  might 
be  found  necessary  for  the  security  and  preservation  of  the  armament 
and  military  stores  provided  for  its  use  by  the  General  Government. 
Held,  that  the  cost  of  the  installation  of  wall  lockers  in  the  barracks 
to  preserve  arms  and  equipment  should  be  defrayed  by  the  State  and 
not  by  the  United  States.  C.  11083,  Aug.  22,  1901.  Held,  that 
wall  lockers  can  not  be  supplied  under  section  3  of  the  act  of  June  22, 
1906.     C.  14148-C,  May  23,  1907. 

VIII  B.  Where  aliens  desired  to  use  a  State  armory  for  drill 
purposes;  suggested  that,  as  the  association  of  aliens  might  result  in 
acts  constituting  a  violation  of  the  neutrality  laws  and,  as  such,  call 
for  action  on  the  part  of  the  proper  departments  of  the  United  States 
Government  with  a  view  to  the  maintenance  of  its  neutrality  obliga- 
tions, the  proposed  organization  of  aliens  be  regarded  with  disfavor, 
and  the  Department  of  State  be  requested  to  aavise  the  proper  State 
authorities  of  the  consequences  which  may  ensue  upon  the  granting 
of  permission  to  use  the  State  armory  for  the  purposes  above  men- 
tioned.    C.  18088,  Sept.  7,  1910. 

IX  A  1 .  Blank  forms  and  blank  books  prescribed  for  use  of  the 
Army  are  ^'suppKes"  within  the  meaning  of  section  17  of  the  act  of 
January  21,  1903  (32  Stat.  778),  and  are,  therefore,  subject  to  issue 
or  sale  as  therein  provided,  to  State  authorities  for  the  use  of  the 
militia.  C.  I4148-O,  Jan.  29,  1907.  Held,  that  .the_  expense  of 
printing  blank  forms  for  the  use  of  the  Organized  Mihtia  01  a  State 
would  constitute  a  proper  charge  against  its  allotment  under  section 
1661,  R.  S.,  as  amended,  as  authorized  in  the  first  part  of  section  17 
of  the  act  of  January  21,  1903  (32  Stat.  777).  ^  0.  I4148-B,  Nov.  3, 
1906.  Held,  that  a  cashbook  such  as  is  supplied  to  disbursing  offi- 
cers of  the  Quartermaster's  Department,  can  be  issued  as  a  part  of 
a  State  disbursing  officer's  equipment  under  the  last  clause  of  sec- 
tion 14  of  the  act  of  January  21,  1903.  C.  I4148,  Dec.  29,  1903. 
Held  that  the  issue  of  clothing  in  stock  to  a  State  upon  proper  requisi- 
tion, which  clothing  is  not  needed  to  supply  the  current  demands  of 
the  Regular  Army,  is  mandatory,  provided  the  sum  standing  to  the 
credit  of  the  State  in  the  operation  of  section  1661,  R.  S.,  is  enough 
to  reimburse  the  Department  for  the  cost  of  the  articles  called  for. 
G.  14148-F,  Oct.  13,  1908.     Held,  that  the  same  fire  control  equip- 

1  See  41  MSS.  Comp.  Dec,  927,  May  23,  1907.  See  also  XIV  Comp.  Dec,  912; 
XVI  id.,  70. 


MLiTiA  IX  A  2  a.  727 

ment  that  is  issued  by  the  Signal  Corps  to  field  batteries  of  the  Keg- 
ular  Army  may  be  furnished  without  cost  to  States  by  the  Signal 
Corps  through  the  Ordnance  Department,  and  the  appropriation  in 
favor  of  the  Signal  Corps  may  be  reimbursed  by  the  transfer  from 
the  balances  remaining  from  the  several  appropriations  in  question. 
This  permits  the  accounting  to  be  made  on  one  set  of  returns  to  the 
Ordnance  Department.^     G.  UUS-G,  Feb.  2,  1910. 

IX  A  2  a.  Section  3  of  the  act  of  January  21,  1903  (32  Stat.  775), 
was  amended  by  the  act  of  May  27,  1908  (35  Stat.  399),  so  as  to  pro- 
vide an  exception  to  the  rule  that  the  regularly  enUsted,  organized, 
and  uniformed  active  militia  in  the  several  States  and  Territories 
and  the  District  of  Columbia  shall  be  required  to  have  on  and  after 
January  21,  1910,  the  same  armament  as  that  which  is  prescribed 
the  Regular  Army  of  the  United  States.  This  rule  is  ''subject  in 
time  of  peace  to  such  general  exceptions  as  may  be  authorized  by 
the  Secretary  of  War."  Held,  that  under  this  exception  the  Secre- 
tary of  War  may  prescribe  a  rule  of  armament  for  Field  Artillery  in 
the  National  Guard  under  w^hich  if  a  battalion  of  Field  Artillery  has 
the  complete  personal  equipment  which  fits  it  for  active  service,  but 
has,  due  to  the  fact  that  the  United  States  has  not  yet  made  ample 
provision  for  Field  Artillery  material,  only  sufficient  Field  Artillery 
material,  including  guns,  caissons,  etc.,  to  fully  equip  one  battery, 
its  armament  shall  be  held  to  conform  to  the  requirement  of  section 
3  of  the  act  of  January  21,  1903,  as  amended  by  the  act  of  May  27, 
1908.     0.  14148-H,  May  10,  1911. 

IX  B  1.  Section  17  of  the  act  of  January  21,  1903  (32  Stat.  778), 
brings  all  stores  that  are  procured  and  issued  to  the  Army  by  way 
of  the  supply  departments  within  the  operation  of  section  1661,  K.  S., 
as  amended,  and  the  act  of  February  12,  1887  (24  Stat.  401),  in 
respect  of  ownership  and  accounting.  This  property  must  be  ac- 
counted for  by  methods  prescribed  in  the  act  of  February  12,  1887, 
and  June  22,  1906  (34  Stat.  449).  0.  I4148-B,  Sept.  29,  1906. 
Held,  that  the  only  sales  ^  which  are  thus  authorized  to  be  made  to 
the  militia  are  to  States.  Sales  to  individuals  are  not  authorized. 
0.  14148,  June  19,  1903,  Oct.  26,  1907,  and  Jan.  22,  1908.  And 
the  request  for  the  purchase  of  such  supplies  should  be  signed  by 
the  governor  of  the  State  or  by  some  officer  representing  him.  U. 
1414s,  June  20,  1903.  But  if  the  requests  are  signed  by  the  gov- 
ernor he  may  vest  the  duty  of  signing  the  receipts  in  an  officer  of 
the  State  Militia.  C.  I4148-F,  Nov.  6,  1908.  States  can  purchase 
public  documents  for  cash  direct  from  the  office  of  the  superin- 
tendent of  documents.  Purchases  can  also  be  made  under  section 
17  of  the  act  of  January  21,  1903,  and  the  amount  charged  to  the 
allotment  of  the  State  under  section  1661,  R.  S.,  but  no  department 
has  been  charged  with  the  duty  of  making  these  sales.  C.  14^4^, 
June  22,  1903.  Held,  that  a  trunk  locker  may  be  sold  to  a  State 
under  the  general  terms  of  section  17  of  the  act  of  January  21,  1903. 
G.  14148-F,  Apr.  24,  1909.  Held,  in  view  of  the  requirement  of  the 
act  of  June  6,  1906  (34  Stat.  252),  that  the  number  of  horses  pur- 
chased under  that  appropriation  added  to  the  number  now  on  hand, 
shall  be  Hmited  to  the  actual  needs  of  the  military  service;  that  bat- 

*  For  appropriation  against  which  tentage  is  charged,  see  XI  Comp.  Dec,  356. 
2  X  Comp.  Dec,  165.     Disposition  of  moneys  received  from  sales  to  States. 


728  MILITIA  IX   C. 

tery  horses  can  not  be  issued  or  sold  to  a  State  in  the  operation  of 
section  17  of  the  act  of  January  21,  1903.  C.  I4148-C,  Mar.  25,  1907. 
This  prohibition  applies  also  to  Cavalry  and  Artillery  horses.  G. 
14148-G,  Nov.  8,  1909,  and  Apr.  3,  1911.  And,  also,  held  that  sales 
to  a  State  for  the  use  of  its  State  poUce  would  not  be  authorized 
under  section  17  of  the  act  of  January  21,  1903.  C.  I414S-B,  Jan. 
11,  1906. 

Under  the  miUtia  act  of  January  21,  1903,  sales  may  be  made  to 
States  at  the  discretion  of  the  Secretary  of  War,  for  the  use  of  the 
miUtia.  There  is  no  authority  for  sales  to  States  and  Territories  for 
other  purposes.  Held,  therefore,  upon  application  by  a  governor  for 
permission  to  purchase  flags  for  the  capitol,  that  such  purchase 
could  not  be  considered  as  for  the  use  of  the  militia.  0.  15286,  Oct. 
6,  1903.  HeU,  ths^i  under  authority  of  the  act  of  March  3,  1905  (33 
Stat.  986),  a  rifle  of  the  model  used  by  the  Army  may,  upon  the 
request  of  the  governor  of  a  State,  be  sold  by  the  Secretary  of  War, 
provided  it  is  purchased  for  the  use  of  a  rifle  club  and  is  to  be  used 
in  conformity  to  the  regulations  prescribed  by  the  Secretary  of  War, 
with  a  view  to  the  promotion  of  rifle  practice  among  members  of 
the  reserve  mihtia.     C.  I4148-B,  Feb.  3, 1906. 

IX  C.  Requests  for  the  loan  of  tents,  flags,  and  other  pubHc  prop- 
Q>vij  under  the  control  of  the  War  Department  have  as  a  rule  been 
denied  on  the  ground  that  the  Secretary  of  War  had  no  authority  to 
loan  pubhc  property  under  his  control  unless  authorized  to  do  so  by 
resolution  or  act  01  Congress.^  While  there  have  been  instances  in 
which  dredges  and  other  public  property  used  for  the  improvement 
of  navigation  have  been  loaned  under  authority  of  the  War  Depart- 
ment, the  practice  has  been  with  few  exceptions,  in  accordance  with 
the  view  that,  in  the  absence  of  authority  from  Congress,  the  Secre- 
tary of  War  can  not  legally  loan  personal  property  of  the  Govern- 
ment. C.  1561,  July,  1895;  2265,  May,  1896;  I4148-E,  Feb.  29, 
1908.  Held  that  in  the  absence  of  congressional  authority  Govern- 
ment ambulances  could  not  be  loaned  to  the  National  Guard  of  a 
State  for  use  on  a  practice  march.  0.  1561,  supra.  Held,  that 
United  States  horses  can  not  be  loaned  to  the  National  Guard  for 
use  at  an  annual  encampment.     0.  10655,  June,  1901. 

IX  D.  The  Secretary  of  War  has  no  authority  to  relieve  a  gov- 
ernor for  accountability  for  supplies  which  have  been  receipted  for 
by  him,  although  they  may  have  been  subsequently  lost,  destroyed, 
or  stolen.  Congress  alone  can  grant  the  desired  relief.  G.  13419, 
Nov.  20,  1902;  Mar.  11,  1903.  But  held,  that  where  ordnance  and 
ordnance  stores  of  the  United  States  in  custody  of  the  governor  of  a 
State  have  been  destroyed  and  the  loss  is  covered  by  insurance,  the 
insurance  money  may  be  applied  by  the  State  to  the  purchase,  under 
authority  of  the  act  of  February  24,  1897  (29  Stat.  592),  of  stores 
and  supplies  in  lieu  of  those  destroyed  and  be  taken  up  and  accounted 
for  by  the  State  in  place  of  those  destroyed.  G.  10795,  July  12, 1901. 
Also  held,  however,  that  such  incidental  acquisition  of  property^  by 
renting,  as  becomes  necessary  in  the  establishment,  construction, 
and  maintenance  of  target  ranges  and  shooting  galleries,  need  not  be 
annually  accounted  for  by  the  governor,  but  instead,  dropped  on  the 

^  Such  action,  for  example,  was  taken  by  the  War  Department  June  24,  1895,  oita 
request  for  the  loan  of  flags  to  be  used  at  an  encampment. 


MILITIA   IX   E.  729 

vouchers  reporting  their  rent,  provided  the  rental  is  approved  by  the 
Secretary  of  War.  C.  I4I48-B,  Sept.  29,  1906.  Also  held,  that 
section  4  of  the  act  of  June  22,  1906  (34  Stat.  450),  relates  to  all 
property  in  the  hands  of  the  militia  not  accounted  for  at  the  date  of 
its  approval,  as  to  which  no  final  settlement  has  been  reached,  and 
its  operation  is  to  provide  a  method  of  settlement  in  such  cases.  It 
extends  relief  for  property  lost,  destroyed,  or  rendered  unserviceable 
due  to  carelessness  or  neglect  prior  to  the  passage  of  said  statute  by 
providing  that  the  money  value  of  stores  so  lost  or  destroyed  shall  be 
charged  against  the  allotment  to  the  State  under  section  1661  R.  S., 
as  amended.  C.  I4I48-C,  Apr.  IS,  1907.  Also  held,  that  it  is  now 
settled  law  that  in  the  absence  of  legislation  sanctioning  it  no  execu- 
tive department  or  officer  can  dispose  of  personal  property  of  the 
United  States  by  sale  or  otherwise.     C.  14454,  Apr.  17,  1903. 

IX  E.  Two  ambulances  which  had  been  issued  to  a  State  for  the 
use  of  its  Organized  Militia  needed  repair.  Held,  that  the  cost  of 
such  repairs  constitutes  a  proper  charge  against  the  allotment  ac- 
cruing to  that  State  in  the  operation  of  section  1661,  R.  S.,  as 
amended  by  the  act  of  June  22,  1906  (34  Stat.  449).  C.  I4I48-H, 
Sept.  5,  1910. 

IX  F.  Certain  members  of  the  National  Guard  of  a  State  refused, 
upon  demand,  to  return  property  which  had  been  used  by  them 
while  participating  in  the  maneuvers  on  a  military  reservation. 
Held,  that  any  legal  proceeding  with  a  view  to  the  recovery  of  arms 
or  other  property,  which  had  been  issued  to  a  State  for  the  use  of  its 
Organized  ^lilitia,  should  be  instituted  in  the  State  courts,  whose 
jurisdiction  in  the  matter  is  original,  as  the  custody  and  possession 
of  the  property  is  in  the  State,  although  the  ultimate  ownership  of  the 
arms  and  other  property  is  in  the  United  States.  C.  1414^-^1  Oct. 
25,  1906,  July  5,  1907,  Mar.  23,  1908,  July  27,  1909;  16107-A  July 
17,  1909. 

IX  G.  Under  section  4,  act  of  June  22,  1906  (34  Stat.  450),  clothing 
which  has  been  in  use  by  the  National  Guard  of  the  District  and 
w^hich  has  been  condemned  may  be  placed  in  the  custody  of  the 
trustees  of  the  National  School  for  Boys,  for  the  use  by  the  boys 
brigade  which  is  being  organized  at  the  school,  upon  the  receipt  of  a 
satisfactoiy  undertaking  by  the  trustees  that  the  clothing  so  trans- 
ferred shall  after  use  be  destroyed.  C.  I4I48-F,  Apr.  6,  1909.  In 
view  of  the  fact  that  the  authority  of  the  Secretary  of  War  over  the 
property  in  the  custody  of  the  department  is  plenary,  and  that  it  is 
wdtnin  his  power  to  order  another  disposition  of  the  property  than 
that  recommended  by  the  inspector,  held,  that  if  he  is  satisfied  that 
condemned  clothing  of  the  District  National  Guard  will  be  used  to 
relieve  suffering,  he  may  regard  its  transfer  to  the  Associated  Chari- 
ties as  equivalent  to  its  destruction,  and  may  modify  the  action 
recommended  by  the  inspector  in  such  a  way  as  to  authorize  the 
transfer  of  the  condemned  article  to  the  Associated  Charities  for 
charitable  uses.  C.  25978,  Dec.  20,  1909.  Held,  also,  that  a  fire- 
control  system  damaged  by  fire  should  be  acted  upon  by  a  survey- 
ing officer.     C.  14148-H,  Feb.  15,  1911. 

IX  H.  Section  4  of  the  act  of  June  22,  1906,  provides  "That 
whenever  any  property  furnished  to  any  State  or  Territory  or  the 
District  of  Columbia,  as  herein  before  provided,  has  been  lost  or 
destroyed,  or  has  become  unserviceable  or  unsuitable  from  use  in 


730  MILITIA  IX  I. 

service,  or  from  an^  other  cause,  it  shall  be  examined  by  a  disinter- 
ested surveying  officer  of  the  Organized  Militia."  Held,  that  under 
the  limitation  contained  in  the  above  law,  a  Regular  Army  officer  on 
duty  with  the  Organized  Militia  of  a  State  can  not  legally  be  ordered 
to  act  as  a  surveying  officer  on  the  unserviceable  property.  C. 
lJf.lJi.8-E,  Feb.  5,  1908.  Held,  that  the  above  provision  applies  also 
to  a  retired  officer  of  the  Regular  Army  who  is  on  duty  with  the 
Organized  Mihtia  of  a  State.  C.  141Jf8-E,  May,  1908.  Held,  how- 
ever, that  if  such  retired  officer  on  duty  with  the  National  Guard  of  a 
State  actually  holds  a  commission  as  an  officer  of  the  Organized 
Militia  of  the  State,  he  may  act  as  surveying  officer  under  the  pro- 
visions of  the  law  above  cited.     C.  1414^-G,  Nov.  1,  1909. 

IX  I.  The  practice  of  accepting  certificates  in  matters  relating  to 
property  accountabihty  has  thus  far  been  restricted  to  officers  of  the 
Army,  and  is  to  some  extent  based  on  the  oath  of  office  which  is 
required  by  law  to  be  taken  by  that  class  of  public  officers.  Officers 
of  the  Organized  Militia  do  not  take  that  oath,  and  are  not  subject 
to  the  operation  of  the  Articles  of  War.  Held,  that  affidavits  instead 
of  certificates  should  be  required  in  support  of  the  findings  of  boards 
of  survey  in  respect  to  the  loss  of  or  damage  to  articles  of  public 
property  which  are  issued  to  the  several  States  for  the  use  of  their 
Organized  Mihtia.  C.  17099,  Nov.  18  and  Dec.  21,  WOJ^;  17265,  Bee. 
15,  1904'  Held,  that  an  oath  to  the  loss  of  or  damage  to  property 
can  be  administered  only  by  one  who  has  been  thereto  expressly 
authorized  by  law.     C.  18026,  May  18,  1905. 

IX  J.  The  Army  appropriation  act  of  May  26,  1900  (31  Stat.  205), 
contains  a  proviso  to  the  effect  that  the  Secretary  of  War  is  authorized, 
on  the  application  of  a  governor,  to  replace  quartermaster  supplies, 
which  the  volunteers  carried  into  the  service  of  the  United  States, 
during  the  recent  War  with  Spain,  and  which  have  been  retained  by 
the  United  States.  Held,  that  the  proviso  applies  not  only  to  stores 
which  were  furnished  the  States  or  Territories  under  the  annual 
militia  appropriation,  but  also  to  supplies  purchased  by  the  States 
and  Territories;  and  it  authorizes  the  replacing  of  the  property, 
article  for  article,  but  does  not  require  that  the  replacing  articles  must 
be  strictly  new.     C.  8417,  June,  1900.  ^ 

X  A  1.  Section  3690,  R.  S.,  in  providing  that  balances  of  appropria- 
tions for  any  fiscal  year  remaining  unexpended  at  the  end  of  such  year 
shall  not  be  applied  to  the  '^ fulfillment"  of  any  contracts  except  those 
'^  properly  incurred  during  that  year,"  ^  expressly  excepts  '^  permanent 
or  indefinite  appropriations."  The  existing  law  (sec.  1661,  R.  S.) 
makes  a  permanent  appropriation  of  a  certain  sum  annually  *^for  the 
purpose  of  providing  arms  and  equipments  for  the  militia."  Held  that 
a  balance  of  this  appropriation,  remaining  unexpended  on  the  last  day 
(June  30)  of  a  certain  fiscal  year,  could  legally  be  used  for  the  pay- 
ment of  a  contractor  in  December  following,  under  a  contract  entered 
into,  in  November,  with  the  Ordnance  Department  for  the  manufac- 
ture of  an  arm  intended  to  be  issued  to  the  militia.  R.  31,  85,  Dec, 
1870. 

X  A  2.  Moneys  drawn  from  Treasury  under  section  14  of  act  of 
January  21,  1903,  are  to  be  disbursed  under  direction  of  the  governor, 
for  payment,  subsistence,  or  transportation,  and  are  to  be  accounted 
for  m  accordance  with  the  rule  governing  the  disbursing  officers  of 

^See  VI  Comp.  Dec,  815;  id.,  898. 


MILITIA  X   B.  731 

the  War  Department.  C.  I4I4S,  June  10,  1903.  Held,  that  under 
section  14  0/  the  act  of  elanuary  21,  1903,  funds  can  only  be  turned 
over  to  a  State  or  Territory  on  a  requisition  made  by  the  governor 
thereof.^  C.  I4I48-A,  Aug.  25,  1905.  Held  also  that  a  payment  of 
National  Guard  forces,  by  a  State  adjutant  general,  from  personal 
funds  does  not  constitute  a  payment  under  the  law,  or  operate  to 
prevent  a  payment  bv  the  disbui'sing  officer  from  public  funds. 
C.  14148-11,  Jan.  19,  1911. 

X  B.  The  Secretaiy  of  War  is  not  required  by  the  act  of  April  20, 
1874,  to  cause  the  accounts  of  the  disbursing  officers  appointed  by  the 
governoi-s  of  States  and  Territories  under  authority  conferred  by  act 
of  January  21,  1903,  to  be  mspected.     0.  I4I4S,  Oct.  15,  1903. 

X  C.  In  view  of  the  restrictions  contained  in  section  14,  act  of 
January  21,  1903,  and  in  the  act  of  June  22,  1900,  on  the  expenditure 
of  money  appropriated  for  the  Organized  Militia,  held,  that  clerk  hire 
for  disbursmg  officers  does  not  constitute  an  expenditure  which  is 
properly  chargeable  to  the  allotment  of  a  State  under  the  two  acts 
cited  above.     0.  I4148-G,  Apr.,  1907.  ^ 

X  D.  Held,  that  the  status  of  Hawaii  is  that  of  a  Territory  of  the 
United  States  within  the  meaning  of  the  mUitia  act  of  February  12, 
1887  (24  Stat.  401),  wliich  provides  that  of  the  annual  appropriation 
for  the  militia  (act  of  June  6,  1900,  31  Stat.  662),  such  proportion 
thereof  and  under  such  regulations  as  the  President  may  prescribe 
shall  be  apportioned  to  the  Territories  and  District  of  Columbia. 
0.  9176,  Oct.,  1900. 

X  E.  A  State  may,  under  its  allotment  under  section  1661,  R.  S., 
hire  horses  for  its  National  Guard  and  this  held  to  include  the  neces- 
sary horses  for  mounted  officers.  G.  1414^-^,  Aug.  6,  1908.  Held, 
that  the  cost  of  veterinary  attention  and  care  for  such  hired  horses 
will  constitute  a  charge  against  the  allotment  of  the  State  in  the 
operation  of  section  1661,  R.  S.,  as  amended,  and  of  section  2  of  the 
act  of  June  22,  1906  (34  Stat.  450).  Q.  I4I48-D,  Aug.  9,  1907, 
Oct.  12,  1908,  and  Oct.  23,  1908. 

X  F.  Held,  that  money  appropriated  under  section  1661,  R.  S.,  as 
amended  can  not  be  used  for  the  payment  of  caretakers  of  United 
States  property  in  the  custody  of  the  National  Guard.  G.  14^4^) 
Jan.  18, 1912. 

XI  A.  The  adjutant  general  of  a  State  is  clearly  an  officer  of  the 
Organized  Militia.  Held,  that  if  he  takes  part  in  actual  field  or 
camp  service  for  instruction  by  order  of  the  governor,  he  is  entitled 
to  pay  under  section  14  of  the  act  of  January  21,  1903,  and,  also,  if, 
after  having  been  properljr  detailed  in  appropriate  orders  by  the 
Secretary  of  War,  he  participates  in  joint  maneuvers  with  the  Regu- 
lar Army  as  is  contemplated  in  section  15  of  the  act  of  January  21, 
1903,  he  is  entitled  to  pay.^     G.  I4148,  Aug.  4,  1903. 

^  See  XIII  Comp.  Dec,  463.  Disbursing  officers  authorized  to  disburse  funds  for 
promotion  of  target  practice  under  sec.  2  of  the  act  of  June  22,  1906  (34  Stat.  449). 

2  See  XV  Comp.  Dec,  120.  The  method  of  computing  pay  prescribed  in  the  act 
of  June  30,  1906  (34  Stat.,  763),  is  not  applicable  to  the  militia.  A  militia  officer  on 
duty  at  an  encampment  is  not  entitled  to  pay  if  not  mustered  by  an  officer  of  the 
Regular  Army.  (See  XV  Comp.  Dec,  414.)  Militia  participating  in  joint  encamp- 
ments with  the  Regular  Army  should  be  paid  from  the  appropriation  "Encampments 
and  maneuvers,  Organized  Militia."  (XV  Comp.  Dec,  514  and  587.)  Accounting 
officers  of  the  United  States  have  no  jurisdiction  over  claims  arising  under  sec  14,  act 
of  Jan.  21,  1903.     (See  X  Comp.  Dec,  183,  392  and  635.) 


782  MILITIA  XI  B. 

XI  B.  Under  section  14  of  the  act  of  January  21,  1903  (32  Stat. 
776),  the  governor  of  a  State  has  discretion  to  order  the  heads  of 
staff  departments  to  take  part  in  a  camp  of  instruction  and  to  per- 
form certain  duties  in  connection  therewith.  Held,  that  these  officers 
while  so  engaged  are  entitled  to  pay  as  provided  in  the  above  section. 
C.  14148  B,  Sept.  11  and  17,  1906. 

XI  C.  Inquiry  was  made  as  to  whether  or  not  all  officers  on  the 
governor's  staff  would  be  entitled  to  be  paid  from  the  allotted  Gov- 
ernment funds  while  in  attendance  at  an  authorized  encampment. 
Held,  that  when  one  or  more  organizations  of  the  Organized  Militia 
of  a  State  is  or  are  authorized  by  the  Secretary  of  War  to  participate 
in  an  encampmnet  of  the  Kegular  Army  under  section  15  of  the  act 
of  January  21,  1903  (32  Stat.  776),  no  officers,  other  than  those 
belonging  to  the  organizations  which  have  been  authorized  to  partici- 
pate, can  be  paid  by  the  United  States  for  services  rendered  during 
the  encampment.!     C.  I4148  B,  Sept.  11,  1906. 

XI  D.  If  a  disbursing  officer  be  selected  froni  among  those  who  in 
pursuance  of  the  orders  of  the  governor  from  a  part  of  the  forces 
which  engage  in  camp  or  field  service  for  instruction,  lield,  that  he 
becomes  entitled  to  pay  under  section  14  of  the  act  of  January  21, 
1903;  otherwise  not.  G.  I4148,  Oct.  1903.  Held,  that  he  is  also 
entitled  to  pay  for  not  to  exceed  10  days  while  necessarily  engaged 
after  his  return  from  camp  in  preparing  his  accounts,  but  a  dis- 
bursing officer  who  is  not  a  member  of  the  militia  and  actively  par- 
ticipating in  the  encampment  is  not  entitled  to  pay  for  his  services. ^ 
C.  14148,  Oct.  20,  1903,  and  Sept.  9,  1904. 

XI  E.  An  assistant  surgeon  of  a  State  National  Guard  has  the 
rank  of  captain  either  by  an  appointment  to  the  office  of  assistant 
surgeon  with  that  rank  or  by  advancement  thereto  by  operation  of 
law  after  five  years'  service  in  the  grade  of  first  lieutenant.  Held, 
that  he  is  entitled  while  engaged  in  the  service  specified  in  sections 
14  or  15  of  the  act  of  January  21,  1903  (32  Stat.,  775),  to  the  pay  of 
the  rank  of  captain.^     C.  16975,  Oct.  5,  1904;  14148  F,  Apr.  15, 1909. 

XI  F.  A  disbursing  officer  can  not  legally  pay  enlisted  men  at  a 
different  rate  of  pay  from  that  allowed  enlisted  men  of  the  Regular 
Army  for  the  purpose  of  covering  the  hire  of  horses.  C.  I4148-B, 
Aug.  23,  1906.  Held,  that  if  an  officer  of  the  Organized  Mihtia  below 
the  grade  of  major,  whose  duty  requires  him  to  be  mounted,  provides 
himself  with  a  mount,  he  is  entitled  to  the  same  extra  pay  for  the 
same  period  of  time  as  an  oflftcer  of  the  Regular  Army  would  be  entitled 
to  under  the  act  of  May  11,  1908  (35  Stat.  108).  Also  heU,  that  if  the 
State  furnishes  an  officer  with  a  mount  from  horses  which  it  has  hired 
under  its  aUotment  under  section  1661,  R.  S.,  for  the  use  of  its  National 

*  See  X  Comp,  Dec,  360,  An  officer  temporarily  assigned  to  duty  with  an  organ- 
ization which  participates  is  entitled  to  pay.  See  XIV  id.,  665.  Participating  in 
a  review  of  the  Organized  Militia  with  the  governor  during  the  annual  encampment 
is  not  actual  field  or  camp  service  for  instruction, 

2  See  XVI  Comp.  Dec,  52,  and  XIV  Comp.  Dec,  418,  for  pay  of  disbiusing  officer 
who  participates  m  an  encampment.  Not  entitled  to  pay  for  participating  in  rifle 
practice.  See  X  Comp.  Dec,  405.  Disbursing  officer  not  entitled  to  reimbursement 
for  expenses  connected  with  furnishing  his  bond. 

3  XI  Comp.  Dec,  345. 


MILITIA  XI   G.  733 

Guard,  he  would  not  be  entitled  to  extra  pay  because  of  being 
mounted.'  C.  I4148-E,  June  29,  1908,  and  Aug.  6,  1908.  Held, 
that  there  is  no  provision  of  law  authorizing  reimbursement  in  full 
of  the  amounts  claimed  by  the  militia  officers  who  have  provided 
their  mounts  at  their  own  expense.     C.  I/1.I48-F,  Aug.  6,  1908. 

XI  G.  An  officer  of  the  National  Guard  is  not  entitled  to  increased 
pay  for  length  of  service,  when  the  service  has  been  rendered  as  a 
commissioned  officer  of  the  Organized  Militia  of  a  State  or  Territory, 
or  of  the  District  of  Columbia.^  C.  16976,  Oct,  190^.  Also  lield  that 
officers  of  the  Organized  Militia  are  not  entitled  to  longevity  pay 
because  of  previous  service  in  the  Regular  Army.*  C.  1414^-F,  July, 
1908. 

XI  H.  An  officer  was  ordered,  in  a  lawful  order,  by  the  governor, 
to  a  camp  ground  with  a  view  to  making  preparation  for  the  recep- 
tion of  troops  who  were  there  to  go  into  camp.  He  submitted  his 
accounts  with  the  muster  and  pay  rolls,  as  required  by  the  militia 
regulations.  Held,  that  the  charge  can  be  paid  from  funds  allotted 
under  sec.  1661,  R.  S.,  as  amended.     C.  I4148-F,  June  19,  1909. 

XI  I.  An  officer  of  the  National  Guard  of  a  State  served  as  a  mem- 
ber of  a  board  to  assess  damages,  as  a  result  of  joint  maneuvers. 
Held,  that  he  was  entitled  to  the  pay  and  allowances  of  his  rank  while 
the  organization  to  which  he  beIonf]jed  remained  on  duty,  and  after 
its  return  to  its  home  station,  until  the  board  completed  its  labors. 
The  compensation  to  be  paid  from  the  Army  appropriation  act  of 
June  12,  1906  (34  Stat.  252), '^ Barracks  and  quarters  "—item  ''For 
the  hire  of  buildings  and  grounds  for  summer  cantonments."  0. 
20112,  July  25  and  81,  1906. 

XI  K.  Upon  request  for  an  opinion  as  to  whether  an  officer  on 
duty  at  encampment  is  entitled  to  pay  while  on  leave  under  proper 
orders,  during  a  portion  of  the  period  while  encampment  is  in  progress, 
TieM,  that  he  is  not  entitled  to  pay  during  the  time  specified.  C. 
14148-A,  Aug.  25,  1905,  and  Oct.  1%,  1907. 

XI  L.  If  an  officer  of  the  retired  list  of  the  militia  of  a  State  be 
placed  on  active  duty  in  connection  with  camps  of  instruction, 
small-arms  competition,  etc.,  without  being  recommissioned  on  the 
active  list  in  the  Organized  Militia,  lield,  that  he  will  not  be  entitled 
to  pay  under  section  15  of  the  act  of  January  21,  1903.  C.  1414-^-E, 
May  29, 1908. 

XI  M.  Upon  consideration  of  the  question  of  whether  or  not  an 
officer  of  the  State  militia,  who  is  more  than  64  years  of  age,  can 
draw  pay  for  his  services  it  was  held,  that  the  Congress  has  expressed 
its  legislative  will  to  the  effect  that  an  officer  ceases  to  be  able, 
after  he  is  64  years  of  age,  to  encounter  the  hardships  and  vicissi- 
tudes of  active  military  service  in  the  field.  Also  held,  that  the  depart- 
ment is  not  obliged  to  compensate  persons  who  are  not  able-bodied, 
and  who  are  disqualified  by  reason  of  age  or  other  physical  disa- 
bility, from  rendering  efficient  service  in  connection  with  the  admin- 
istration of  camps  of  instruction  or  maneuvers.     Also  held,  that 

1  XV  Comp.  Dec,  15. 

2  XII  Comp.  Dec,  522. 


X  Comp.  Dec,  18.    Longevity  pay  not  allowed. 


734  MILITIA  XI   N. 

the  War  Department  may  describe  classes  of  disabled  persons  to 
whom  payment  shall  not  be  made  out  of  funds  accrumg  to  the 
States  m  the  operation  of  section  1661,  R.  S.,  or  out  of  funds  pro- 
vided by  Congress  to  defray  expenses  of  detachments  of  the  Organ- 
ized Militia,  which,  pursuant  to  the  invitation  of  the  department, 
takepart  in  joint  camps  of  instruction  and  maneuvers.^  C.  I4I4S-G, 
Apr.  11,  1910;  I49II,  Mar.  7,  1911. 

XI  N.  The  act  of  June  22,  1906  (34  Stat.  449),  makes  provision 
in  favor  of  the  militia  for  the  promotion  of  rifle  practice.  Held, 
that  the  appropriation  covers  the  pay  of  men  as  '^ pitmen/'  ''mark- 
ers," ''caretakers/'  etc.,^  for  work  done  on  ranges  built  and  hereto- 
fore maintained  by  a  State  on  leased  ground  with  money  appro- 
priated from  the  treasury  of  the  State.  C.  20168,  Aug.  8,  1906. 
A  State  furnished  markers,  pitmen,  etc.,  for  the  conipetition  at 
Camp  Perry  in  1907,  and  submitted  a  request  to  the  War  Depart- 
ment for  reimbursement.  Held,  that  the  States  which  sent  teams 
to  Camp  Perry  could  contribute  from  their  apportionment  under 
section  1661,  R.  S.,  as  amended,  and  that  after  all  had  done  so, 
the  remainder  would  represent  the  amount  properly  chargeable  to 
the  United  States,  which  can  be  paid  out  of  the  Army  appropriation. 
G.  14.148-D,  Dec.  5,  1907. 

XI  O.  A  regiment  of  Organized  Militia  participated  in  joint  maneu- 
vers at  Chickamauga  Park,  Ga.,  and  was  mustered  for  14  days  as 
time  consumed  in  going  from  and  returning  to  its  regimental  head- 
(juarters.  The  Second  Battalion  consumed  four  days  in  addition,  as 
its  home  station  is  different  from  the  regimental  headquarters.  Held, 
that  if  the  members  of  the  Second  Battalion  were  mustered  for  pay 
by  a  Regular  officer  for  the  period  of  time  consumed  in  returning 
to  their  home  station,  such  muster  would  constitute  a  basis  for 
payment  for  the  four  days'  travel.^     C.  lJf.l4^-H,  Sept.  6,  1910. 

XI  P.  A  member  of  a  State  rifle  team,^  which  team  had  partici- 
pated in  the  national  match,  was  taken  sick  while  enroute  home, 
and  was  delayed  in  hospital  for  a  period  of  time.  Held,  that  he 
was  not  entitled  to  pay  during  the  time  of  his  illness  and  up  to  and 
including  the  date  of  his  arrival  at  his  home,  as  the  law  limits  the 
right  to  pay,  etc.,  to  the  period  of  time  in  which  the  militia  are  en- 
gaged in  "actual  field  or  camp  service  of  instruction."  C.  I4148- 
D,  Oct.  U,  1907. 

XI  Q.  A  soldier  of  the  Organized  Militia  of  a  State  participated 
in  a  camp  for  instruction  under  section  14  of  the  act  of  January  21, 
1903,  and  died  before  signing  the  roll.  No  demand  has  been  made 
by  the  legal  representatives  of  the  estate  for  the  pay.  Held,  that  the 
act  of  June  30,  1906  (34  Stat.  750),  vests  no  jurisdiction  in  the  dis- 
bursing officer  of  the  Army  to  make  payment  to  the  heirs  of  such 
decedent.5     C.  I4I48-B,  Oct.  8,  1906. 

^  See  22  Op.  Atty.  Gen.,  176. 

2  See  XIV  Comp.  Dec,  631.  Employment  of  members  of  militia  as  civilians  at 
target  ranges  and  encampments. 

3  See  act  of  June  12,  1906  (34  Stat.  249). 

*  Pay  at  State  camp  of  rifle  practice  and  at  national  match  (X  Comp.  Dec,  477). 
fi  X  Comp.  Dec,  635. 


MILITIA   XII  A.  735 

XII  A.  The  act  of  March  2,  1907  (34  Stat.  1175)/  directs  that 
rifles  of  new  types  and  ammunition  therefor,  when  adopted  for  the 
Regular  Army,  shall  be  furnished  to  the  Organized  Militia.  Held, 
that  this  statute  is  mandatory  in  terms,  and  vests  no  discretion  in 
the  Secretary  of  War  in  respect  to  the  several  incidents  of  issue  and 
exchange  which  are  therein  directed  to  be  made.  C.  l^A^S,  Apr., 
1908.  Held,  that  the  exchange  of  ammunition  suited  to  the  old  type 
rifle  must  be  at  the  expense  of  the  United  States,  in  conformity  to 
the  requirements  of  section  13  of  the  act  of  January  21,  1903  (32 
Stat.  777).  C.  14455,  Feb.  and  Apr.,  1908.  Held,  that  section  13 
of  the  act  of  January  21,  1903,  has  been  already  executed  and  for 
that  reason  has  become  functus  officio  in  that  it  is  not  sufficient 
authority  to  warrant  the  department  in  rearming  the  militia  without 
cost  to  the  appropriation  under  section  1661,  R.  S.  C.  144^5,  Oct., 
1906.  Held,  tnat  the  number  of  magazine  arms  to  be  issued  to  a 
particular  State  or  Territory  under  section  13  of  the  act  of  January 
21,  1903,  will  be  determined  by  the  strength  of  its  Organized  Militia 
as  authorized  by  the  act  of  January  21,  1903,  upon  which  date  the 
militia  law  became  effective.  C.  14^S,  July  13,  1903.  Held,  that 
the  expense  of  issue  or  exchange  of  small  arms  and  equipment  under 
section  13  of  the  act  of  Januaiy  21,  1903,  is  chargeable  against  the 
appropriation  carried  under  that  section,  but  it  was  not  contemplated 
that  the  value  of  the  articles  issued  or  exchanged  should  be  so  charged. 
C.  14455,  Apr.  28,  1903,  and  Sept.  27, 1905.  Held,  that  under  section 
13  of  the  act  of  January  21,  1903,  and  the  act  of  March  2,  1907,  the 
Secretary  of  War  is  required  to  receive  from  a  State  ammunition 
which  had  been  purchased  by  the  State  from  State  funds,  and 
which  was  fitted  to  a  rifle  of  an  old  model,  which  had  been  exchanged 
under  authority  of  the  act  of  March  2,  1907,  and  to  issue  in  exchange 
therefor,  round  for  round,  ammunition  suitable  for  the  new  type 
of  small  arm  which  had  been  adopted  for  the  Regular  Army  and 
issued  to  the  State.  C.  14455,  Apr.  30,  1908.  Held,  that  the 
issue  of  small  arms  to  a  military  company  which  is  not  a  part  of  the 
Organized  Militia  of  the  State  is  not  authorized  under  section  13  of 
the  act  of  Jauuary  21,  1903.  C.  I4I48-A,  Dec.  18,  1905.  Held,  that 
the  expenses  of  hauling  the  arms  to  be  issued  to  a  State  under  section 
13  of  the  act  of  January  21,  1905,  and  of  hauling  those  to  be  returned 
to  the  United  States,  between  the  railway  depot  or  nearest  steam- 
boat dock  and  the  State  storehouse,  are  to  be  paid  by  the  United 
States  from  the  appropriations  therein  made,  and  the  arms  to  be 
returned  to  the  United  States  are  to  be  accepted  bv  the  United  States 
where  they  are.     C.  I4I48-E,  Mar.  24,  and  Apr.  7,  1908. 

*  The  act  of  Mar.  2,  1907,  provides  that:  "It  shall  be  the  duty  of  the  Secretary  of 
War,  whenever  a  new  type  of  small  arm  shall  have  been  adopted  for  the  use  of  the 
Regular  Army,  and  when  a  sufficient  quantity  of  such  arms  shall  have  been  manu- 
factured to  constitute,  in  his  discretion,  an  adequate  reserve  for  the  armament  of  any 
Regular  or  Volunteer  forces  that  it  may  be  found  necessary  to  raise  in  case  of  war, 
to  cause  the  Organized  Militia  of  the  United  States  to  be  furnished  with  small  arms 
of  the  type  so  adopted,  with  bayonets  and  the  necessary  accouterments  and  equip- 
ments, including  ammunition  therefor:  Provided,  That  such  issues  shall  be  made  in 
the  manner  provided  in  section  thirteen  of  the  act  approved  January  twenty-first, 
nineteen  hundred  and  three,  and  entitled  'An  act  to  promote  the  efficiency  of  the 
militia,  and  for  other  purposes. ' "    (34  Stat.  1174.) 


736        *  MILITIA  XII   B. 

The  act  of  March  2,  1903  (32  Stat.  942),  appropriates  $2,000,000 
for  the  purpose  of  furnishing  the  necessary  articles  requisite  to  fully 
arm,^  equip,  and  supply  the  Organized  Militia  of  the  several  States, 
Territories,  and  the  District  of  Columbia,  with  the  same  armament 
and  equipment  as  are  now  prescribed  for  the  Regular  Army.  Held, 
that  as  $2,000,000  is  not  sufficient  for  that  purpose,  a  method  of  dis- 
tribution similar  to  an  allotment  will  have  to  be  resorted  to,  and  in 
making  the  portion  which  can  be  assigned,  the  number  of  Organized 
Militia  in  existence  on  January  21,  1903,  will  determine  the  proportion 
to  which  each  State  and  Territory  is  entitled  for  the  use  of  its  Organ- 
ized Militia.     C.  1U55,  June  8,  1903. 

XII  B.  Upon  request  for  an  opinion  as  to  whether  or  not  ammu- 
nition can  be  issued  under  section  21  of  the  act  of  January  21,  1903 
(32  Stat.  779),  to  troops  engaged  in  maneuvers,  lield,  that  instruction 
in  target  practice  is  an  essential  condition  to  the  free  issue  of  ammu- 
nition to  the  national  guard  under  section  21  of  the  act  of  January 
21,  1903,  and  that  therefore  it  can  not  be  issued  free  to  be  fired  away 
in  maneuvers,  although  some  incidental  instruction  in  small-arms 
firing  may  be  imparted.  G.  14791,  Nov.  20,  1903,  June  14,  1904,  and 
Aug.  10,  1907.  Held,  that  small-arms'  ammunition  can  not  be  sup- 
plied to  the  Organized  Militia  for  maneuvers  from  the  appropriation 
of  $2,000,000  carried  by  the  current  Army  appropriation  act  of  March 
2,  1903  (32  Stat.  942),  for  the  purpose  or  arming,  equipping,  and 
supplying  the  Organized  Militia  with  the  same  armanent  and  equip- 
ment as  are  now  provided  for  the  Regular  Army  and  that  the  words 
"armament  and  equipment'^  in  that  act  should  be  construed  as  in- 
cluding ammunition.  C.  14791,  Aug.  18,  and  Nov.  21,  1903.  Also, 
lield,  that  the  cost  of  ammunition  furnished  the  Organized  Militia  for 
joint  maneuvers  will  constitute  a  charge  against  any  amount  standing 
to  the  credit  of  the  State  under  section  1661  R.  S.  G.  14791,  Nov. 
20,  1903,  and  June  14,  1904-    Upon  a  request  from  a  State  for  a  sup- 

f)ly  of  seacoast  artillery  ammunition  for  the  use  of  the  Heavy  Artil- 
ery  during  its  approaching  term  of  duty  of  instruction  in  one  of  the 
forts  in  New  York  Harbor,  lield,  that  funds  made  available  in  the  for- 
tification bill,  when  not  set  apart  for  a  purpose  inconsistent  ^vith  such 
use,  may  lawfully  be  expended  for  that  purpose.  The  cost  of  such 
ammunition  may  also  be  accounted  for  by  charging.it  against  the 
State's  allotment  under  section  1661  R.  S.,  with  the  governor's  con- 
sent as  expressed  in  a  proper  requisition  therefor.  G.  14791,  June 
11,  1903. 

XIII  A.  The  Constitution  gives  to  Congress  the  power  "to  provide 
for  organizing,  arming,  and  disciplining  the  militia,"  but  vests  in  that 
body  no  authority  to  prescribe  its  uniform,  which  authority  was  left 
to  the  States.  Held,  however,  that  it  is  within  the  power  of  Congress 
in  making  gratuitous  issues  of  uniform  clothing  to  the  militia  to 
impose  conditions  in  connection  with  such  issues  and  to  provide  that 
any  distinctive  marks  or  designations  which  are  used  on  the  uniforms 
of  the  Regular  Army,  such  as  the  coat  of  arms  of  the  United  States, 
shall  not  be  used,  or  shall  appear  in  a  modified  form  on  such  uniforms 
as  may  be  worn  b}^  the  Organized  Mlitia  to  whom  they  are  issued. 
Such  power,  however,  pertains  to  Congress,  and  without  legislative 
authority  can  not  be  exercised  by  the  Executive.  C.  14368,  Mar, 
and  June,  1903,  and  Aug.,  1906;  I4148-F,  Oct.  13,  1908. 


MILITIA  XIII  B.  737 

XIII B.  Campaign  badges  constitute  stores  and  supplies  which  are 
supplied  to  the  Army  within  the  meaning  of  section  17  of  the  act  of 
January  21,  1903  (32  Stat.  778).  Held,  that  as  such,  they  may  be 
issued  to  the  governors  of  the  several  States  for  the  use  of  their 
Organized  Militia  as  part  of  the  uniform.  C.  I4148-F,  Oct,  13,  1908; 
23839,  Oct  26,  1908,  and  Dec.  2,  1908.  Held,  that  the  medals  fur- 
nished to  members  of  the  military  establishment  for  proficiency  in 
small-arms  practice  are  procured  out  of  the  funds  appropriated  for 
the  Regular  Army  and  can  not  be  furnished  to  a  cadet  battalion  at 
a  State  university  wliich  was  not  a  part  of  the  Organized  Militia  of 
the  State.     C.  14148-0,  Dec.  28, 1907. 

XIV  A.  Penalty  envelopes  can  not  lawfully  be  supplied  to  State 
or  Territorial  authorities  for  discretionary  use,  but  Tield,  that  if  official 
information  is  called  for  by  the  War  Department,  respecting  the 
militia,  their  use  would  be  lawful  in  carrying  the  reply.  C.  6419, 
May,  1899;  12272,  Mar.,  1902.  Held,  that  as  the  adjutants  general 
of  the  different  States  in  1898  were  aiding  the  War  Department  in 
raising  and  recruiting  the  volunteer  branch  of  the  United  States 
Army,  they  were  entitled  to  use  War  Dej)artment  penalty  envelopes 
in  that  work,  being  personally  liable  criminally  for  any  improper  use 
made  of  such  envelopes.  U.  4610,  July,  1898;  6173,  Apr.,  1899. 
Held,  that  the  adjutants  general  of  the  States,  Territories,  and 
the  District  of  Columbia  are  entitled  to  use  penalty  envelopes  in 
making  the  reports  and  returns  to  the  Secretary  of  War  required  by 
section  12  of  the  militia  act  of  January  21,  1903  (32  Stat.  776),  and 
in  the  correspondence  regarding  them;  but  that  as  the  militia  remains 
State  militia,  and  as,  with  certain  exceptions,  the  officers  thereof  are 
not  ''officers  of  the  United  States  Government,''  they  would  not  be 
entitled  to  use  penalty  envelopes  in  correspondence  relating  to  the 
organization  and  equipment  of  the  militia,  as  such  correspondence 
can  not  be  considered  as  ''relating  exclusively  to  the  public  business 
of  the  Government."  ^  C.  14192,  Feb.  26  and  July  28,  1903;  12272, 
Mar.  22,  1902;  15183,  Aug.  31,  1903;  17336,  Jan.  3,  1905.  But 
held,  that  an  adjutant  general  would  not  be  entitled  to  a  more 
extensive  use  of  the  penalty  envelope  than  is  indicated  above. 
And  lield,  that  he  would  not  be  entitled  to  use  penalty  envelopes  in 
correspondence  with  officers  of  the  National  Guard,  as  neither  he 
nor  they  are  ''officers  of  the  United  States  Government"  within  the 
meaning  of  the  act  of  July  5,  1884  (23  Stat.  158).  G.  14192,  July, 
1903.  Held,  that  in  his  capacity  as  agent  of  the  Quartermaster's 
Department,  a  State  quartermaster  general  may  use  penalty  envelopes 
in  his  official  correspondence.  C.  I4148-F,  July,  1908.  Held,  that 
a  quartermaster  general  of  a  State  is  authorized  to  use  penalty 
envelopes  for  correspondence  with  officers  of  the  National  Guard  of 
the  State,  and  with  the  chief  quartermaster  of  the  department  on 
business  pertaining  strictly  to  transportation  accounts  in  connection 
with  transportation  of  the  National  Guard  of  the  State  to  and  from 
the  camp  at  Chickamauga  Park,  where  it  participated  in  maneuvers 
with  the  Regular  Army.  C.  14192,  Nov.,  1906.  Held,  that  State 
disbursing  officers  may  use  penalty  envelopes  for  their  correspond- 

1  Sec.  3  of  the  act  of  July  5,  1884  (23  Stat.  158).  See  also  act  of  Mar.  3,  1877  (19 
Stat.  355),  and  Cir.  1,  A.  G.  O.,  Jan.  11,  1892. 

31106°— 12 47 


738  MLITIA  XIV  B. 

ence  with  the  War  Department  on  official  business.  C.  141^8,  Bee, 
1908;  15183,  Aug.,  1903.  A  disbursing  officer  may  also  use  penalty 
envelopes  in  making  payments  provided  for  on  rolls  which  were  trans- 
mitted to  the  War  Department  for  approval.  But  Jield,  that  he  is 
not  authorized  to  use  free  registration  for  such  letters,  or  for  letters 
sent  to  the  War  Department.  C.  17336,  Jan.,  1905.  Held,  that 
penalty  envelopes  could  not  be  furnished  to  a  bank  which  desired  to 
use  them  for  the  purpose  of  inclosing  blank  check  books  when  they 
might  be  ordered  by  a  State  disbursing  officer.  C.  6542,  June,  1899. 
Held,  that  each  person  using  the  penalty  envelope  must  decide  for 
himself  his  right  to  do  so,  having  in  mind  his  criminal  liability  for  a 
misuse  thereof.     C.  7351,  Nov.,  1899. 

The  militia  of  the  District  of  Columbia  is  not  placed  under  the  con- 
trol of  the  District  government.  It  is  exclusively  under  the  control 
of  the  National  Government.  The  President  commissions  all  its 
officers  and  is  its  Commander  in  Chief.  If  the  officers  of  the  District 
Militia  are,  therefore,  officers  of  the  United  States,  and  if  official 
matters  relating  to  it  are  matters  relating  exclusively  to  the  busi- 
ness of  the  Government,^  held,  that  there  can  be  no  objection 
to  the  use  of  penalty  envelopes  in  the  transaction  of  its  busi- 
ness. These,  however,  are  matters  which  the  Secretary  of  War 
is  without  authority  to  decide,  except  to  the  extent  of  de- 
termining whether  or  not  penalty  envelopes  shall  be  issued  on 
requisition  therefor.  Questions  relating  to  their  use  are  for  the 
consideration  of  the  Post  Office  Department  in  the  execution  of  the 
postal  laws,  and,  finally,  for  the  courts,  in  prosecutions  instituted 
for  violations  of  those  laws.  It  is  clear,  however,  that  penalty 
envelopes  may  be  issued  for  making  the  returns  required  by  section 
12  of  the  militia  act  of  January  21,  1903  (32  Stat.  776).  Recom- 
mended, therefore,  that  penalty  envelopes  be  furnished  without 
deciding  the  question  as  to  the  scope  of  the  authority  for  their  use. 
C.  12272,  Mar.  22,  1902;  U192,  Feb.  26  and  July  28,  1903;  15183, 
Aug.  31,  1903;  17336,  Jan.  3,  1905. 

XIV  B.  Telegrams  were  sent  by  militia  officers  to  the  War  Depart- 
ment. Held,  that  the  cost  thereof  should  be  paid  from  the  allotment 
to  the  State  from  section  1661,  R.  S.,  and  not  from  appropriation  by 
Congress  for  carrying  on  the  business  of  the  General  Government. 
C.  14148,  Nov.  7,  1903. 

XIV  C.  The  disbursing  officer  of  a  State  National  Guard  commu- 
nicated direct  with  the  Secretary  of  War  on  matters  pertaining  to 
his  duties  as  an  officer  of  the  National  Guard  of  the  State.  Held, 
that  such  correspondence  of  a  disbursing  officer  with  the  War 
Department  should  be  through  the  adjutant  general  of  the  State,  as 
required  by  Circular  No.  62,  series  1906,  War  Department.  C. 
14148-D,  Aug.,  1907. 

XV.  The  commanding  general  of  a  Department,  during  the  period 
of  his  exclusive  occupation  of  a  State  maneuver  camp  ground,  is 
barred  by  the  act  of  February  2,  1901  (31  Stat.  758),  from  permitting 
the  sale  of  any  intoxicating  liquors  thereon,  and  may  protect  his 
exclusive  occupation  of  said  camp  site  b;^  ejecting  any  persons 
coming  thereon  and  attempting  to  engage  in  such  sales;  hutJield, 
that  he  should  not  interfere  with  any  of  the  canteens  established 

»  See  acta  of  Mar.  3, 1877,  and  July  5,  1884. 


MILITIA  XVI  A.  739 

and  maintained  for  the  sale  of  ''spirituous  liquors,  wine,  ale,  or 
beer"  under  permission  of  the  autliorities  of  the  State,  and  upon 
the  premises  occupied  by  National  Guard  organizations  of  that  State 
as  sites  for  their  camps,  during  the  period  of  joint  encampment. 
C.  19983,  June  29,  1906. 

XVI  A.  In  view  of  the  legislation  embodied  in  the  act  of  March  1, 
1889  (25  Stat.,  772),  none  of  which  is  inconsistent  or  in  conflict  with 
the  act  of  January  21,  1903  (32  Stat.  775),  it  was  held;  (1)  that  the 
active  miUtia  of  the  District  of  Columbia,  otherwise  known  as  the 
National  Guard  of  the  District  of  Columbia,  constitutes  the  '^Organ- 
ized Militia"  of  the  District  within  the  meaning  of  section  3  of  the 
act  of  January  21,  1903;  (2)  that  the  brigadier  general  commanding 
and  the  brigade  staff  should  be  commissioned  as  officers  of  the 
"Militia  of  the  District  of  Columbia,"  in  conformity  to  the  require- 
ments of  sections  7  and  8  of  the  act  of  March  1,  1889  (25  Stat.  773); 
and  (3)  that  the  officers  of  the  organizations  of  the  active  militia 
''should  be  commissioned  as  officers  of  the  National  Guard  of  the 
District  of  Columbia,"  in  conformity  to  the  requirements  of  section 
10  of  the  same  enactment.     C.  1^946,  July,  1903. 

XVI  B.  By  section  18  of  the  act  of  March  1,  1889  (25  Stat.  774), 
the  commanding  general  of  the  militia  of  the  District  of  Columbia  is 
authorized  to  disband  any  company  of  the  National  Guard  or  con- 
solidate it  with  any  other  company  in  a  case  where,  for  a  period  of 
not  less  than  90  days,  it  shall  have  contained  less  than  the  minimum 
number  of  enlisted  men  prescribed  by  the  act,  or,  upon  a  duly  ordered 
inspection,  shall  be  found  to  have  fallen  below  a  proper  standard  of 
efficiency,  and  to  grant  honorable  discharges  to  the  supernumerary 
officers  and  noncommissioned  officers  produced  by  such  consolidation. 
C.  18032,  May,  1905.  But  TieU  that  the  authority  thus  conferred 
does  not  extend  to  the  Naval  Militia  of  the  District  of  Columbia, 
estabHshed  by  the  act  of  May  11,  1898  (30  Stat.  404).  G.  19218, 
Feb.  1906.  The  commanding  general.  National  Guard,  District  of 
Columbia,  disbanded  a  regiment  of  the  National  Guard  of  the  Dis- 
trict and  issued  an  honorable  discharge  to  the  colonel  of  the  First 
Regiment'.  Held,  that  his  action  was  legal  and  recommendation 
made  that  it  be  sanctioned  by  the  Secretary  of  War.  C.  18032, 
May  26,  1905. 

XVI  C.  Section  20  of  the  act  of  February  18,  1909  (35  Stat.  631), 
provides,  inter  alia,  for  the  retirement  of  commissioned  officers  of 
the  District  of  Columbia  National  Guard  for  physical  disability. 
Held,  that  in  the  absence  of  a  requirement  of  statute  that  the  board 
shall  be  appointed  by  the  President  or  Secretary  of  War,  it  is  within 
the  authority  of  the  commanding  general  of  the  District  National 
Guard  to  appoint  the  medical  board  provided  for  in  that  section. 
C.  19789,  Apr.  12,  1909. 

XVI  D.  Section  11  of  the  act  of  February  18,  1909  (35  Stat.  629), 
vests  considerable  legislative  power  in  the  President  of  the  United 
States.  In  the  exercise  of  that  power  he  issued  regulations  for  the 
National  Guard  of  the  District  of  Columbia.  Held,  that  the  com- 
position of  the  medical  department  of  the  National  Guard  of  the 
District  is  fixed  in  paragraph  8  of  those  regulations.  Also,  held,  that 
an  officer  holding  a  commission  in  one  department  or  organization  of 
the  militia  or  National  Guard  may  be  commissioned  in  another  with 


740  MILITIA  XVI  E. 

the  same  grade  and  date  of  rank  now  held  under  section  76  of  the 
act  of  February  18,  1909  (35  Stat.  636).  C.  19789,  July,  1909.  A 
captain  of  a  company  of  the  District  of  Columbia  National  Guard 
resigned  his  commission  on  November  15,  1899,  and  the  same  date 
was  commissioned  a  captain  and  inspector  of  rifle  practice,  the  duties 
of  which  he  entered  upon  at  once;  but  he  did  not  accept  the  com- 
mission as  inspector  of  rifle  practice  until  December  28,  1899.  Held, 
that  his  service  may  be  regarded  as  continuous  within  the  meaning 
of  the  clauses  of  the  act  of  February  18,  1909,  which  regulates  the 
retirement  of  officers  in  the  National  Guard  of  tne  District  of  Colum- 
bia.    C.  19789,  July  and  Aug.,  1909,  and  July,  1910. 

XVI  E.  Section  49  of  the  act  of  March  1,  1889  (25  Stat.  779),  pro- 
vides that  aU  officers  and  employees  of  the  United  States  and  of  the 
District  of  Columbia  who  are  members  of  the  National  Guard  shall  be 
entitled  to  leave  of  absence  from  their  respective  duties,  without  loss 
of  pay  or  time,  on  all  days  of  any  parade  or  encampment  ordered  or 
authorized  under  the  provisions  of  this  act.^  Held,  that  the  above 
section  (49)  is  limited  to  the  National  Guard  of  the  District  of  Colum- 
bia. 0.  14-873,  June  27,  1903.  Held,  that  a  messenger  in  the  Record 
and  Pension  Office,  who,  as  a  member  of  the  District  National  Guard, 
performed  one  dajr  of  duty  on  the  rifle  range,  pursuant  to  proper 
orders,  was  not  entitled  to  pay  for  that  day  as  a  messenger,  as  he  was 
not  engaged  in  actual  parade  proper,  or  in  '  ^  encampment."  ^  0.  2694, 
Oct.  29, 1896;  7242,  Nov.  3,  1899;^  7418,  Dec.  I4,  1899.  Upon  request 
by  a  clerk  in  the  Record  and  Pension  Office  for  a  leave  of  absence  with- 
out pay  from  date  of  muster  in  as  major  ot  volunteers  to  date  of  dis- 
charge from  such  service,  it  was  held,  that  a  clerk  who  is  a  member  of 
the  National  Guard  of  the  District  of  Columbia  can  not  be  given  an 
indefinite  leave  of  absence  in  order  to  accept  a  volunteer  commission. 
O.  4129,  May  16,  1898.  The  act  of  July  1,  1902  (32  Stat.  615), 
declared  that  the  act  of  March  1,  1889,  shaU  be  construed  as  covering 
aU  days  of  service  which  the  National  Guard  or  any  portion  thereof 
may  be  ordered  to  perform  by  the  commanding  general.  District  of 
Columbia,  as  leave  of  absence  from  duty.  Held,  that  the  act  was  not 
retroactive.  G.  13650,  Nov.  29,  1902.  If  District  troops  are  paid 
out  of  funds  obtained  under  section  14  of  the  act  of  January  21,  1903 
(32  Stat.  777),  they  are  not  entitled  for  the  same  period  to  the  pay 
provided  in  the  District  appropriation  bill.  Held,  that  as  Govern- 
ment employees  receive  their  pay  without  deduction  during  the  period 
of  the  encampment  under  section  49  of  the  act  of  March  1,  1889  (25 
Stat.  779),  they  are  not  entitled  to  receive  pay  under  section  14  of  the 
act  of  January  21,  1903.  G.  I4I48,  July  I4,  1903.  Held,  that  the 
act  of  January  21,  1903  (32  Stat.  775),  did  not  repeal  section  49  of  the 
act  of  March  1,  1889,  or  extend  its  operation  to  the  National  Guard 
of  the  States  and  Territories.  G.  14873,  June  7,  1904.  Held,  that 
the  absence  of  employees  in  the  Commissary  Department,  in  order  to 
attend  rifle  and  revolver  matches,  which  were  ordered  by  the  com- 
manding general  of  the  National  Guard  of  the  District  of  Columbia, 
should  not  be  charged  against  any  time  due  them  in  the  operation  of 
the  laws  granting  leaves  of  absence,  and  that  there  should  be  no  re- 
duction of  pay  for  absence  while  so  employed.     G.  13650,  Oct.  9,  1909. 

^  An  inspection  not  a  parade,  etc,  VI  Comp.  Dec,  836. 
2  20  Op.  Atty.  Gen.,  669. 


MILITIA  XVI  F.  741 

XVI  F.  The  act  of  March  1,  1889  (25  Stat.  772),  provides  that  the 
uniform  of  the  National  Guard  of  the  District  of  (Jolumbia  shall  be 
the  same  as  prescribed  and  furnished  to  the  Army  of  the  United 
States.  Held,  that  as  membei-s  of  the  Organized  Militia  of  the  Dis- 
trict of  Columbia,  officers  would  be  entitled  to  receive  campaign 
badges  under  the  same  conditions  as  regulate  their  distribution  to 
officers  of  the  Army,  as  the  campaign  badge  is  part  of  the  uniform. 
G.  17243,  Dec,  1907.  Held,  that  the  above  opinion  had  application 
to  such  members  of  the  National  Guard  as  are  now  in  service.  G. 
17243,  Jan.,  1908.  Held,  that  the  badges  for  enlisted  men  may  law- 
fully be  included  in  issues,  but  the  badges  for  commissioned  officers 
should  be  obtamed  by  purchase.  G.  172^3,  May  23, 1908.  Held, 
that  the  badge  can  not  be  withheld  from  an  enlisted  man  of  the 
National  Guard  of  the  District  of  Columbia,  who  had  served  honor- 
ably during  the  Philippine  campaign  as  an  enlisted  man  of  the  Regu- 
lar Army.  G.  17243,  Mar.  29,  1910,  ^  Held,  that  the  commandmg 
general  of  the  National  Guard  of  the  District  of  Columbia  is  compe- 
tent to  detennine  in  what  case  an  officer  has  rendered  service  in  cam- 
paign as  a  militia  officer  which  is  of  a  character  to  entitle  him  to  wear 
the  distinctive  campaign  badge.     G.  17243,  Apr.,  1909. 

XVI.  G.  An  officer  of  the  National  Guard  of  the  District  of  Columbia 
later  became  an  officer  of  the  United  States  Volunteers.  He  had 
failed  to  accout  for  certain  United  States  property  for  which  he  was 
alleged  to  be  accountable  as  an  officer  of  the  District  National  Guard. 
The  commanding  general  of  the  District  National  Guard  recommended 
stoppage  of  his  pay  as  a  volunteer  officer  to  make  good  his  failure  to 
account  for  public  property.  The  Secretary  of  War  suspended  further 
payment  of  his  volunteer  pay  pending  prompt  action  against  him  by 
the  commanding  general  of  the  District  National  Guard,  under  the 
provisions  of  the  militia  act  of  March  1,  1889  (25  Stat.  775),  particu- 
larly section  33.  Held,  that  if  a  judgment  in  any  case  is  obtained 
which  can  not  be  satisfied,  report  thereof  should  be  promptly  made  to 
the  Secretary  of  War  for  his  action  in  the  premises,  and  that  in  the 
meantime  the  commanding  general  of  the  District  Militia  must  con- 
tinue solely  responsible  to  the  United  States  for  all  United  States 
property  in  the  possession  of  such  mihtia  unless  regularly  relieved 
from  such  responsibihty.  C.  10261,  Aug.  9,  1901;  11559,  Nov.,  1901. 
Held,  that  if  under  the  act  of  March  1,  1889,  the  officer  had  any  prop- 
erty within  the  District,  the  District  Militia  authorities  could  proceed 
against  it,  and  if  he  had  none  within  the  jurisdiction  the  action  could 
abide  his  return;  and  in  any  event,  as  he  denied  having  received  the 
property,  the  War  Department  could  not  on  such  a  showing  grant  the 
commanding  general  of  the  District  Militia  permission  to  drop  the 
United  States  property  from  his  returns.     C.  11559,  Feh.  28,  1902. 

XVI.  H.  As  the  system  of  property  accountability  in  the  National 
Guard  of  the  District  of  Columbia  is,  by  the  act  of  March  1,  1889 
(25  Stat.  774),  as  amended  by  the  act  of  February  18,  1909  (35  Stat. 
629),  closely  assimilated  to  that  prevailing  in  the  Regular  Army,  it 
would  seem  that  the  same,  or  similar  rules  of  evidence,  should  apply 
in  determining  questions  of  property  responsibility,  and  that  the  rules 
so  appfied  should  differ  from  and  require  higher  standards  of  per- 
formance than  are  established  by  law  in  the  States  at  large.  Held, 
that  where  officers  of  the  National  Guard  of  the  District  are  required  to 


742  MILITIA  XVI  I  1. 

give  testimony  concerning  questions  of  property  accountability  they 
may  lawfully  be  permitted  to  give  such  testimony  in  the  form  of  cer- 
tificates similar  in  form  and  character  to  those  required  of  officers  of 
the  Regular  Army  in  similar  circumstances.     C.  17099,  July  28, 1910. 

XVI.  I  1.  The  act  of  March  1,  1889  (25  Stat.  772),  provides  for  the 
organization  of  the  Militia  of  the  District  of  Columbia.  Held,  that 
no  subsequent  legislation  annuls,  affects,  or  invalidates  the  require- 
ment of  section  31  of  that  act,  which  regulates  the  armament,  cloth- 
ing, and  equipment,  or  of  section  57,  which,  during  the  annual 
encampment  or  when  ordered  on  duty  to  aid  the  civil  authorities, 
regulates  the  subsistence  of  the  National  Guard  of  the  District.  0. 
16354,  ^ciy  26,  1904.  Held,  that  forage  and  fuel  can  be  furnished 
the  Nation-al  Guard  of  the  District  of  Columbia  under  section  31  of 
the  above  act  while  in  camp.  Also  held,  that  "  consumable  property" 
continues  to  be  the  property  of  the  United  States  until  it  is  actually 
consumed  by  its  use.^  C.  3239,  May  28,  1897.  Held,  that  Dyer's 
Handbook  of  Artillery  may,  under  the  above  law,  be  issued  to  the 
National  Guard  of  the  District,  as  it  would  come  under  ^^  other  military 
stores  as  may  be  necessary  for  the  proper  training  and  instruction  of 
the  force."  C.  17665,  Mar.  13,  1905.  HeU,  that  under  section  55 
of  the  above  act  such  blank  forms  as  are  needed  for  the  administration 
of  the  National  Guard  of  the  District  may  be  furnished.  C.  16354, 
Nov.  12,  1907.  Held,  that  section  14  of  the  act  of  January  21,  1903 
(32  Stat.  777),  does  not  conflict  with  section  57  of  the  above  act,  and 
that  section  17  of  the  act  of  January  21,  1903,  has  no  connection  with 
section  57  of  the  above  act,  but  simply  operates  to  extend  the  scope 
of  section  1661,  R.  S.     C.  I4148,  July  3,  1903. 

XVI I  2.  The  commanding  general.  National  Guard  of  the  Dis- 
trict of  Columbia,  submitted  a  requisition  for  certain  clothing,  camp 
and  garrison  equipage  for  the  use  of  the  Organized  Militia  under  his 
command.  Held,  that  the  Organized  Militia  of  the  District  of 
Columbia  is  entitled  to  share  in  the  benefits  conferred  by  what  is 
known  as  the  ''two  million  dollar"  clause  of  the  act  of  March  2,  1903 
(32  Stat.  942),  and  the  cost  of  supplies  can  be  charged  against  the 
District's  allotment  under  that  act.  G.  16354,  May  26  and  July  19, 
1904,  and  May  7,  1908. 

XVI I  3.  War  Department  orders  prescribe  the  kinds  of  type- 
writing machines  that  shall  be  purchased  during  the  fiscal  year  1901, 
*'for  the  use  of  the  Army."  Held,  that  that  does  not  prohibit  the 
Quartermaster's  Department  from  issuing  and  charging  to  the 
Militia  of  the  District  a  typewriting  machine  now  on  hand,  which  is 
of  a  different  make.  G.  8580,  July,  1900.  Held,  that  typewriting 
macliines  may  be  issued  to  the  National  Guard  of  the  District  to  the 
same  extent  that  they  are  issued  to  corresponding  organizations  of  the 
Regular  Army  by  the  Quartermaster's  Department  and  their  cost  will 
constitute  a  charge  against  the  allotment  to  the  District  under  sec- 
tion 1661,  R.  S.,  as  amended  by  the  act  of  June  6,  1900  (31  Stat.  662). 
G.  14663,  May  16,  1903. 

XVI 1 4.  The  commanding  general.  District  National  Guard, 
requested  that  furniture  be  furnished  and  charged  against  the  appro- 
priation of  June  6,  1900,  for  arming  and  equipping  the  militia.     Held, 

1  See  III  Comp.  Dec,  632. 


MILITIA  XVI  I  5.  743 

that  the  cost  of  the  articles  requested  can  not  be  charged  to  the 
appropriation  made  by  the  act  of  June  6,  1900  (31  Stat.  662),  but 
must  oe  met  by  the  special  annual  appropriation  which  includes  an 
item  for  ^^furmture."     C.  101S2,  Apr.,  1901. 

XVI  I  5.  The  mai-shal  of  a  G.  A.  11.  parade  requested  the  Secre- 
taiy  of  War  to  authorize  the  commanding  general,  District  National 
Guard,  to  loan  12  sets  of  horse  equipments  for  the  use  of  his  staff. 
Held,  that  the  Secretary  of  War  has  no  authority  to  direct  the  com- 
manding general,  District  Militia,  to  loan  property  of  the  United 
States  in  his  custody.     C.  13885,  Sept.  30 ^  1902. 

XVI  I  6.  Request  for  the  loan  of  a  two-mule  team  with  wagon 
was  made  by  the  National  Guard  of  the  District  of  Columbia  for  use 
in  connection  with  rifle  practice.  Held,  that  while  the  loan  might  be 
authorized  as  being  within  the  spirit  of  the  act  of  March  1,  1889  (25 
Stat.  779),  it  becomes  of  doubtful  propriety  when  considered  in  con- 
nection with  the  restrictive  requirement  of  the  act  of  appropriation 
for  the  support  of  the  Army,  and  in  view  of  the  express  provision  for 
incidental  expenses  of  the  National  Guard  of  the  District  of  Columbia 
which  is  made  in  the  act  of  appropriation  for  the  support  of  the 
District  government.     G.  181 13 j  June  6,  1905. 

XVI  J.  A  sergeant  in  a  company  of  the  District  National  Guard 
was  elected  to  the  position  of  second  lieutenant,  examined  as  the 
law  requires  and  found  competent  and  otherwise  qualified,  which 
fact  was  duly  certified  to  the  commanding  general.  He  was  then 
reduced  to  the  ranks  and  then  subsequently  honorably  discharged  by 
order  of  the  commanding  general,  ''in  the  interests  of  the  service 
under  section  28  of  the  act  of  March  1,  1889,  from  which  action  he 
appealed.  Held,  that  there  is  no  appeal  from  his  discharge  by  the 
commanding  general  of  the  District  Militia,  and  that  it  can  not  be 
recalled  or  set  aside.  C.  3398,  Aug.  3,  1897.  An  enlisted  man  was 
dishonorably  discharged  from  the  District  Militia  in  pursuance  of 
the  approved  sentence  of  a  court-martial.  He  requested  that  an 
honorable  discharge  be  substituted  for  the  dishonorable  one.  Held, 
that  the  sentence  is  executed  and  relief  can  not  be  afforded.  C. 
10715,  June  24,  1901. 

XVII  A.  Section  23  of  the  act  of  January  21,  1903  (32  Stat.  779), 
provides  that  certain  examinations  he  held  of  persons  having  spe- 
cific quahfications.  One  of  the  qualifications  is  that  the  candidate 
''shall  have  served  in  the  Regular  Army  of  the  United  States,  in 
any  of  the  volunteer  forces  of  the  United  States,  or  in  the  Organized 
Militia  of  any  State  or  Territory  or  District  of  Columbia,  or  who, 
being  a  citizen  of  the  United  States,  shall  have  attended  or  pursued 
a  regular  course  of  instruction  in  any  military  school  or  college  of  the 
United  States  Arm3^"  Held,  that  the  purpose  of  the  statute  is  to 
secure  a  list  of  persons  specially  qualified  to  hold  commissions  in  any 
future  volunteer  force  and,  therefore,  the  act  should  be  liberally 
construed.  C.  Ij-l^^-E,  Mar.  11,  1908.  Held,  that  it  was  obviously 
within  the  meaning  of  the  act  of  January  21,  1903,  that  members  of 
the  Organized  Militia  should  be  considered  as  proper  candidates  for 
the  list  of  eligibles  for  volunteer  commissions  provided  for  in  section 
23  of  that  act.  C.  I4I48-A,  Aug.  26,  1904.  Held,  that  the  entry  of 
the  name  of  an  appHcant  on  the  list  of  eligibles  provided  in  the  above 


744  MLITIA   XVIII  A. 

section  does  not  confer  military  rank.  C.  I4.I48-F,  Oct.  29,  1908. 
Held,  that  the  current  appropriations  for  the  support  of  the  Army  are 
apphcable  to  the  purpose  of  paying  to  ehgibles  for  volunteer  com- 
missions who  attend  military  schools,  the  same  allowances  and 
commutation  as  provided  in  the  act  of  January  21,  1903,  for  the 
officers  of  the  Organized  Mihtia.     C.  14U8,Oct.  2,  1903. 

XVIII  A.  As  no  legislation  of  Congress  imposes  duties  upon  the 
War  Department  or  any  of  its  bureaus  in  connection  with  the  Naval 
Militia,  and  as  arms  for  its  use  are  expressly  provided  for  in  the 
current  appropriation  for  the  Navy,  lield,  that  if  small  arms  of  the 
type  used  by  the  Regular  Army  be  furnished  it  would  constitute  a 
charge  against  the  appropriation  for  the  support  of  the  Navy.  C. 
lJt.694,  May  22,  1903.  The  War  Department  has  no  statutory  rela- 
tions with  the  Naval  Militia,  which  does  not  constitute  a  part  of  the 
Organized  Militia  of  the  United  States  within  the  scope  of  the  act  of 
Januar}^  21,  1903  (32  Stat.  775),  as  no  portion  of  it  has  ever  partici- 
pated in  the  apportionment  of  the  appropriationprovided  by  section 
1661  R.  S.,  as  amended.  Held,  that  the  War  Department  is 
without  authority  to  sell  stores  to  a  State  for  the  use  of  its  Naval 
Mihtia,  and  that  the  act  of  January  21,  1903,  conveys  no  authority 
for  the  exchange  of  arms  issued  to  the  State  by  the  Navy  Depart- 
ment for  the  use  of  its  Naval  Militia.     C.  14148-^,  Jan.  6,  1904. 

The  Naval  Militia  has  received  legislative  recognition  in  several 
acts  of  appropriation  for  the  Navy  and  other  enactments  of  Congress, 
all  of  which  are  executed  by  the  Navy  Department.  In  the  expendi- 
ture of  these  appropriations  and  in  the  training  of  the  Naval  Militia, 
the  War  Department  is  without  jurisdiction  and  has  never  attempted 
to  assert  or  exercise  control.  It  is  a  well  settled  priniciple  in  the 
accounting  of  the  Government  that  where  one  appropriation  is 
available  for  a  specific  object  no  other  appropriation  is  available  for 
the  same  work  unless  there  is  something  in  the  second  appropriation 
to  indicate  an  intention  upon  the  part  of  Congress  to  make  it  availa- 
ble in  addition  to  the  appropriation  for  the  specific  object.^  Held, 
that  the  Naval  Militia  is,  therefore,  not  a  part  of  the  Organized 
Militia  of  the  State  under  section  14  of  the  act  of  January  21,  1903.^ 
C,  14148-A,  Oct.  18,  1904'  The  right  to  participate  in  the  national 
competition,  which  is  provided  for  in  the  act  of  April  23,  1904  (33 
Stat.,  274),  is  restricted  to  the  forces  therein  named;  and,  as  the 
Naval  Militia  is  not  among  the  forces  expressly  mentioned  in  that 
enactment  as  entitled  to  compete  for  prizes  and  trophies  therein 
provided  for,  Tield,  that  members  of  the  Naval  Militia  as  such,  should 
be  excluded  from  the  competition.^  C.  14694,  Mar.  30,  1906,  and 
June  15,  1907. 

XVIII  B.  The  naval  battalion.  National  Guard,  District  of 
Columbia,*  engaged  in  a  10-day's  practice  cruise,  in  connection  with 

iJComp.  Dec,  418. 

2  See  XIII  Comp.  Dec,  673,  ofl&cers  of  the  Navy  on  duty  on  United  States  ships 
loaned  to  a  State  for  use  of  its  Naval  Militia  under  act  of  Aug.  3,  1894  (28  Stat.  219), 
are  entitled  to  sea  pay. 

3  See  (26  Op.  Atty.  Gen.,  303)  to  the  contrary.  In  which  opinion  the  Secretary  of 
War  did  not  concur,  he  holding  that  the  opinion  can  not  authorize  the  department  to 
pay  for  any  of  the  expenses  of  the  team  from  the  naval  brigade,  or  to  furnish  its  sup- 
plies, or  to  do  anything  except  to  allow  it  to  take  part  in  the  contest  and  receive  the 
benefit,  if  it  wins,  of  the  trophy  which  the  War  Department  will  pay  for.  C.  14694i 
Aug.  16,  1907, 


MILITIA  XIX  A.  745 

joint  maneuvers  with  the  Regular  Army,  under  section  15  of  the  act  of 
January  21,  1903  (32  Stat.  776).  Held,  that  it  was  not  entitled  to 
pay  from  the  appropriation  ^'encampment  of  the  Organized  Militia 
with  troops  of  the  Regular  Armv,  1907  and  1908"  as  Congress  in  that 
legislation  had  in  view  solely  that  portion  of  the  militia  assimilated 
to  the  Army,  and  did  not  contemplate  payment  to  the  Naval  Mihtia. 
Held,  also,  that  it  was  not  entitled  to  pay  under  section  14  of  the  act 
of  January  21,  1903,  as  the  maneuvers  come  under  section  15  of  the 
act,  and,  also  lield  that  the  battalion  is  entitled  to  pay  out  of  moneys 
appropriated  by  Congress  for  the  District  in  the  act  of  March  2,  1907 
(34  Stat.  1154),  wliich  specifically  provides  for  practice  cruises.^ 
C.  5326,  July,  1907. 

XIX  A.  Request  was  made  for  an  opinion  as  to  whether  or  not 
an  honorable .  discharge  from  the  Organized  Mihtia  entitles  an  ahen 
to  citizenship  on  a  showing  of  a  residence  of  one  year  in  the  United 
States.  Held,  that  service  in  the  mihtia  is  not  regarded  as  service 
'4n  the  Armies  of  the  United  States,  with  the  Regular  or  Volunteer 
forces"  witliin  the  meaning  of  section  2166,  R.  S.,  relating  to  the 
naturahzation  of  ahens.     C.  16818,  Aug.,  1904;  HU8-G,  June,  1910. 

XX  A.  The  act  of  March  2,  1895  (28  Stat.  788),  authorizes  the 
Secretary  of  War  to  furnish  to  the  governor  of  any  State,  at  the 
expense  of  the  State,  a  transcript  of  the  history  of  any  regiment  or 
company  ''of  his  State."  Held  that  this  act  applies  to  State  troops 
organized,  officered,  etc.,  by  the  States  to  enter  as  volunteers  into  the 
service  of  the  United  States  and  also  to  the  Organized  Militia  of  the 
States  that  were  mustered  into  the  service  of  the  United  States,  but 
not  to  those  organizations  that  were  distinctively  United  States 
organizations  and  with  which  the  States  had  nothing  to  do.  The  fact 
that  the  United  States  necessarily  went  into  the  States  to  recruit  and 
raise  the  latter  organizations  does  not  make  them  regiments  and 
companies  of  the  State  within  the  meaniug  of  the  act  cited.  C.  3894, 
Feb.,  1898.^ 

XXI.  Prior  to  January,  1903,  it  was  contrary  to  the  practice  of 
the  Judge  Advocate  General's  Office,  War  Department,  to  discuss 
matters  relating  to  the  mihtary  administration  of  the  States.  C. 
685,  Nov.  24,  1894;  1287,  Apr.  20,  1895;  3720,  Bee.  9  and  21,  1897, 
and  Sept.  10,  1907;  5638,  Jan.  10,  1899;  6345,  May  1,  1899;  10103, 
Mar.  29,  1901;  21594,  May  28,  1907.  Held,  that  p)urely  State  mat- 
ters relative  to  the  State  mihtia  should  be  settled  in  the  State.  0. 
4065,  Apr.  27,  1898.  Held,  that  the  propriety  of  the  War  Depart- 
ment passing  on  the  sufficiency  of  a  State  law  with  regard  to  its 
complying  with  the  condition  in  section  3  of  the  act  of  January  21, 
1903  (32  Stat.  775),  as  amended  by  the  act  of  May  27,  1908  (35  Stat. 
400),  that  the  organization  of  the  National  Guard  must  conform  to 
that  of  the  Regular  or  Volunteer  Army  of  the  United  States  is  not 
free  from  doubt.^     C.  I4148-C,  June  15, 17,  and  18,  Sept.  16  and  26, 

^  For  question  of  purchasing  clothing  from  moneys  received  from  fines  see  XV  Comp. 
Dec,  466.  Chief  boatswain  of  Navy,  on  duty  without  troops  in  connection  with 
vessels  loaned  to  a  State  is  entitled  to  commutation  of  quarters  (XII  Comp.  Dec,  713). 

2  26  Op.  Atty.  Gen.,  303. 

^  Note:  Observe  the  fact  that  this  opinion  is  limited  to  the  sufficiency  of  the  State 
law,  and  does  not  touch  the  question  of  the  jurisdiction  of  the  War  Department  to 
pass  on  the  question  of  the  conformity  of  the  organization  of  the  national  guard  of  a 
State  to  the  requirements  of  the  law  above  cited. 


746  MILITIA — MISTAKE. 

1907,  and  Sept.  16  and  29,  1908.  Upon  presentation  of  a  contem- 
plated miKtia  law  for  a  State,  with  request  for  information  as  to  its 
sufficiency  to  meet  the  requirements  of  section  3  of  the  act  of  Jan- 
uary 21,  1903,  it  was  lield  that  the  Judge  Advocate  General  of  the 
Army  may  advise  as  to  the  sufficiency  for  that  purpose  of  the  pro- 
posed law.     C.  14148-H,  Dec.  30,  1910. 

CROSS   REFERENCE. 

Abuse  of  civilians See  Articles  of  War  LIV  F  2. 

Blank  forms See  Appropriations  XXXVI  D. 

Campaign  badges  to See  Insignia  of  merit  III  B  1. 

Command  of,  at  joint  encampment See  Articles  of  War  CXXII  B. 

Fraudulent  enlistment  of See  Enlistment  I  A  9  e  (1). 

Muster-in See  Volunteer  Army  II  B  2  to  3. 

Regular  officer  holding  commission See  Office  IV  A  2  d  (1). 

Retired  soldier  may  hold  office  in See  Retirement  II  D  1. 

Sale  or  exchange  of  property  to See  Public  property  I  A  4  a. 

Service  in See  Retirement  I  C  1  e. 

Status  after  called  forth See  Volunteer  Army  I. 

Volunteers  not  part  of See  Volunteer  Army  I  B. 

MINES. 

On  military  reservations See  Public  property  I  A  1;  III  B. 

MINOR. 

Avien See  Alien  II. 

Candidate  for  West  Point See  Army  I  D  1  a  (2)  (a)  to  (6). 

Desertion See  Desertion  V  B  7. 

Discharge See  Discharge  XII  A  to  D  2. 

Enlistment SeeENLisTMENTlA9f  (5);(6);g(2);Clb;d. 

Rearrest  of  discharged  minor See  Command  V  A  6  b  (1)  (6). 

Residence See  Residence. 

MINORITY  REPORT. 

Court  of  inquiry See  Articles  of  War  CXIX  B. 

Retiring  board See  Retirement  I  B  1  d  (3) ;  6. 

MISAPPROPRIATION. 

See  Articles  of  War  LX  A  3;  D-  LXI  B  4. 
.See  War  I  C  6c  (3)  (c/). 
Public  money See  Discipline  II  D  16  a. 

MISCONDUCT. 


Captured  property See  War  I  C  6  c  (3)  (d). 

Public  money See  Discipline  II  D 


Act  of  Mar.  3,  1909  {35  Stat.  735) See  Gratuity  I  B  to  II. 

Retired  soldier See  Retirement  II  B  3  to  4;  F  3. 

Retirement See  Retirement  I  B  3  c. 

Rule  as  to  honest  and  faithful  service See  Enlistment  I  D  3  c  (18). 

MISBEHAVIOR  BEFORE  THE  ENEMY. 

See  Articles  of  War  XLII  A. 
Desertion  I  E. 

MISTAKE. 

Bidder  released '. See  Contracts  IX  to  X. 


MITIGATION" — MUSTER  IN.  747 

MITIGATION. 

See  Articles  of  War  CXII  A  to  E. 

After  disapproval See  Discipline  XIV  E  9  b  (1). 

Grounds  for See  Discipline  IV  C  2  a;  XIV  E  9  a  (16); 

d(l)(a);(6);  XV  F  to  G. 
Pardon  VI. 

Of  sentence See  Discharge  XVI  C  2. 

Penitentiary  sentence See  Discipline  XIV  H  3. 

Status,  how  affected See  Discipline  XVII  A  4  f. 

MORAL  OBLIQUITY. 

Examining  board  lacks  jurisdiction See  Retirement  I  B  6  a  to  b. 

Retiring  hoard  lacks  jurisdiction See  Retirement  I  B  1  b  (1)  (a). 

MORNING  REPORTS. 

Evidential  value See  Desertion  IX  B. 

Discipline  XI  A  17  a  (2)  (6)  [2]. 

MORPHINE. 

Prescribed  by  surgeon See  Retirement  I  B  6  f  (1). 

MOTION. 
To  strike  out See  Discipline  II  D  17  a;  H  2;  IX  F  2  a;  3  a. 

MOTIVE. 

Embezzlement » See  Articles  of  War  LXII  C  2. 

Misappropriation See  Discipline  II  D  16  a. 

MOUNT. 

Suitable See  Pay  and  allowances  I  B  7  to  8 

Forage See  Pay  and  allowances  II  A  2  d  to  e. 

MURDER. 

By  soldier See  Articles  of  War  LIX  L  2. 

Charge  by  civilian See  Articles  of  War  LIX  G. 

Jurisdiction  over  by  general  court-martial. .  .See  Articles  of  War  LXII  A. 

Of  prisoner  of  war See  War  I  C  11  a. 

Of  superior  officer See  Articles  of  War  XXI  E  1. 

MUSICIAN. 

Army  in  competition  with  civil See  Army  Bands. 

Retired  soldier See  Retirement  II  E  2  a. 

MUSTER  AND  PAY  ROLL. 

Evidential  value See  Desertion  IX  C. 

Discharge  II  B  4. 

Discipline  XI  A  17  a  (1);  (2)  (a)  [1] 
[e]  [A]. 
Purpose  of. See  Absence  II  B  8;  8  b. 

MUSTER  IN. 

See  Volunteer  Army  II  to  III. 

Drafted  men See  Enlistment  II  A. 

Evidence  of. .See  Discipline  XI A  17  a  (1);  (2)  (a)  [1]  [<j]. 

Pay  bejore See  Pay  and  allowances  I  A  1  a. 

Volunteer  officers See  Office  V  A  5  b  to  c. 


748  MUSTER   OUT — NAME   I  A. 

MUSTER  OUT. 

See  Volunteer  Army  IV  to  V. 

Date  of See  Discharge  XIII  C. 

Ejffect  on  status See  Discipline  VIII  I  1. 

Evidence  oj See  Discipline  XI  A  17  a  (1). 

Jurisdiction  of  military,  ends See  Discipline  III  B  2  b. 

Notice  oj See  Discharge  XIV  D  3. 

Organizations See  Discharge  II  B  4;  III  G;  XIII  F. 

MUTINY. 

See  Articles  of  War  XXII  A;  B;  XCVII 
A. 

Muster  out  for See  Discharge  II  B  4. 

Punishment See  Discipline  XIV  E  9  d  (1)  (6). 

NAME. 

I.  NO  LEGAL  OBJECTION  TO  DROPPING— 

A.  Middle  Name Page  748 

B.  "Junior." 

n.  RESUMPTION  OF  CORRECT  NAME. 
m.  PROCEDURE  TO  CHANGE  LEGAL  NAME. 
IV.  AUTHORITY  TO  CHANGE  NAME  ON  ROLLS. 

I  A.  Held,  that  an  officer  can  drop  his  middle  initial  in  his  official 
signature.!     G.  9066,  Oct.  5,  1900. 

1  B.  Held,  that  there  is  no  legal  objection  to  an  officer's  dropping 
the  ''Junior"  from  his  name  during  the  life  of  his  father,  as  the  father 
is  a  civilian  and  there  is  no  chance  of  confusion  in  their  names. 
C.  3617,  Nov.  4,  1897. 

II.  All  officer  upon  entrance  to  West  Point  gave  the  name  of  his 
uncle,  with  whom  he  had  lived.  Later  he  applied  for  permission  to  re- 
sume the  name  of  his  father.  Held,  that  upon  satisfactory  evidence 
being  presented  as  to  the  correctness  of  the  name  presented  as  that 
of  his  father,  the  War  Department  could  change  the  records  so  as  to 
give  him  his  legal  surname,  namely,  that  of  his  father.  G.  8705, 
Dec.  4,  1897. 

III.  A  young  man  after  appointment  to  West  Point  requested 
authority  to  change  his  name.  Held,  that  he  should  apply  to  the 
proper  State  court  at  his  domicile  for  authority  to  change  his  name, 
and  should  upon  reporting  at  West  Point  show  that  the  name  borne 
on  his  appointment  had  been  legally  changed.  G.  18897,  June  8, 
1911. 

IV.  A  soldier  with  an  unpronounceable  name  requested  authority 
to  adopt  a  new  name.  Held,  that  the  Secretary  of  War  was  without 
authority  to  authorize  a  change  of  the  legal  name,  as  that  can  be 
done  only  in  the  manner  provided  by  State  statute  at  his  domicile, 
or  by  his  acquiring  a  new  name  by  ''reputation,  general  usage,  or 
habit."  2  Held  further,  that  outside  of  the  inconvenience  attending 
the  notation  of  the  change  of  the  name  on  the  records,  etc.,  there  was 
no  objection  to  the  Secretary  of  War  authorizing  the  change,  and 
that  a  simple  notation  on  the  rolls  that  the  Secretary  of  War  had 

^See  Bouvier's  Law  Dictionary  under  "name,*'  and  2  Op.  Atty.  Gen.,  332;  3 
id..  467. 

2  Enc.  of  Law,  vol.  16,  p.  118. 


NAME NAVIGABUE   WATEES  :   SYNOPSIS.  749 

authorized  the  change  would  be  sufficient.  C.  3848,  Feb.  8,  1898; 
9228,  Nov.  3,  1900;  11507,  Nov.  6,  1901;  14165,  Feb.  16,  1903;  18609, 
Sept.  25,  1905. 

CROSS  REFERENCE. 

Assumed See  Discharge  XIV  B  1. 

Change  of  by  cadet See  Army  I  D  4. 

Charges See  Discipline  II  D  8  a;  b;  H  2. 

Company See  Contracts  I  B  1. 

Corporation  on  seal See  Bonds  IV  G. 

Omusion  of  surety's,  in  bond See  Bonds  IMS. 

Variance  in See  Discipline  XIV  E  9  a  (3). 

NATIONAL  CEMETERY. 

See  Public  property  IV  A  to  B. 

Superintendent See  Retirement  D  4. 

Tax  II  A. 

NATIONAL  HOME  FOR  DISABLED  VOLUNTEERS. 

See  Soldiers'  Home  II. 
NATURALIZATION. 

See  Alien  II;  III. 
NAVAL  CADET. 

See  Retirement  I  A  1  c;  C  1  b. 
NAVAL  MILITIA. 

See  Militia  XVIII  to  XIX. 
NAVIGABLE  WATERS.^ 

I.  LEGISLATION  RESPECTING  OBSTRUCTIONS Page  752 

A.  What  are  Navigable  Waters  of  United  States? Page  753 

1.  Highway  for  commerce  with  other  States,  etc Page  754 

a.  May  include  artificial  channels. 

(1)  Erie  and  Atlantic  Basins. 

(2)  Bayonne  Canal,  N.  J. 

b.  Includes  improved  natural  waterway Page  755 

2.  May  include  floatable  streams. 

B.  Extent  of  Control. 

1.  Limited  to  interstate,  etc.,  commerce Page  756 

n.  TITLE  TO  SOIL  UNDER. 

A.  In  State  or  Riparian  Owner. 

1.  Islands  in  Missouri  River Page  757 

2.  Islands  in  St.  Clair  Flats,  Mich. 

B.  Titles  Subject  to  Servitude  op  United  States. 

1.  In  hands  of  grantee  from  State Page  758 

2.  In  hands  of  lessee  of  oyster  beds. 

3.  Riparian  rights  subject  to  same Page  759 

a.  Protection  of  banks. 

C.  Subject  to  Servitude  for  Defensive  Purposes Page  760 

D.  Protection  of  Improvements. 

1.  Title  remains  in  owner. 

a.  Right  of  use  in  owner Page  761 

1  Prepared  by  Mr.  Lewis  W.  Call,  Chief  Clerk  and  Solicitor,  Oflace  of  the  Judge 
Advocate  General,  U.  S.  A. 


750  NAVIGABLE  WATERS:   SYNOPSIS. 

in.  BRIDGES,  ETC.,  CONSTRUCTION  OF— LEGISLATION. 

A.  Approval  Under  State  Authority Page  762 

1.  Jurisdiction  of  State  and  "War  Department  distinguished. 

2.  State  authority  should  appear Page  763 

a.  Plans  must  conform  to  State  authority. 

b.  Where  bridge,  etc.,  would  stop  navigation. 

c.  Where  structure  is  above  point  of  navigability. 

3.  Of  plans  for  rebuilding  bridge. 

B.  Approval  Under  Special  Statute. 

1.  Where  no  approval  required Page  764 

2.  Approval  of  plans  of  existing  bridge. 

3.  Statute  requirements  as  to  plans,  etc. 

a.  Evidence  required  by  War  Department Page  765 

(1)  Copy  of  charter. 

(2)  Acceptance  of  act Page  766 

b.  Minimum  length  of  span. 

c.  Where  approved  plans  departed  from. 

4.  Where  authority  is  implied. 

5.  Time  of  commencement  or  completion. 

a.  Secretary  of  War  can  not  extend Page  767 

C.  Assignment  of  Franchise. 

1.  Must  be  authorized. 

a.  Not  implied  in  use  of  words  "successors  and  assigns." 

b.  Incident  to  transfer  of  property. 

D.  Rock  Island  Bridge Page  768 

E.  Merchants  Bridge — Forfeiture. 

F.  Temporary  Structure  on  Ice. 
IV.  BRIDGES:    ALTERATION  OF. 

A.  Notice  to  Specify  Changes Page  769 

1.  Hearing  as  to  changes  and  time Page  770 

2.  Must  be  existing  obstruction. 

3.  Future  needs  to  be  considered. 

B.  Notice  Should  be  Precise. 

C.  New  Notice  Under  Repealing  Statute. 

D.  Where  Receiver  Appointed Page  771 

E.  Where  Plans  Were  Approved. 

F.  Approval  of  Plans  in  Lieu  of  Notice. 

G.  Enforcement  of  Alterations Page  772 

H.  Closing  of  Draw  During  Repair. 

V.  PERMITS  FOR  STRUCTURES,  ETC.,  EFFECT  OF. 

A.  Kind  of  Permit. 

B.  Delegation  of  Authority Page  773 

C.  Matters  Considered — Jurisdiction. 

1.  As  to  structures  in  District  of  Columbia Page  774 

D.  Kinds  of  Structures — Water  Main. 

1.  Siphon. 

2.  Fish  weir. 

3.  Booms. 

E.  Deposits  in  Harbors,  etc. 

1.  Beyond  3-mile  limit Page  775 

2.  In  "roadstead"  opposite  Chicago. 

3.  In  New  York  Harbor. 

F.  Harvesting  Ice. 

G.  Necessary  for  Removal  of  Dam. 

H.  For  Diversion  from  Niagara  River. 


NAVIGABLE   WATERS:   SYNOPSIS.  751 

VI.  HARBOR  LINES:  GENERAL  COKSIDERATIONS Page  776 

A.  Established  for  Interstate,  Not  Local  Traffic. 

1.  Where  located Page  777 

2.  Relocation  of. 

B.  Where  None  Located,  State  May  Establish. 
Vn.  REMOVAL  OF  SUNKEN  WRECKS,  ETC. 

A.  Delegation  of  Authority Page  778 

B.  Notice  to  Owners. 

1.  Right  of  owners  to  remove. 

2.  Obligation  where  result  of  negligence Page  779 

3.  No  obligation  where  without  fault. 

C.  When  Not  Abandoned. 

1.  Lien  for  costs. 

2.  Priority  of  liens. 

D.  When  no  Menace  to  General  Navigation Page  780 

Vm.  CANALS:  RULES  FOR  NAVIGATION Page  781 

IX.  JURISDICTION  TO  ENFORCE  THE  STATUTES. 

A.  In  the  Law  Officers  and  Courts. 

1.  Where  draw  closed. 

2.  Against  dumping  in  Lake  Michigan Page  782 

B.  Authority  for  Arrest,  etc. 

C.  Authority  of  Secretary  of  War  to  Order  Removal  of  Obstructions 

IN  General. 
X.  IMPROVEMENTS  OF. 

A.  Execution  of  Appropriations  Not  Discretionary. 

1.  Permissive  words  mandatory Page  783 

2.  Estimates  for. 

3.  Effect  of  proviso  in. 

B.  Under  Engineer  Department. 

1.  Work  civil,  not  military. Page  784 

a.  Pay  of  engineer  officers  on. 

2.  Disbursement  of  appropriation  by. 

C.  May  be  by  Contract  or  Otherwise Page  785 

1.  Contractor  may  obstruct  navigation. 

D.  Purchase  of  Land,  etc.,  for. 

1.  Purchase  of  flowage  rights. 

a.  Easement  not  revocable Page  786 

2.  Lease  of  land  for. 

3.  Government  liable  for  property  taken. 

4.  Officer  liable  for  trespass. 

E.  Under  License  from  Owner. 

1.  Withdrawal  of  grant  or  license  after  expenditure. 

F.  Sale  of  Land,  etc Page  787 

1.  Warranty  deed. 

2.  Delegation  of  authority Page  788 

3.  Property  not  military  stores. 

4.  Abandoned  property,  sale  or  use  of. 

G.  Lease  of  Land  Acquired  for Page  789 

XI.  RIVER  COMMISSIONS. 

A.  Mississippi  Commission:  Authority  op. 

1.  Disposal  of  maps  by. 

B.  Missouri  Commission:  Duties  of. 

C.  Traveling  Expenses  of  Members. 

D.  Subsistence  of  Guests. 


752  NAVIGABLE   WATERS  I. 

I.  The  power  of  Congress  to  legislate,  under  the  commerce  clause 
of  the  Constitution,  for  the  prevention  and  removal  of  physical  obstruc- 
tions to  navigation  was  not  exercised  otherwise  than  by  way  of 
improvements  carried  on  by  the  United  States,  and  except  for  an 
occasional  act  of  Congress  authorizing  the  erection  of  a  bridge  across 
a  navigable  river,  and  except  for  the  general  legislation  regarding 
bridges  over  the  Ohio  River  (act  of  Dec.  17,  1872,  17  Stat.  398,  as 
amended  Feb.  14,  1883,  22  Stat.  414),  until  the  act  of  July  5,  1884 
(23  Stat.  148),  section  8  of  which  made  it  the  duty  of  the  Sec- 
retary of  War,  on  satisfactory  proof  that  any  bridge  then  or  there- 
after constructed  "over  any  navigable  water  of  the  United  States, 
under  authority  of  the  United  States  or  of  any  State  or  Territory, 
is  an  obstruction  to  the  free  navigation  of  such  water,  by  reason  of 
difficulty  in  passing  the  draw  opening  or  raft  span  of  said  bridge," 
to  require  the  company  or  persons  owning  or  operating  the  bridge  to 
provide  the  same  with  such  aids  to  navigation  as  he  may  specify  in 
the  order.  This  was  followed  by  more  explicit  legislation  in  the 
act  of  August  11,  1888  (25  Stat.  400),  section  9  of  which  empowered  the 
Secretary  of  War  to  give  notice  to  the  persons  or  corporations  owning 
or  controlling  any  obstructive  bridge  to  ''so  alter  the  same  as  to 
render  navigation  through  or  under  it  free,  easy,  and  unobstructed;" 
and  section  10  made  the  failure  to  remove  the  bridge  or  to  alter  the 
same,  after  receiving  such  notice,  punishable  by  a  fine  of  $500  per 
month.  The  jurisdiction  of  Congress  was  more  fully  exercised  in  the 
act  of  September  19, 1890  (26  Stat.  426).  Sections  4  and  5  amended 
sections  9  and  10  of  the  act  of  1888  so  as  to  make  them  more  defi- 
nite, and  increased  the  penalty  for  failure  to  comply  with  the  notice 
of  the  Secretary  of  War — requiring,  also,  that  the  parties  interested  be 
given  reasonable  opportunity  to  be  heard  before  the  issue  of  the  notice. 
Section  6  prohibited  the  deposit  of  refuse  matter  where  it  would  tend 
to  obstruct  navigation.  Section  ^7  (as  amended  by  sec.  3  of  the  act 
of  July  13,  1892)  (27  Stat.  88)  prohibited  the  erection  of  wharves, 
dams,  breakwaters,  or  other  structures  or  excavation  or  filling,  in 
navigable  waters  of  the  United  States,  without  the  permission  of  the 
Secretary  of  War;  precluded  States  from  authorizmg  the  construc- 
tion of  bridges  over  navigable  waters  which  are  not  wholly  within 
their  territorial  limits;  and  provided  that  it  should  not  be  lawful  to 
commence  the  construction  of  a  bridge  over  a  navigable  water  of 
the  United  States,  under  an  act  of  a  State  legislature,  ''until  the 
location  and  plans  of  such  bridge"  have  "been  submitted  to  and 
approved  by  the  Secretary  of  War."  Section  8  ^  authorized  the 
removal  of  wrecks  of  vessels;  section  9  prohibited  injury  to  works 
for  the  improvement  of  navigation;  section  10  forbade  the  location 
or  continuance  of  obstructions  to  navigation;  and  section  12  author- 
ized the  establishment  of  harbor  lines.  The  prior  legislation  on  the 
subject  was  amended  and  consolidated  by  the^  act  of  March  3,  1899 
(30  Stat.  1121);  and  forms  sections  9  to  20,  inclusive,  of  that  act. 
Section  9  relates  to  bridges,  dams,  or  causeways;  section  10  relates 
to  other  structures  and  to  excavating  or  filling;  section  11  relates  to 
the  establishment  of  harbor  lines;  section  12  prescribes  a  penalty  for 
violations  of  sections  9,  10,  and  11 ;  section  13  prohibits  the  deposit  of 
refuse  matter  where  it  will  injure  navigation;  section  14  forbids  injury 
to  works  for  the  improvement  of  navigation;  section  15  relates  to 


NAVIGABLE  WATERS  I.  753 

obstructions  caused  hj  anchoring  vessels  or  by  sunken  vessels,  timber, 
etc.;  section  16  provides  a  penalty  for  violations  of  sections  13,  14, 
and  15;  section  17  provides  for  the  enforcement  of  the  provisions  of 
sections  9  to  16,  inclusive,  by  the  Department  of  Justice;  section  18 
relates  to  the  alteration  of  obstructive  bridges;  and  sections  19  and 
20  relate  to  the  removal  of  sunken  or  grounded  vessels,  etc.  By  the 
act  of  March  23,  1906  (34  Stat.  84),  general  provisions  were  enacted 
to  govern  as  to  grants  by  Congress  to  ' '  any  persons  to  construct  and 
mamtain  a  bridge  across  or  over  any  navigable  water  of  the  United 
States" — the  act  requiring,  inter  aha,  the  approval  of  the  plans  by 
the  Chief  of  Engineers  and  the  Secretary  of  War;  and  by  the  act 
of  June  21,  1906  (34  Stat.  386),  as  amended  June  23,  1910  (36  Stat. 
593),  similar  legislation  was  enacted  to  govern  in  respect  to  dams 
which  Congress  might  thereafter  authorize  over  navigable  waters. 

1  A.  Those  rivers  must  be  regarded  as  public  navigable  rivers  in 
law  which  are  navigable  in  fact.  And  they  are  navigable  in  fact  when 
they  are  used  or  are  susceptible  of  being  used  in  their  ordinary,  condi- 
tion as  highways  for  commerce  over  whicli  trade  and  travel  are  or  may 
be  conducted  in  the  customary  modes  of  trade  and  travel  on  water. 
And  they  constitute  navigable  waters  of  the  United  States,  in  contra- 
distinction from  the  navigable  waters  of  the  States,  when  they  form 
in  their  ordinary  condition  by  themselves  or  by  uniting  with  other 
waters  a  continued  highway  over  which  commerce  is  or  may  be  carried 
on  with  other  States  or  foreign  countries  in  the  customary  mode  in 
which  such  commerce  is  conducted  by  water.^  The  true  test  of  the 
navigability  of  a  stream  does  not  depend  on  the  mode  by  which  com- 
merce is  or  may  be  conducted,  nor  the  difficulties  attending  navigation. 
It  would  be  a  narrow  rule  to  hold  that  in  this  country  unless  a  river 
was  capable  of  being  navigated  by  steam  or  sail  vessels,  it  could  not 
be  treated  as  a  public  highway.  The  capabihty  of  use  by  the  public 
for  purposes  of  transportation  and  commerce  affords  the  true  criterion 
of  the  navigability  of  a  river,  rather  than  the  extent  or  manner  of  that 
use.  If  it  be  capable  in  its  natural  state  of  being  used  for  purposes  of 
commerce,  no  matter  in  what  mode  the  commerce  may  be  conducted, 
it  is  navigable  in  fact  and  becomes  in  law  a  public  river  or  highway .^ 
Applying  these  tests  to  a  tributary  of  the  Mississippi  River  m  Ten- 
nessee, it  was  held  that  the  same  was  a  navigable  water  of  the  United 
States ;  that  the  fact  that  all  acts  of  the  State  legislature  declaring  a 
certain  part  of  the  river  navigable  had  been  repealed  did  not  affect 
the  question  of  the  navigability  of  that  part  so  far  as  the  laws  of  the 
United  States  were  concerned.  For  example,  the  duty  of  the  Secre- 
tary of  War,  under  section  4,  act  of  1890,  with  respect  to  unreasonable 
obstructions  to  navigation  over  the  part  referred  to,  would  be  unaf- 
fected by  the  repeal  of  the  State  laws.  C.  1611,  July,  1895;  1709, 
Sept.,  1895;  15029,  July  30,  1903;  17989,  May  6,  1905. 

^  See  the  definition  of  the  term,  "navigable  waters  of  the  United  States,"  in  the 
Daniel  Ball,  10  Wall.,  557;  Ex  parte  Boyer,  109  U.  S.,  629.  See  also  Chisholm  v. 
Caines,  67  Fed,  Rep.,  285;  St.  Anthony  Falls  Water  Power  Co.  v.  Water  Commissioners, 
168  U.  S.,  349;  Leovy  v.  U.  S.,  177,  id.,  621.  Statutes  passed  by  the  States  for  their 
own  uses,  declaring  small  streams  navigable,  do  not  make  them  so  within  the  Con- 
stitution and  laws  of  the  United  States.  Duluth  Lumber  Co.  v.  St.  Louis  Boom  & 
Improvement  Co.,  17  Fed.  Rep.,  419. 

2  The  Montello,  20  Wall.,  430. 

31106°— 12 48 


754  NAVIGABLE   WATERS   I  A  1. 

I  A  1.  A  river  is  a  navigable  water  of  the  United  States  when  ii 
forms  by  itself  or  by  its  connection  with  other  waters  a  continued  high- 
way over  which  commerce  is  or  may  be  carried  on  with  other  States 
or  foreign  countries  in  the  customary  modes  in  which  such  commerce 
is  conducted  by  water.  If  a  river  is  not  itself  a  highway  for  com- 
merce with  other  States  or  foreign  countries,  or  does  not  form  such 
highway  by  its  connection  with  other  waters,  and  is  only  navigable 
between  different  places  within  the  State,  then  it  is  not  a  navigable 
water  of  the  United  States  but  only  a  navigable  water  of  the  State.* 
So  Jield,  that  Devil's  Lake  being  wholly  within  the  State  of  North 
Dakota  and  having  no  visible  outlet  was  not  a  navigable  water  of 
the  United  States  and  therefore  not  subject  to  the  laws  of  Congress 
relating  to  such  waters.  A  bridge  may  be  built  across  this  waterway 
under  the  laws  of  the  State  without  reference  to  the  Federal  Govern- 
ment unless  the  bridge  is  to  be  located  on  Federal  property.  C.  7760, 
Mar.,  1900;  11394,  Oct  18,  1901;  189 J,7,  Bee.  21,  1906. 

Held,,  also,  that  the  French  Broad  River,  which  has  two  navigable 
stretches,  one  in  North  Carolina  and  the  other  in  Tennessee,  sepa- 
rated by  a  long  stretch  of  river  not  navigable  within  the  accepted 
definition  of  that  term,  could  not  be  regarded  as  a  navigable  water  of 
the  United  States;  and  that  to  make  it  such  there  must  be  a  con- 
tinuity of  navigation  or  of  navigable  capacity.     C.  24811,  Apr.  23, 1909. 

I  A  1  a.  The  engineer  officers  of  the  Army,  in  opening  a  channel  in  a 
navigable  river,  for  the  improvement  of  which  appropriation  had  been 
made  by  Congress,  were  assisted  and  cooperated  with  by  a  local 
transportation  company  which  owned  the  land  adjoining  the  channel 
which  it  was  using  for  its  own  boats.  Upon  the  completion  of  the 
improvement  this  company  proceeded  to  levy  a  toll  on  other  vessels 
passing  through  the  channel.  Held  that  such  toll  was  an  obstruction 
to  navigation  and  could  not  legally  be  enforced,  the  fact  that  the  com- 
pany owned  the  land  giving  it  no  exclusive  right  to  the  free  use  of 
navigable  waters  of  the  United  States.     R.  60,  638,  July,  1886. 

I  A  1  a  (1).  The  Erie  and  Atlantic  Basins,  in  New  York  Harbor, 
are  private  property,  but  they  are  also  navigable  waters  of  the 
United  States;  and  the  owners  of  the  soil  under  the  water  hold  the 
title  subject  to  the  rights  of  the  public  to  navigate  such  waters,  and 
are  therefore  not  empowered  to  fill  in  the  basins  and  deprive  the 
public  of  their  use.  Moreover,  they  are  waters  over  which  the 
United  States  has  expressly  assumed  jurisdiction  in  prohibiting,  by 
the  act  of  June  29,  1888,  the  dumping  of  deposits  '4n  the  tidal  waters 
of  the  harbor  of  New  York,  or  its  adjacent  or  tributary  waters,  within 
the  limits  which  shall  be  prescribed  by  the  supervisor  of  the  harbor." 
Held,  that  the  subsequent  establishment,  Under  the  act  of  August  11, 
1888,  s.  12,  of  harbor  lines  in  that  harbor  outside  these  basins  did  not 
oust  this  jurisdiction,  but  that  the  act  of  June  29,  1888,  was  stiU  in 
force.    P.  60,  366,  Nov.,  1891;  G.  21290,  Mar.14,  1907. 

I  A  1  a  (2).  Hdd,  that  the  Bayonne  Canal,  in  Hudson  County,  N. 
J.,  was  navigable  water  of  the  United  States  subject  to  the  admiralty 
jurisdiction  of  the  United  States  district  court  and  to  the  laws  of  Con- 
gress for  the  enrollment  and  licensing  of  vessels  and  otherwise  regu- 

»  The  Montello,  11  Wall.,  411;  20  Op.  Atty.  Gen.,  101. 


NAVIGABLE  WATERS  I  A  1  b.  755 

lating  commerce,  and  could  not  therefore  legally  be  obstructed  by 
filling  up  or  damming,  by  a  railroad  company,  without  the  permission 
of  the  Secretary  of  War  under  the  act  of  September  19,  1890.     P.  44?  • 
152,  Dec,  1890;  0.  16231,  May  4,  190^;  18728,  Oct.  16,  1905, 

I  A  1  b.  On  the  question  of  whether  the  Bayou  St.  John  at  New 
Orleans,  La.,  is  a  navigable  water  of  the  United  States  under  the 
control  of  the  Secretary  of  War,  held,  that  as  the  bayou  was  improved 
by  the  Carondolet  Canal  &  Navigation  Co.  and  its  privies  in  title, 
under  contract  with  the  State,  there  could  be  no  question  that  the 
corporation  had  a  valid  right  to  charge  tolls  as  authorized  by  its 
contract;  that  such  right  could  not  be  divested  without  compensa- 
tion to  the  company  for  the  franchise  as  well  as  for  such  property  as 
it  might  have  acquired  incident  to  the  improvement;^  that  a  river 
does  not  become  a  canal  from  having  had  its  navigation  improved 
by  artificial  means  ;2  and  that  the  bayou,  as  improved,  was  a  navi- 
gable water  of  the  United  States,  subject  to  the  powers  of  Congress 
to  regulate  conmaerce  and  to  the  general  legislation  of  Congress  for 
the  protection  of  navigable  waters  from  obstructions.  U.  18982, 
Dec.  23,  1905. 

I  A  2.  Held,  that  it  was  doubtful  whether  '^floatable"  streams,  i.  e., 
streams  capable  only  of  being  used  for  floating  sawlogs,  timber,  etc., 
not  being  navigable  in  a  general  sense,  were  included  in  the  term 
''navigable  waters  of  the  United  States,"  as  employed  in  statutes  pro- 
viding that  dams  shall  not  be  constructed  in  such  waters  without  the 
permission  of  the  Secretary  of  War.  But  held  that  it  was  clearly 
competent  for  Congress,  under  the  commerce  clause  of  the  Constitu- 
tion, to  exercise  control  over  such  streams  as  highways  of  interstate 
commerce.  P.  63,  375,  Feb.,  1894;  G.  12905,  Sept.  29,  1902;  21290, 
Mar.  14,  1907  (p.  15).       ^ 

1  B.  Held  that  as  the  withdrawal  of  water  from  the  Rio  Grande  for 
the  purpose  of  irrigation  by  means  of  pumps  had  reached  such  a  stage 
as  to  seriously  impair  its  navigable  capacity,  the  Secretary  of  War 
could  legally  prevent,  not  only  the  installation  of  new  plants  for  the 
withdrawal  of  the  waters  of  this  river,  but  also  the  further  withdrawal 
by  existing  plants;  and  advised  that  notice  be  pubUshed  that  the  War 
Department  regards  further  diversion  of  its  waters  as  a  violation  of 
sections  10  and  12  of  the  act  of  March  3,  1899  (30  Stat.  1151);  that  the 
construction  of  any  additional  works  for  the  purpose  will  not  for  the 
present  be  sanctioned;  and  that  diversion  by  existing  works  be  limi?ted 
so  as  not  to  injuriously  affect  the  navigable  capacity  of  the  river.  C. 
27899,  Nov.  21,1911.  Held  further,  with  reference  to  the  contention 
that  the  withdrawal  of  water  by  means  of  pumps  involves  no  construc- 
tion in  the  stream  such  as  is  forbidden  by  section  10  of  said  act,  that 
the  statute  applies  not  only  to  structures  which  obstruct  navigation 
but  also  to  other  changes  which  '' modify  the  course,  location,  condi- 
tion, or  capacity  of  *  *  *  the  channel  of  any  navigable  water  of 
the  United  States";  and  that  the  withdrawal  of  sufficient  water  to 
affect  the  navigable  capacity  of  a  stream  would  be  within  the  letter 

^  Huse  V.  Glover  (119  U.  S.,  543);  Sands  v.  Manistee  River  Improvement  Co.  (123 
U.  S.,  288);  Monongahela  Navigation  Co.  v.  United  States  (148  U.  S.,  312). 

2  People  V.  Improvement  Co.  (103  111.,  491). 


756  NAVIGABLE   WATERS   I  B  1. 

as  well  as  the  spirit  of  the  prohibition.^  a  27899,  June  27,  1911. 
Held  further  that  the  word  '^  channel/'  sometimes  used  in  a  restricted 
sense  and  sometimes  as  comprising  the  entire  bed  of  a  river,  including 
the  flowing  water,  in  view  of  the  object  and  purpose  of  the  statute  and 
in  the  light  of  the  decision  of  the  Supreme  Court  in  United  States  v. 
Rio  Grande  Irrigation  Co.  (174  U.  S.,  690,  708),  should  be  regarded  as 
here  used  in  the  enlarged  sense.     C.  27899,  June  27,  1911. 

I  B  1.  Held,  with  respect  to  the  authority  of  the  Secretary  of  War 
to  prevent  the  construction  of  a  sewer  outlet  in  the  Hudson  River, 
that  the  navigable  waters  of  the  United  States  are  not  brought  within 
the  exclusive  control  of  Congress  save  in  matters  connected  with 
interstate  and  foreign  commerce ;  that  in  other  respects  all  internal  or 
riparian  waters  are  fully  subject  to  State  control,^  as  in  the  regulation 
or  fisheries,  the  control  of  the  shores,  the  ownership  of  submerged 
lands,  etc.,  so  that  the  control  of  waters  for  drinking  and  sanitary 
purposes,  and  the  regulation  of  the  flow  and  of  the  deposit  of  sewage, 
are  matters  fully  within  the  control  of  the  several  States  as  an  incident 
of  their  police  power,  except  in  so  far  as  concerns  structures  which  ma^ 
obstruct  navigation,  which  must  be  authorized  by  the  Cliief  of  Engi- 
neers and  the  Secretary  of  War  under  section  10  of  the  act  of  March  3, 
1899.     G.  21290,  Mar.  14,  1907. 

II  A.  The  United  States  is  not  the  owner  of  the  soil  of  the  beds  of 
navigable  waters,  nor  of  the  shores  of  tide-waters  below  high-water 
mark,  nor  of  the  shores  of  waters  not  affected  by  the  tide  below  the 
ordinary  water  line  of  the  same,  except  as  it  may  have  become  grantee 
of  such  soil  from  the  State  or  from  individuals.  The  property  in  and 
over  the  beds  and  shores  of  navigable  waters  is  in  general  m  the  State, 
or  in  the  individual  riparian  owner.^  But  under  the  power  to  regulate 
commerce,  Congress  may  assume,  as  it  has  recently  assumed,  the 
power  so  to  regulate  navigation  over  navigable  waters  within  the 
States  as  to  prohibit  its  obstruction  and  to  cause  the  removal  of 
obstructions  thereto,  and  such  power  when  exercised  is  ''conclusive 
of  any  right  to  the  contrary  asserted  under  State  authority."  ^    In 

1  See  U.  S.  V.  Rio  Grande  Irrigation  Co.  (174  U.S.,  690, 708),  where  the  court,  having 
under  consideration  sec.  10  of  the  act  of  Sept.  19, 1890  (26  Stat.  454),  substantially  iden- 
tical, so  far  as  respects  this  question,  with  the  act  of  1899,  held  that  the  withdrawal  of 
water  above  the  point  of  navigation  by  means  of  a  dam  so  as  to  impair  the  navigability 
of  the  river  was  within  the  prohibition  of  the  act,  using  the  following  language  regard- 
ing the  scope  of  the  prohibition:  "It  is  not  a  prohibition  of  any  obstruction  to  the 
navigation,  but  any  obstruction  to  the  navigable  capacity,  and  anything,  wherever 
done  or  however  done,  within  the  limits  of  the  jurisdiction  of  the  United  States  which 
tends  to  destroy  the  navigable  capacity  of  one  of  the  navigable  waters  of  the  United 
States,  is  within  the  terms  of  the  prohibition. " 

2  McCready  v.  Virginia  (94  U.  S.,  391,  396);  Escanaba  v.  Chicago  (107  id.,  678);  Lake 
Shore  &  Michigan  Southern  Ry.  Co.  v.  Ohio  (165  id.,  365);  Cardwell  v.  American 
Bridge  Co.  (113  id.,  205);  Huse  v.  Glover  (119  id.,  543);  Cummings  v.  Chicago  (188  id., 
410,  430). 

3  Pollard  V.  Hagan,  3  Howard,  212;  Barney  v.  Keokuk,  94  U.  S.,337;  Gilman  v. 
Philad.,  3  Wallace,  713;  South  Carolina  v.  Georgia,  93  U.  S.,  4;  6  Opins.  Atty.  Gen., 
172;  7  id.,  314;  16  id.,  479;  Illinois  Cent.  R.  Co.  v.  Illinois,  146  U.  S.,  387;  Shively  v. 
Bowlby,  152  id.,  1;  Scranton  v.  Wheeler,  57  Fed.  Rep.,  803;  Scranton  v.  Wheeler, 
179  U.  S.,  141;  West  Chicago  R.  R.  Co.  v.  Chicago,  201  U.  S.,  506;  Union  Bridge  Co.  v. 
U.  S.,  204  U.  S.,  364. 

*  Wisconsin  v.  Duluth,  96  U.  S.,  379;  U.  S.  v.  City  of  Moline,  82  Fed.  Rep.,  592; 
Leovy  v.  U.  S.,  92  id.,  344;  Leovy  v.  U.  S.,  177  U.  S.,  621. 


NAVIGABLE   WATERS  II   A  1.  757 

exercising  this  power,  it  can  not  divest  rights  of  title  or  occupation  in 
a  State  or  individuals,  but  these  rights  are  left  to  be  enjoyed  as  before, 
subject,  however,  to  the  paramount  public  right  of  freeing  navigation 
from  obstruction  possessed  and  exercised  by  the  United  States 
through  Congress.  In  the  execution  of  the  laws  relating  to  obstruc- 
tions to  navigation  the  Secretary  of  War  has  no  general  authority,  but 
only  such  as  may  have  been  vested  in  him  by  legislation  of  Congress, 
especially  in  the  river  and  harbor  appropriation  acts.^  P.  15, 272,  and 
16, 244,  ifor.  and  Apr.,  1887;  31,  42,  B,  386,  and  35,  234,  ^pr>  to  Sept, 
1889;  42,  85,  July,  1890;  51,  196,  55,  I40,  and  56,  483,  Jan.  to 
Dec,  1892;  58,  450,  Mar.,  1893;  63,  365,  Feb.,  1894;  C.  2138,  Mar., 
1896;  7658,  Feb.  7,  1900;  8360,  June  4,  1900;  11019,  Aug.  10,  1901; 
11111,  Aug.  -29,  1901;  11827,  Dec.  30,  1901;  16691,  Sept.  10,  1901; 
12081,  Feb.  25, 1902;  16213,  Apr.  25, 1904;  16231,  May  4,  1904;  17329, 
Jan.  6, 1905;  25947,  Dec.  15,  1909. 

II  A  1 .  All  islands  in  the  Missouri  River  and  in  the  State  of  Mis- 
souri, which  were  formed  and  in  existence  prior  to  the  admission  of 
the  State  into  the  Union,  belonged  either  to  the  United  States  or  to 
the  parties  to  whom  the  United  States  or  Spain  had  granted  them. 
Upon  the  admission  of  the  State  into  the  Union  the  National  Govern- 
ment relinquished  to  the  State  ownership  of  the  bed  of  the  river  ^ 
therein,  and  since  admission  of  the  State  islands  formed  on  the  bed 
have  belonged  to  the  State,^  or  may  belong  for  school  purposes  to  the 
counties  in  which  they  are  situated  under  an  act  of  the  Missouri  Legis- 
lature approved  April  8,  1895.  The  matter  of  purchasing  for  river 
improvement  purposes  for  the  United  States  willow  brush  and  other 
material,  products  of  these  islands,  would  thus  depend  upon  the 
question  of  title  to  the  islands  and  control  thereof  at  the  time  the 
purchases  are  made.     C.  3186,  May,  1897. 

II  A  2.  On  the  question  raised  as  to  the  authority  to  reserve  two 
islands  formed  by  the  deposits  of  material  from  the  new  canal,  at  the 
St.  Clair  Flats,  Mich.,  held,  that  if  the  St.  Clair  Flats  belong  to  the 
system  of  lakes,  under  the  law  of  Michigan  the  title  to  land  below 
low-water  mark  would  be  in  the  State,  otherwise  in  the  riparian 
owners  *  and  that  the  United  States  would  not  acquire  title  by 
filling  in  the  submerged  land.     C.  20170,  Aug.  9,  1906. 

II  B.  Held,  with  respect  to  the  claim  that  all  the  property  required 
for  a  right  of  way  for  the  canal  connecting  Lake  Washington  with 
Puget  Sound  had  not  been  acquired  because  there  were  outstanding 
leases  to  certain  submerged  lands  in  Salmon  Bay,  a  navigable  water- 
way of  the  United  States,  which  would  be  required  for  the  canal  and 
lock  sites,  that  the  title  of  the  State  or  its  grantee  thereto  is  subject 
to  the  right  of  the  United  States  to  take  and  use  the  lands  for  any 
construction  in  aid  of  navigation,  or  for  any  channel  for  navigation, 

^  See  the  subsequent  opinion  of  the  Attorney  General  in  20  Op.,  101. 

2  See  Pollard  v.  Hagan,  3  Howard,  212;  Goodtitle  v.  Kibbe,  9  id.,  471;  Doe  v.  Beebe, 
13  id.,  25;  Withers  v.  Buckley,  20  id.,  84. 

'  Cooly  V.  Golden,  23  S.  W.  Reporter,  100. 

*  Gould  on  Waters,  3d  edition,  sec.  75,  and  authorities  cited,  especially  Backiis  v. 
Detroit  (49  Mich.,  110);  and  Lincoln  v.  Davis  (53  id.,  375). 


758  JSTAVIGABLE   WATERS  II  B  1. 

without  compensation  to  the  State  or  its  grantee/  so  that  it  would 
not  be  necessary  to  acquire  such  submerged  lands.  C.  20959,  June 
29,1911. 

II  B  1 .  Held,  with  respect  to  the  right  of  the  United  States  to  main- 
tain a  wharf  projecting  from  the  military  reservation  of  Fort  Mason, 
Cal.,  on  submerged  land  held  by  private  parties  under  grant  from  the 
State,  through  the  city  of  San  Francisco,  and  to  dredge  channels 
through  such  lands  for  access  thereto,  that  the  title  to  submerged 
land  under  navigable  waters  of  the  United  States,  whether  in  the 
State  or  a  private  grantee,  was  subject  to  the  servitude  or  easement 
in  favor  of  navigation,  and  to  the  power  of  the  United  States,  under 
the  commerce  clause  of  the  Constitution  to  occupy  the  same  for  any 
purpose  in  aid  of  navigation,  without  compensation,  and  also  to  the 
regulation  by  the  United  States  of  the  use  of  the  same  so  far  as  neces- 
sary to  prevent  the  obstruction  of  navigation;  and  that  the  wharf, 
being  an  aid  to  navigation,  could  be  lawfully  maintained  thereon 
without  compensation  to  the  owners. ^  C.  16630,  Nov.  27,  1907,  and 
Mar.  2, 1908. 

II  B  2.  On  the  question  of  whether  the  adoption  of  a  resolution 
by  Congress,  declaring  the  tunnels  under  the  Chicago  River  to  be 
obstructions  to  navigation  and  directing  their  modification  in  accord- 
ance with  its  terms,  would  involve  the  United  States  in  any  pecuniary 
liability,  lield  that  as  the  tunnels  were  constructed  without  authority 
of  Congress  the  builders  were  presumed  to  know  that  in  placing  them 
under  a  navigable  water  of  the  United  States  they  could  be  main- 
tained only  so  long  as  they  afforded  no  obstruction  to  the  navigation 
of  such  water;  that  their  alteration  could  be  required  in  the  interests 
of  navigation,  without  compensation;  and  that  the  ownership  of  the 
soil  under  the  river  was  immaterial,  since  such  ownershij),  whether 
in  the  State,  municipality,  or  in  a  private  individual,  is  subject  to  the 
paramount  right  of  navigation  and  to  the  authority  of  Congress  to 
remove  obstructions  to  navigation.     C.  7798,  Jan.  12,  1903. 

Held  also  with  respect  to  the  question  of  whether,  in  carrying  out  a 
project  authorized  by  Congress  for  the  improvement  of  Tuckerton 
Creek,  N.  J.,  by  dredging  a  channel  at  the  mouth  of  the  same  through 
oyster  beds  occupied  under  lease  from  the  State  of  the  submerged 
lands  for  oyster  culture,  it  would  be  necessary  to  extinguish  the  lease- 
hold interests  of  the  lessees,  that  such  action  would  not  be  necessary, 
since  the  title  to  submerged  lands,  whether  in  the  State  or  a  grantee 
or  a  lessee  of  the  same,  is  a  quahfied  one  subject  to  the  easement  or 
servitude  in  favor  of  public  navigation  and  to  the  right  of  the  Govern- 

^  Hawkins  Point  Light  House  case,  39  Fed.  Rep.,  77;  Lewis  Bluepoint  Oyster 
Cultivation  Co.  v.  Briggs,  198  N.  Y.,  297—91  N.  E.,  846.  In  the  latter  case  it  was 
held  that  the  lessee  of  land  under  navigable  waters,  for  use  in  the  cultivation  of 
oysters,  had  no  right  in  the  land  which  was  not  subject  to  the  power  of  the  United 
States  to  construct  improvements  in  aid  of  commerce  and  navigation;  that  in  planting 
oysters  he  ran  the  risk  that  the  crop  might  be  interfered  with  whenever  Congress 
decided  to  improve  navigation;  and  that  "The  rule  rests  upon  the  principle  of 
implied  reservation,  and  that  in  every  grant  of  lands  bounded  by  navigable  waters 
where  the  tide  ebbs  and  flows,  made  by  the  crown  or  the  State  as  trustees  for  the 
public,  there  is  reserved  by  implication  the  right  to  so  improve  the  water  front  to  aid 
navigation  for  the  benefit  of  the  general  public  without  compensation  to  the  riparian 
owner." 

2  So  held  by  the  Acting  Attorney  General  in  an  unpublished  opinion,  dated  May  8, 
1906. 


NAVIGABLE   WATERS  II  B  3.  759 

ment  to  take  the  lands  without  compensation  for  the  improvement 
of  the  waterway  to  make  it  subserve  the  purposes  of  commerce.* 
C.  21814,  July  23,  1907. 

II  B  3.  With  reference  to  the  proposed  dredging  of  a  channel  in 
Sabine  Lake,  Tex.,  near  the  shore,  the  effect  of  which  would  be  to 
throw  up  an  embankment  on  the  lake  alongside  of  the  proposed  cut 
and  thus  prevent  riparian  owners  from  constructing  docks  out 
beyond  the  channel  to  the  deep  water  of  the  lake,  held  that  the 
riparian  owners  could  have  no  legal  claim  against  the  United  States 
on  this  ^ound,  regardless  of  whether  or  not  they  owned  the  title 
to  the  soil  in  front  of  their  uplands,  since  any  title  which  they  might 
have  would  be  subject  in  their  hands  to  the  same  paramount  right  or 
servitude  of  the  Government  as  it  would  be  in  the  hands  of  the  State.^ 
C.  17329,  Jan.  6,  1905;  11827,  Dec.  30,  1901.  Similar  lield,  with 
respect  to  the  lowering  of  the  level  of  Lake  Washington,  in  the 
project  for  a  ship  canal  connecting  Lakes  Union  and  Washington 
witn  Puget  Sound;  and  that  the  State  would  have  the  same  power  in 
respect  to  its  navigable  waters,  so  that  even  if  the  lake  be  regarded  as 
a  navigable  water  of  the  State,  the  release  of  the  United  States,  by  the 
act  of  February  8,  1901  (Laws  of  Washington,  1901,  p.  7),  from  all 
liabihtv  to  the  State,  its  successors  or  assigns  which  would  result 
from  tne  proposed  improvement,  would  be  sufficient,  as  such  release 
would  bind  subsequent  grantees  of  the  State.^  C.  20959,  Mar.  2, 
May  17,  and  June  2,  1911. 

II  B  3  a.  With  reference  to  the  claim  of  the  property  owner  of 
submerged  lands  in  Chesapeake  Bay  under  grant  from  the  State 
of  Maryland  for  compensation  for  the  occupation  of  a  portion  of  the 
same  by  a  sea  wall  in  front  of  the  Fort  Armistead  Mihtary  Reserva- 

^  It  is  generally  held  that  the  title  to  submerged  lands  under  a  navigable  water 
of  the  United  States  and  within  the  limits  of  a  State  is  in  the  State  and  may  be  granted 
to  individuals  subject  to  the  right  of  the  United  States  to  take  the  same  without  com- 
pensation for  the  improvement  of  navigation  or  for  structures  in  aid  of  navigation. 
Hawkins  Point  Lighthouse  case,  39  Fed.  Rep.,  77;  Gibson  v.  U.  S.,  166  U.  S.,  269, 
276;  Scranton  v.  Wheeler,  179  U.  S.,  141;  Chicago,  Burlington  &  Quincy  R.  R.  Co.  -y. 
Drainage  Com'rs,  200  U.  S.,  561;  West  Chicago  R.  R.  Co.  v.  Chicago,  201  U.  S.,  506; 
Union  Bridge  Co.  v.  U.  S.,  204  U.  S.,  364;  Lane  v.  Smith,  71  Conn.— 41  Atl.,  18;  Lane 
V.  Board  of  Harbor  Commissioners  (Connecticut),  40  Atl.,  1058.  See  also  Oilman  v. 
Philadelphia  (3  Wall.,  713,  725),  where  the  court  said,  respecting  the  control  of  navi- 
gable waters  for  commerce:  "For  these  purposes  they  are  the  public  property  of  the 
United  States,  and  subject  to  all  the  requisite  legislation  by  Congress.  And  in 
Pollard's  Lessee  v.  Hagan  (3  How.,  230),  the  court  said:  "The  right  of  eminent  domain 
over  the  shores  and  the  soil  under  the  navigable  waters /or  all  municipal  purposes 
belongs  exclusively  to  the  States  within  their  respective  territorial  jurisdictions  *  *  * 
But  in  the  hands  of  the  States  this  power  can  never  be  used  so  as  to  affect  the  exercise 
of  any  national  right  of  eminent  domain  or  jurisdiction  with  which  the  United  States  have 
been  invested  by  the  Constitution.  For  although  the  territorial  limits  of  Alabama 
have  extended  all  her  sovereign  power  into  the  sea,  it  is  there,  as  on  the  shore,  but 
municipal  power,  subject  to  the  Constitution  of  the  United  States  and  the  laws  which 
shall  have  been  made  in  pursuance  thereof." 

2  Gibson  V.  United  States  (166  U.  S.,  272);  Scranton  v.  Wheeler  (179  U.  S.,  143)'; 
Lewis  Bluepoint  Oyster  Cultivation  Co.  v.  Briggs  (198  N.  Y.,  297);  Hawkins  Point 
Lighthouse  case  (39  Fed.  Rep.,  88);  Sage  v.  City  of  New  York  (47  N.  E.,  1101);  Phila- 
delphia Co.  V.  Stimson,  223  U.  S.,  605,  Mar.  4,  1912. 

3  Bilger  et  al.  v.  State  et  al.  (116  Pac,  19).  See  also  Van  Siclen  v.  Muir  (46  Wash., 
41 — 89  Pac,  188),  where  it  was  held  that  an  "Upland  owner  has  no  riparian  or  littoral 
rights  in  the  navigable  waters  of  a  lake.  These  belong  to  the  owners  of  the  shore  lands, 
and  if  they  belong  to  the  State  it  only  can  claim  that  an  obstruction  placed  in  the 
waters  is  an  interference  with  the  riparian  and  littoral  rights." 


760  KAVIGABLE   WATERS  II  C. 

tion,  lield  that  the  United  States,  as  riparian  owner,  had  the  right 
to  construct  the  sea  wall  as  a  right  of  necessity  ^  to  protect  the  bank 
without  obstructing  navigation.    C.  12081 ,  Feb.  25,  and  Aug.  22, 1902, 

II  C.  Where  claim  was  made  for  the  use  by  the  Government  of  a 
wharf  on  submerged  land  in  front  of  Fort  Mason,  Cal.,  under  grant 
from  the  State,  through  the  city  of  San  Francisco,  Tield  that  the  Gov- 
ernment would  appear  to  have  acquired  title  by  prescription.^  G. 
16630,  Aug.  3,  190%.  Held  further  that  the  reservation  having  been 
declared  prior  to  the  grant  from  the  State,  the  submerged  lands  in 
front  of  the  same  should  be  regarded  as  subject  to  a  servitude  in  the 
United  States  for  defensive  purposes,  so  that  no  use  could  be  made 
by  the  grantee  of  the  submerged  land  which  would  interfere  with 
such  purposes;  and  that  there  was  strong  analogy  between  this 
power  and  that  of  commerce.  G.  16630,  Feb.  12,  1906.  Similarly 
held  with  respect  to  the  authority  of  the  United  States  to  lay  and 
maintain  water  mains  under  navigable  waters  between  the  States  of 
New  Jersey  and  New  York,  for  the  purpose  of  supplying  water  from 
the  State  of  New  Jersey  to  Fort  Wadsworth,  N.  i . — the  statutes  of 
New  Jersey  forbidding  the  transportation  of  water  from  the  State, 
and  also  the  use  of  the  submerged  land  of  the  State  for  the  purpose — 
that  while  the  title  to  the  soil  under  the  water  was  in  the  State,  this 
ownersliip,  under  the  decisions,  was  not  an  absolute  one,  but  quali- 
fied by  the  servitudes  in  favor  of  navigation;  that  similar  reasons 
justify  the  view  that  the  title  of  the  State  to  such  submerged  lands 
IS  subject  also  to  the  right  of  the  United  States  to  use  the  same  for 
other  constitutional  purposes,  such  as  the  laying  of  mines  for  harbor 
defenses,  the  laying  of  conduits  and  mains  for  electrical  communica- 
tion between  fortifications,  and  for  supplying  water  for  the  use  of 
the  garrisons  of  the  fortifications.  Held  further  that  the  statutes  of 
the  State  could  not  be  regarded  as  including  the  United  States,  since 
the  State  could  not  control  the  operations  of  the  General  Govern- 
ment within  the  sphere  of  its  activities.     G.  26142,  June  7,  1910. 

II D.  Under  the  power  to  improve  navigation.  Congress  may 
appropriate  for,  and  the  Secretary  of  War  may  cause  to  be  erected, 
a  pier  in  Lake  Michigan,  and  after  its  erection  the  United  States  has 
the  authority  of  conservation  of  the  same.  P.  64,  4"^^,  Aug.,  1892. 
And  see  R.  51,  609,  Mar.,  1887.  Its  exercise  may  be  discontinued 
or  abandoned  when  the  work — such  as  a  pier,  dam,  breakwater, 
etc. — is  no  longer  needed  for  the  improvement  of  navigation.  P.  32, 
375,  May,  1889;  39,  99,  and  42,  210,  Feb.  and  July,  1890;  G.  13680,  Nov. 
25,  1902. 

II  D  1.  Held  that  the  building  of  a  dyke,  under  an  appropriation 
for  the  improvement  of  the  navigation  of  the  Hudson  River,  did  not 
of  itself  vest  in  the  United  States  a  property  in  the  soil  or  give  it  any 
title  thereto ;  ^  that  the  property  in  the  river  frontage  was  affected  by 
the  rights  of  the  United  States  only  so  far  as  concerned  the  naviga- 
tion of  the  river  and  the  maintenance  and  conservation  of  the  work 
of  improvement,  and  that  the  owner  might  legally  make  any  use  of 
his  property  that  he  might  see  fit  provided  it  did  not  obstruct  naviga- 

1  Diedrich  v.  Northern  Union  Ry.  Co.,  42  Wis.,  262;  Gould  on  Waters,  sec.  160. 

2  So  held  by  the  Attorney  General  in  an  unpublished  opinion  dated  May  G,  1906. 

3  6  Op.  Atty.  Gen.,  172;  7  id.,  314;  Hawkins  Point  Lighthouse  Case,  39  Fed.  Rep., 
77;  Scranton  v.  Wheeler,  179  U.  S.,  141. 


NAVIGABLE   WATERS  II   D  1.  761 

tion  or  interfere  with  the  improvement.^  R.  51,  609,  Mar.,  1887; 
P.  54,  477,  Aug.,  1892;  G.  13680,  Nov.  25,  1902. 

II  D  1  a.  Where  a  railroad  company,  wluch,  as  riparian  pro- 
prietor, owned  the  land  upon  wluch  was  located  a  revetment  of  the 
bank  of  a  navigable  stream  (constructed  by  the  United  States  in  the 
improvement  of  the  navigation  of  the  same),  was  authorized  to  rebuild 
the  revetment,  subject  to  the  condition  that  the  work  should  be  so 
done  and  maintained  as  to  fully  subserve  its  purpose  as  a  safe  and 
secure  revetment  and  j)rotection  to  the  channel  oi  the  stream — held 
that  the  company,  as  riparian  owner,  was  legally  entitled  to  use  the 
revetment  so  long  as  such  use  did  not  impair  its  serviceableness  or 
involve  such  an  exclusive  possession  as  would  be  in  violation  of  the 
provisions  of  section  9  of  the  act  of  September  19,  1890  (26  Stat.  426), 
and  that  a  failure  on  its  part  to  periorm  the  condition  would  not, 
per  se,  divest  it  of  such  right  of  use,  or  empower  the  Secretary  of  War 
to  enforce  such  performance  by  revoking  the  authority  to  rebuild 
the  revetment.     P.  64,  11,  Feb.,  1894;  0.  3931,  Mar.  14,  1908. 

III.  There  is  no  general  legislation  of  Congress  authorizing  the 
construction  of  bridges  over  streams  or  waterways,  the  navigable 
portions  of  which  are  not  wholly  within  the  limits  of  a  single  State, 
except  as  to  bridges  over  the  Ohio  River.^  Such  authority  has 
hitherto  been  given,  with  the  exception  stated,  by  special  acts,  which 
have  uniformly  contained  provisions  requiring  that  the  plans  of  the 
bridges  be  submitted  to  the  Secretary  of  War  for  approval  before 
construction  is  commenced.  But  in  the  case  of  a  stream  or  waterway 
whose  navigable  extent  is  wholly  within  the  limits  of  a  single  State, 
Congress  has  provided  by  section  7  of  the  river  and  harbor  act  of 
September  19,  1890,  as  amended  by  section  3  of  the  corresponding  act 
of  July  13,  1892  (27  Stat.  88),  by  a  negative  pregnant  with  an  affirm- 
ative, and  by  section  9  of  the  act  of  March  3,  1899,  directly,  that  a 
bridge  may  be  built  thereover  under  authority  of  an  act  of  the  State 
legislature,  provided  the  plans  and  location  thereof  are  approved  by  the 
Secretary  of  War.^     C.  307,  Sept.,  1894;  1S75,  May,  1895;  1943,  Jan., 

^  16  Op.  Atty.  Gen.,  486.  See,  however,  act  of  Congress  of  Mar.  3,  1899  (30  Stat. 
1152),  and  Scranton  v.  Wheeler,  supra. 

2 See  act  of  Congress  approved  Dec.  17,  1872  (17  Stat.  398),  as  amended  by  act 
approved  Feb.  14,  1883  (22  Stat.  414).  See  also  acts  of  Mar.  23,  1906  (34  Stat.  84), 
prescribing  requirements  to  govern  as  to  grants  thereafter  by  Congress  of  authority  for 
bridges;  and  act  of  June  21,  1906  (34  Stat.  386,  as  amended  by  36  Stat.  593)  for  similar 
legislation  as  to  dams. 

^  See  20  Op.  Atty.  Gen.,  488,  and  Lake  Shore  &  Michigan  Southern  Ry.  Co.  v.  Ohio, 
165  U.  S.,  365.  The  intention  of  Congress  is  more  clearly  expressed  in  section  9  of 
the  river  and  harbor  act  approved  Mar.  3,  1899  (30  Stat.  1151),  which,  after  making  it 
unlawful  to  construct  any  ' '  bridge,  dam,  dike,  or  causeway, ' '  over  any  navigable  water 
of  the  United  States  until  the  consent  of  Congress  thereto  shall  have  been  obtained, 
etc.,  specifically  provides:  "That  such  structures  may  be  built  under  authority  of  the 
legislature  of  a  State  across  rivers  and  other  waterways  the  navigable  portions  of 
which  lie  wholly  within  the  limits  of  a  single  State,  provided  the  location  and  plans 
thereof  are  submitted  to  and  approved  by  the  Chief  of  Engineers  and  by  the  Secretary 
of  War  before  construction  is  commenced." 

Under  date  of  Sept.  25,  1899,  the  Secretary  of  War  held  that  this  section  does  not 
authorize  the  Secretary  of  War  or  the  Chief  of  Engineers  to  approve  the  plans  for  a 
bridge  or  other  structure  which  would  be  an  obstruction  to  navigation  liable  to  be 
proceeded  against  under  the  other  sections  of  the  act  or  of  the  statutes  theretofore 
existing;  that  the  intent  of  the  section  appears  to  be  to  commit  to  the  States  the  deter- 
mination of  the  question  whether  or  not  there  should  be  a  bridge  at  any  particular 
place  over  navigable  waters  wholly  within  the  State,  and  to  commit  to  the  Secretary 
of  War  the  protection  of  navigation  against  obstructions  by  such  a  bridge. 


762  NAVIGABLE  WATERS  III  A. 

1896;  2U8,  2^70,  July,  1896;  2596,  Sept.,  1896;  2677,  Oct,  1896; 
SO47,  Mar.,  1897;  3428,  Aug.,  1897.  In  the  latter  case  the  plans  of 
tJie  bridge  should  be  accompanied  by  proper  evidence  that  the  State 
has  authorized  its  construction,  u.  1389,  May,  1895;  12022,  Feb. 
6,  1902;  12905,  Sept.  29,  1902;  13652,  Nov.  19,  1902. 

Ill  A.  Section  7  of  the  act  ol  1890  (26  Stat.  426),  in  leaving  the 
matter  of  the  authorization  and  construction  of  bridges  over  navi- 
gable waters  wholly  within  States  entirely  to  the  jurisdiction  of  the 
State,  except  in  so  far  as  to  require  the  approval  by  the  Secretary  of 
War  of  the  location  and  plan  of  the  bridge,  indicates  that  Congress 
did  not  desire  to  exercise  any  further  control  over  the  subject.  So, 
upon  an  application  for  the  approval  by  the  Secretary  of  War  of  the 
plans  of  a  bridge  over  the  Harlem  River,  which  is  wholly  within  the 
State  of  New  York,  Tield  that  the  fact  of  the  unusual  importance  of 
this  stream,  and  of  its  immediate  connections  with  great  interstate 
waterways  and  the  sea,  did  not  except  it  from  the  jurisdiction  of  the 
State  under  the  statute  or  make  necessary  any  special  or  additional 
legislation  by  Congress  for  the  authorization  or  control  of  its  system 
of  bridges.    P.  53,  35^,  May,  1892;  C.  13652,  Nov.  19,  1902. 

Ill  A  1.  Section  9  of  the  act  of  March  3,  1899  (30  Stat.  1151)  pro- 
vides affirmatively  that  bridges,  inter  alia,  ''may  be  built  under 
authority  of  the  legislature  of  the  State  across  rivers  and  other  water- 
ways the  navigable  portions  of  wMch  lie  wholly  within  the  limits  of  a 
single  State,  provided  that  the  location  and  plans  thereof  are  sub- 
mitted to  and  approved  by  the  Chief  of  Engineers  and  by  the  Secre- 
tary of  War  before  construction  is  commenced."  On  the  question 
raised  with  respect  to  the  proposed  construction  by  the  Northern 
Pacific  Railway  of  pile  bridges  across  certain  waterways  of  Puget 
Sound,  as  to  whether  the  Chief  of  Engineers  and  the  Secretary  of  War 
could  legally  decline  to  consider  plans  for  these  crossings,  under 
authority  of  the  State,  held,  that  in  view  of  the  provisions  of  said  section 
the  necessity  of  crossing  the  waterways  is  a  matter  for  the  considera- 
tion of  the  State,  subject  only  to  the  authority  of  the  Chief  of  Engi- 
neers and  the  Secretary  of  War  to  approve  only  such  plans  and  loca- 
tions as  will  prevent  the  structures  from  being  an  unreasonable 
obstruction  to  navigation.  C.  25Ji42,  Aug.  30, 1909.  Held,  however, 
that  there  would  be  no  objection  to  the  local  engineer  officers  suggest- 
ing to  the  railway  company  the  advisability  of  changing  the  location 
of  the  railway  in  order  to  avoid  the  expense  of  constructing  and 
mamtaining  drawbridges  across  these  waterways.  C.  25^42,  Sept.  1, 
1909. 

On  the  application  of  the  city  of  Boston  for  the  approval  of  the 
plans  of  a  bridge  across  Fort  Point  Channel,  in  Boston,  a  navigable 
waterway  of  the  United  States  lying  whoUy  within  the  State,  said 
bridge  to  be  erected  under  State  authority,  lield  that  the  jurisdiction 
of  tlie  Secretary  of  War  and  of  the  Chief  of  Engineers,  under  section  9 
of  the  act  of  March  3,  1899  (30  Stat.  1151),  relates  to  the  situation 
and  dimensions  of  the  piers,  the  length  of  the  spans,  width  of  the  draw 
openiQgs,  etc.,  but  does  not  include  the  power  of  determining  whether 
or  not  a  bridge  should  be  built  across  the  waterway  at  or  near  the 
location  of  the  proposed  bridge,  that  being  a  matter  for  the  State 
to  determine  under  the  statute.^     C.  17600,  Feb.  27,  1905. 

1  See  Lake  Shore  &  Michigan  Southern  Railway  Co.  v.  Ohio  (165  U.  S.  366,  368,  369); 
Cummings 7;.  Chicago  (168  U.  S.  410);  Montgomeryy.  Portland  (190 U.  S.  89). 


NAVIGABLE  WATERS  III  A  2.  763 

III  A  2.  Held,  under  section  7  of  the  act  of  September  19,  1890,  as 
amended  by  sections,  act  of  July  13, 1892,  and  by  section  9,  actof  March 
3,  1899  (30  Stat.  1151),  that  the  authority  of  a  State  for  the  erection 
of  a  brido^e  over  navigable  water  within  the  State  should  be  shown  as 
a  condition  precedent  to  the  ap])roval  by  the  Secretary  of  War.  ^ 
P.  55,  61,  and  I40,  Aug.,  1892:  62,  94,  Oct.,  1893;  C.  7774,  Mar,  8, 
1900;  12022,  Feb.  9,  1902;  13652,  Nov.  13, 1902;  18947,  Dec.  13, 1905. 
The  fact  that  the  title  to  the  soil  under  the  water  is  vested  in  a  munici- 
pality of  the  State  does  not  affect  the  power  of  the  State  to  grant 
such  authority,  nor  dispense  with  the  necessity  of  its  doing  so.  The 
title  to  the  soil  is  distinct  from  the  right  of  conservation.  Though 
tliis  title  be  vested  in  a  town  by  the  State,  there  remains  in  the  latter 
by  reason  of  its  sovereignty,  ''a  jus  publicum  of  passage  and  repassage, 
with  consequent  ])ower  of  conservation,"^  under  which  power  it  may- 
concede  the  authoritv  required  by  the  statute.  P.  62,  94,  supra;  u. 
12081,  Feb.  19,  1902;  16213,  Apr.  25,  1904;  17329,  Jan.  6,  1905. 

Ill  A  2  a.  Where  the  act  of  a  State  legislature  required  a  draw, 
and  the  plan  of  the  bridge  submitted  did  not  provide  for  one,  held, 
that  there  being  no  State  authority  for  the  construction  of  the  bridge 
as  proposed,  the  Secretary  of  War  was  without  jurisdiction  to  approve 
the  plans  presented.     C.  144^i  June,  1895. 

Similarly  held,  where  plans  were  submitted  for  the  construction  of 
a  dam  or  dams  without  locks,  while  the  statutory  authority  relied  on 
required  ''a  lock  or  system  of  locks."     C.  26797 ,  June  1,  1910. 

Ill  A  2  b.  As  the  object  of  this  legislation  is  to  protect  the  naviga- 
ble waters  of  the  United  States  from  unreasonable  obstructions,  held, 
that  it  should  not  be  construed  to  authorize  the  location  and  plan  of  a 
bridge  wliich  would  have  the  effect  of  stopping  navigation  at  the  point 
where  it  is  to  be  constructed.     C.  5863,  Feb.,  1899. 

With  reference,  however,  to  the  construction  by  the  city  of  New 
York  of  an  embankment  or  causeway  to  hold  a  sewer  outlet  across  a 
navigable  creek  in  that  city  with  a  view  to  filling  solid  above  the  same, 
held,  that  the  city  having  authority  from  the  State  for  the  purpose,  the 
location  and  plans   could  be  approved.     C.  25047,  June  5,  1909. 

Ill  A  2  c.  On  the  question  of  whether  the  Secretary  of  War  had 
authority  to  approve  the  plans  for  a  power  dam  across  St.  Joseph 
River,  Ind.,  the  navigable  portion  of  said  river  being  in  Michigan, 
held,  that  as  the  portion  of  the  river  to  be  affected  by  the  structure 
is  not  navigable,  no  approval  of  the  plans  by  the  department  was 
required.  C.  11394,  Oct.  18,  1901.  Similarly  held,  with  reference  to 
power  dams  across  the  Missouri  River  in  the  section  known  as  ''The 
Rapids,"  near  Great  Falls,  Mont.     C.  25647,  Dec.  21,  1909.^ 

Ill  A  3.  With  reference  to  the  question  of  the  authority  of  the 
Chief  of  Engineers  and  the  Secretary  of  War  to  approve  plans  for 
I'ebuilding  a  bridge  over  the  Taunton  River,  a  stream  lying  wholly 
within  the  limits  of  the  State  of  Massachusetts,  under  State  authority 
given  in  1864,  held  that  the  right  originally  given  to  construct  the 
bridge  included  the  right  to  maintain  it,  i.  e.,  to  repair  or  rebuild  it;  ^ 

1  See  L.  S.  &  M.  S.  R.  Co.  v.  Ohio.  165  U.  S.,  365,  and  20  Op.  Atty.  Gen.,  488. 

2  6  Op.  Atty.  Gen.,  172,  178. 

3  Rogers  Sand  Co.  v.  Pittsburgh,  Fort  Wayne  &  Chicago  R.  R.  Co.  (139  Fed.  Rep.,  7); 
Hamilton  v.  Pittsburgh,  etc.,  Ry.  Co.  (119  U.  S.,  281);  Central  Trust  Co.  v.  Wabash, 
St.  Louis  &  Pacific  R.  R.  Co.  (32  Fed.  Rep.,  566). 


764  NAVIGABLE   WATERS  III  B  1. 

and  that  as  the  act  provided  for  a  draw  of  ''not  less"  that  60  feet  in 
width,  implying  that  in  case  of  future  reconstruction  a  greater  width 
might  be  required,  the  Secretary  of  War  and  the  Chief  of  Engineers, 
in  the  exercise  of  the  powers  conferred  on  them,  in  passing  upon  the 
plans  could  recjuire  such  changes  in  the  location  and  structural  rela- 
tions of  the  bridge  as  might  seem  to  them  best  calculated  to  secure 
the  free  and  unobstructed  navigation  of  the  river.  C.  189 A?,  Dec. 
21,  1905. 

Ill  B  1 .  Where  the  special  act  does  not  require  that  a  plan  of  the 
bridge  shall  be  approved  by  the  Secretary  of  War,  he  will  preferably 
not  give  his  approval  to  any  plan,  since  if  he  did  so  he  might  perhaps 
commit  the  Government  to  the  sanction  of  a  bridge  which  might  prove 
to  be  an  obstruction  to  navigation.  P.  25,  96,  June,  1888.  Where, 
however,  it  was  proposed  to  rebuild  a  bridge,  originally  constructed 
over  the  Missouri  River  under  a  special  act  of  Congress  which  did  not 
require  approval  of  the  plans,  Jield,  that  as  the  later  legislation  in  sec- 
tion 9  of  the  act  of  March  3,  1899  (30  Stat.  1150),  requires  the  approval 
of  the  plans  by  the  Chief  of  Engineers  and  the  Secretary  of  War,  as 
well  as  the  consent  of  Congress,  approval  of  the  plans  for  the  rebuild- 
ing of  the  bridge  would  be  required.     C.  11500,  Nov.  2,  1901. 

Ill  B  2.  Where  a  special  act  of  Congress  authorized  the  construc- 
tion of  a  bridge  across  the  Mississippi  River,  upon  obtaining  approval 
by  the  Chief  of  Engineers  and  the  Secretary  of  War  of  the  location  and 
plans  of  the  same,  and  the  applicant,  after  the  piers  had  been  com- 
pleted and  the  grade  fixed,  applied  for  the  approval  of  the  location 
and  plans,  the  approval  was  withheld  on  account  of  the  objectionable 
location  of  the  bridge;  and  thereafter  an  act  was  passed  authorizing 
the  apphcant  ''to  maintain  and  operate  a  bridge  and  approaches 
thereto  now  constructed,"  upon  the  proviso,  inter  alia,  that  the  plans 
and  specifications  should  be  approved  by  the  Secretary  of  War  and 
the  Chief  of  Engineers,  otherwise  the  act  to  be  null  and  void.  On 
the  question  raised  as  to  whether  it  was  intended  that  the  bridge 
should  be  allowed  to  stand  as  built,  except  for  such  minor  changes  as 
could  readily  be  made,  or  to  make  the  legahzation  of  the  bridge  de- 
pend upon  the  judgment  of  the  War  Department  that  the  location 
and  plans  would  afford  reasonable  facilities  for  navigation,  held, 
that  the  latter  view  would  defeat  the  operation  of  the  statute;  and 
therefore  that  the  approval  contemplated  by  the  act  was  of  the  plans 
and  location  of  the  existing  bridge,  with  such  aids  to  navigation  and 
minor  changes  as  might  be  deemed  necessary  in  the  interests  of 
navigation.     C.  26773,  June  3,  1910. 

Ill  B  3.  Where  a  special  statute  (act  of  Congress),  authorizing 
the  erection  of  a  bridge  over  navigable  water  by  a  railroad  corporation 
named,  provided  that  the  bridge  should  not  be  commenced  till  the 
company  should  submit  for  approval  by  the  Secreatry  of  War  a  certain 
plan  and  design  with  designated  particulars  and  specifications,  held, 
that  the  authority  of  the  Secretary  was  thus  restricted,  and  that  he 
could  not  lawfully  act  and  approve  till  the  data  described  were  sub- 
mitted.    P.  30,  29,  Jan.,  1889;  G.  163,  May,  1890. 

The  application  for  the  approval  must  be  accompanied  by  the  par- 
ticulars specified  in  the  act;  otherwise  the  Secretary  has  no  jurisdic- 
tion. Here  the  map  and  plan  submitted  failed  to  show  the  character 
of  the  stucture,  as  also  the  full  shore  line  and  the  direction  and 


NAVIGABLE  WATERS  III  B  3  a.  765 


strength  of  the  current,  and  gave  only  partial  soundings.  P.  4^, 
Oct.,  1890;  C.  205,  208,  and  209,  Oct.,  1890.  Plans  are  insufficient  as  a 
basis  for  action  where  they  do  not  show  what  the  statute  requires.* 
C.  9950 y  Mar.  7,  1901.  Where  the  special  act  designates  the  kind  of 
bridge  authorized,  details  of  the  plan,  etc.,  the  Secretary  of  War  is 
empowered  to  approve  only  such  a  bridge  and  such  plans  as  comply 
with  the  statute.  If  he  gives  his  approval  to  others,  his  action  will  be 
ineffectual  in  law,  and  the  bridge  if  completed  will  not  be  a  legal 
structure.2  C.  229,  Nov.,  1890;  1477,  June,  1895;  1532,  July,  1895; 
8892,  Sept.  and  Nov.,  1900;  9950,  Mar.  7,  1901;  11678,  Dec.  2,  1901. 

Ill  B  3  a.  Where  a  special  act  authorizes  the  placing  of  a  bridge 
across  navigable  water  of  the  United  States,  by  a  railroad  or  other 
corporation,  in  addition  to  the  plan  of  location  and  particulars  re- 
quired by  the  statute,  a  standing  "rule"  of  the  War  Department  of 
July  31,  1886,  requires  certain  other  evidence  to  be  submitted  to  the 
Secretary  of  War,  to  estabhsh  the  legal  existence  and  authority  of  the 
corporation  and  its  acceptance  of  the  privileges  and  conditions  granted 
and  imposed  by  the  act.^  R.  53,  379,  Apr.,  1887;  56,  574,  Sept.,  1888. 
In  particular  cases  stiU  other  evidence  may  be  essential;  as  m  a  case 
where  there  has  been  a  consoUdation  of  two  companies,  when  copies 
of  the  agreement  and  of  the  enactment  authorizing  the  consolidation, 
etc.,  should  also  be  submitted.     R.  52,  199,  May,  1887. 

Ill  B  3  a  (1).  Under  the  rule  of  July  31,  1886,  it  has  been  decided 
by  the  Secretary  of  War  that  the  copy  of  the  charter  or  articles  of 
incorporation  of  the  company  should  be  authenticated  under  the  sig- 
nature and  official  seal  of  the  Secretary  of  State,  or  other  proper  State 
official,  in  whose  office  the  original  is  on  file.  Held  that  a  printed  copy 
of  a  copy,  under  the  certificate  of  the  secretary  of  the  company  and  its 
corporate  seal,  was  not  sufficient  evidence.  R.  53,  32,  37,  Sept.  1886. 
But  the  fact  that  the  company  has  not  furnished  proper  evidence  of 
its  incorporation  does  not  affect  the  jurisdiction  of  the  Secretary  of 

^  In  practice,  however,  the  location  and  plans  of  bridges  have  been  approved, 
although  the  map  of  location  failed  to  show  all  the  details  specified  in  the  statute, 
the  provisions  of  the  statute,  in  this  respect,  being  treated  as  directory. 

2  See  Hannibal  &  St.  J.  R.  Co.  v.  Missouri  River  Packet  Co.,  125  U.  S.,  260,  263; 
Missouri  River  Packet  Co.  ^.  Hannibal  &  St.  J.  R.  Co.,  2  Fed.  Rep.,  285;  Gildersleeve 
V.  New  York,  N.  H.  &  H.  R.  Co.,  82  id.,  763;  Assante  v.  Charleston  Bridge  Co.,  41 
id.,  365. 

^  This  rule  is  as  follows : 

Rule  to  he  observed  when  application  is  made,  pursuant  to  an  act  of  Congress,  for  the 

approval  by  the  Secretary  of  War  of  plans  for  a  bridge,  or  a  right  of  way,  or  other  privilege. 

When  an  act  of  Congress  granting  a  privilege  to  an  individual  or  a  corporation  contains 
a  clause  requiring  the  approval  of  the  Secretary  of  War  to  certain  matters  of  detail,  the 
grantee  will  be  required  to  establish  his  identity;  if  the  grant  is  to  a  corporation,  there 
will  be  required  a  copy  of  its  charter  or  articles  of  incorporation,  and  of  the  minutes  of 
the  organization  of  the  company;  also  extracts  from  the  company  minutes  showing  the 
names  of  the  present  officers  of  the  company  and  the  acceptance  by  the  company  of 
the  provisions  of  the  act  of  Congress,  all  properly  authenticated. 

The  identity  of  the  grantee  having  been  established,  and  the  provisions  of  the  law 
having  been  complied  with,  the  terms,  conditions,  requirements,  etc.,  will  be  reduced 
to  writing.  This  paper  will  be  signed  by  the  grantee  in  token  of  his  acceptance  of 
the  conditions  imposed,  and  will  be  approved  by  the  Secretary  of  War,  one  copy  thereof 
to  be  filed  in  the  War  Department  and  the  other  given  the  grantee. 

Wm.  C.  Endicott, 

Secretary  of  War. 

War  Department,  July  SI,  1886. 


766  NAVIGABLE  WATERS  III  B  5  a. 

War  to  approve  plans  of  a  bridge  submitted,  and  the  objection  may  be 
waived.     C.  U7,  Oct.,  1894. 

Ill  B  3  a  ( 2) .  Held  that  the  statement  of  the  secretary  of  the  com- 
pany that  it  had  accepted  the  provisions  of  the  special  act  (or  of  the 
general  act  of  July  5,  1884)  (23  Stat.  133),  was  not  proper  evidence 
under  the  rule,  but  that  there  should  be  furnished  a  duly  authenti- 
cated extract  from  the  minutes  of  the  company  exhibiting  the  fact  of 
acceptance.  It  should  similarly  be  shown  that  the  map  of  location 
and  plan  of  bridge  submitted  have  the  approval  and  sanction  of  the 
company.     R,  S3, 12, 168,  Sept.  and  Oct.,  1886. 

Ill  B  3  b.  Where  a  specific  act  required  a  bridge  to  have  at  least 
three  channel  spans  "of  not  less  than'^  500  feet  each  in  length,  and  it 
was  proposed  to  require  one  of  the  spans  to  be  700  feet  in  length,  held 
that  the  Secretary  of  War,  on  the  recommendation  of  a  board  of  engi- 
neer officers,  could  require  a  greater  length  of  span,  within  reasonable 
Hmits,  but  could  not  properly  require  such  a  length  of  span  as  would 
be  unreasonable  for  the  locality  or  as  would  require  an  impossible 
structure.     C.  6662,  Jan.  14, 1899. 

Ill  B  3  c.  Where  a  special  act  of  Congress  authorized  a  "free 
wagon,  foot  and  street  railway  bridge''  across  the  Arkansas  River  at 
Little  Rock,  Ark.,  and  the  approved  plans  were  changed  during  con- 
struction and  the  bridge  thereby  weakened  so  that  it  could  not  be 
safely  used  for  street  railway  purposes,  lield,  on  the  question  of  whether 
the  Secretary  of  War  could  "msist  upon  the  terms  of  the  charter  being 
carried  out,"  so  that  a  street  railway  could  be  built  to  the  mihtary 
post,  that  the  act  did  not  confer  on  the  Secretary  of  War  any  authority 
to  so  insist;  that  his  only  authority  to  require  the  bridge  to  be  altered 
would  be  under  section  18  of  the  river  and  harbor  act  of  March  3, 1899, 
but  that  as  it  did  not  appear  that  the  bridge  was  an  unreasonable 
obstruction  to  navigation,  no  action  could  be  taken  under  this  act; 
and  that  the  only  way  the  requirement  could  be  enforced  would  be  to 
submit  the  matter  to  Congress  for  its  action  under  the  reservation  in 
the  special  act  of  the  power  to  repeal  it  or  require  changes  in  the  bridge 
at  the  expense  of  the  owners.     C.  2354,  ^'^9-  5  and  18, 1903. 

Ill  B  4.  It  is  well  settled  that  an  unrestricted  grant  of  an  authority 
to  construct  a  railroad  from  one  designated  point  to  another  includes 
by  imphcation  the  authority  to  bridge  navigable  streams  en  route, 
where  the  road  can  not  practicably  or  reasonably  be  constructed  with- 
out crossing  them.^  Thus,  where,  by  an  act  of  Congress  of  June  1, 
1886,  authority  was  given  to  a  railway  company  to  construct  and  oper- 
ate a  railway  through  the  Indian  Territory,  from  a  point  at  or  near 
Fort  Smith  to  a  point  to  be  selected  by  the  company  on  the  northern 
boundary  line  of  the  Territory,  lield  that  the  company  would  be  author- 
ized to  bridge  the  Arkansas  River.  P.  25,  92,  June,  1888.  Similarly 
lield  as  to  bridging  the  same  river  by  the  Kansas  City,  Pittsburg  & 
Gulf  Railway  Co.  under  the  act  of  Congress  approved  February  17, 
1893.     0. 1510,  July,  1895;  7774,  June  16, 1900. 

Ill  B  5.  An  act  of  May  14,  1888,  in  authorizing  the  Tennessee  Mid- 
land Railway  Co.  to  bridge  the  Tennessee  River,  provided  ''that  this 
act  shall  be  nuU  and  void  if  the  actual  construction  of  the  bridge 

1  Gould  on  Waters,  3d  ed.,  bgc.  129;  Fall  River  Iron  Works  Co.  i;.  Old  Colony  &  Fall 
River  R.  R.  Co.,  5  Allen,  221;  U.  P.  R.  R.  Co.  v.  Hall,  91 U.  S.,  343. 


NAVIGABLE   WATERS  III   B  5  a.  767 

herein  authorized  be  not  commenced  within  one  year  and  completed 
within  three  years  from  the  date  of  the  approval  of  this  act."  In  the 
absence  of  words  making  time  an  essential  element  of  the  performance, 
legislative  acts  of  this  character,  although  they  may  designate  a 
period  within  which  a  certain  tiling  is  to  be  done,  are  construed  to  be 
directory  only  and  not  mandatory  as  to  time.  But  held  here  that  the 
statute  was  mandatory  and  that  the  time  specified  was  made  of  the 
essence  of  the  grant,  and  therefore  that  the  company,  in  applying  for 
the  approval  by  the  Secretary  of  War  of  the  location  and  plan,  re- 
quirea  by  the  act  to  be  approved  by  him,  must  show  that  the  work 
had  been  commenced  within  tlie  time  fixed.  P.  33,  409,  July,  1889; 
47,  99,  May,  1891;  C.  8736,  Aug.,  1900, 

III  B  5  a.  Wliere  the  act  of  Congress  authorizing  the  construction 
of  a  bridge  fixes  the  time  for  the  completion  thereof,  the  Secretary  of 
War  can  not  grant  an  extension  of  the  time.  In  such  a  case  the  bridge 
should  be  completed  as  soon  as  possible  and  application  made  to  Con- 
gress for  the  necessary  extension.     C.  250,  Nov.,  1894. 

Ill  C.  Authority  granted  by  an  act  of  Congress  to  a  corporation  or 
an  individual  to  construct  a  bridge  over  navigable  water  of  the  United 
States  is  a  franchise  which  can  not  be  assigned  without  the  permission 
of  the  grantor.*  And  the  Secretary  of  War  can  not  in  such  a  case 
lawfully  entertain  an  application  for  the  approval  by  him  of  the  plans 
of  a  bridge  made  by  a  party  or  a  corporation  to  which  tlw)  right  to 
build  the  bridge  has  been,  without  the  authority  of  Congress,  trans- 
ferred. R.  49,  618,  Dec,  1885;  P.  31,378,  Apr.,  1889;  32, 469,  June, 
1889;  C.  17979,  Sept.  1,  1905;  18990,  Dec.  29,  1905.  Where  a  specific 
grant  to  build  a  bridge  for  a  specific  purpose — i.  e.  to  complete  its 
line  and  to  accommodate  the  public — is  made  to  a  railroad  corpora- 
tion by  an  act  of  Congress  conferring  no  power  of  substitution,  new 
legislation  is  requisite  to  authorize  the  transfer  of  the  franchise  to 
another  company.  R.  4^,  618,  supra;  630,  Jan.,  1886;  C.  1660,  Aug., 
1895. 

Ill  C  1.  Where  the  plans  were  submitted  and  the  approval  of  the 
Secretary  was  applied  for,  not  by  the  corporation  to  which  the  au- 
thority to  build  the  bridge  had  been  granted  by  an  act  of  Congress, 
but  by  a  construction  company,  which,  by  contract,  was  to  erect  all 
the  bridges  for  such  corporation  and  to  own  them  when  completed, 
lield,  that  the  Secretary  of  War  could  not  legally  approve  the  applica- 
tion, the  substitution  of  the  company  not  having  been  authorized  by 
Congress.     P.  31,  378,  Apr.,  1889. 

Ill  C  1  a.  Where  the  authority  for  the  bridge  is  given  in  terms 
to  the  company,  '4ts  successors  and  assigns,"  it  is  held  that  these 
words,  being  the  ordinary  words  of  limitation  of  an  estate  granted  in 
perpetuity  to  a  corporation,  confer  no  right  of  transfer .^  Tliere  must 
stilt  be  specific  authority  of  statute  for  the  purpose,  or  the  transfer, 
if  assumed  to  be  made,  will  be  ineffectual  and  void.  P.  31,  378, 
Apr.,  1889;  34,  276,  Aug.,  1889;  C.  17979,  Sept.  1,  1905;  18890,  Dec. 
5,  1905. 

Ill  C  1  b.  On  the  question  whether  plans  for  the  reconstruction  of 
a  bridge  submitted  by  the  assignee  oi  the  company  which  received 

1  Branch  v.  Jesup,  106  U.  S.,  468;  Thomaa  v.  Railroad  Co.,  101  U.  S.,  71. 
3  18  Op.  Atty.  Gen.,  512. 


768  NAVIGABLE  WATERS  III  D. 

the  franchise  from  Congress  could  be  approved,  Tield  that  after  the 
plans  had  been  approved  and  the  bridge  built  the  franchise  should  be 
regarded  as  passing  with  the  title  to  the  property,  and  that  plans  for 
the  renewal,  reconstruction,  or  repair  of  the  bridge  will  be  accepted 
from  the  person  or  corporation  in  actual  possession  or  control  of  the 
property — the  presumption  being  that  the  possession  or  control  of 
the  party  in  occupation  is  legal.^  ^   G.  24818,^  May  20,  1909. 

Ill  D.  The  bridge  across  the  Mississippi  River  connecting  the  cities 
of  Rock  Island,  111.,  and  Davenport,  Iowa,  belongs  to  the  United 
States,  which  has  complete  control  of  the  same,  subject  to  the  right  of 
way  of  the  Chicago,  Rock  Island  &  Pacific  Radroad  Co.  (under  the 
acts  of  June  27,  1866,  and  March  2,  1867.)  The  bridge  is  both  a 
wagon  and  a  railroad  bridge.  The  railroad  company  has  no  interest 
in  or  authority  over  the  wagon  way  or  right  to  dictate  what  use  shaU 
be  made  of  it.  The  wagon  way  is  established  for  the  use  of  the  United 
States,  not  for  that  of  the  public,  but  has  been  opened  to  the  public 
for  passage  and  transportation  subject  to  conditions,  one  of  which  is 
that  certain  radroad  freights  shall  not  be  conveyed  over  it.  Held,  that 
neither  the  railroad  company  nor  the  commanding  ofiicer  of  the  arsenal 
was  authorized  to  prevent  the  American  Express  Co.  from  hauling 
across  between  the  two  cities  express  matter  not  of  the  character 
precluded  by  such  conditions.     P.  34,  213,  July,  1889. 

Ill  E.  The  ^'Merchants'  Bridge"  over  the  Mississippi  River  at  St. 
Louis,  Mo.,  was  constructed  under  an  act  of  Congress  which  provided 
for  the  forfeiture  of  aU  rights  to  maintain  the  bridge  and  of  all  prop- 
erty therein  in  the  event  of  a  violation  of  the  provisions  against  con- 
solidation or  pooling  of  earnings,  and  that  the  Secretary  of  War  ''shall 
take  possession  of  the  same  in  the  name  and  for  the  use  of  the  United 
States"  (act  of  Sept.  10,  1888,  25  Stat.  474),  held,  on  petition  for  such 
action,  that  although  the  statute  requires  the  Secretaiy  of  War  to  act 
in  an  administrative  way  and  "without  legal  proceedings,"  the  pro- 
cedure should  resemble  that  of  a  court  of  equity  where  remedy  by 
mandamus  or  injunction  is  sought,  and  that  the  owners  of  the  bridge 
should  be  called  Upon  to  show  cause  why  the  bridge  should  not  be 
taken  possession  of  as  directed  by  the  statute. ^  G.  15025,  July  28, 
1903. 

Ill  F.  The  street  railway  companies  of  Duluth,  Minn.,  and  Superior, 
Wis.,  applied  for  permission  to  construct  a  temporary  structure 
of  pUes  and  pontoons  across  the  St.  Louis  River  between  Minne- 
sota and  Wisconsin,  the  structure  to  be  put  on  and  through  the  ice 
after  navigation  had  entirely  closed  ana  to  be  removed  before  the 
openiug  of  navigation  in  the  spring.  Held,  that  the  structure  was  not 
a  bridge  within  the  meaning  of  the  legislation  on  the  subject  and  that 
the  Secretary  of  War  had  authority  to  grant  the  permission  requested. 
0.  705,  Dec,  1894;  Nov.,  1895,  and  Nov.,  1896. 

IV.  The  power  expressly  vested  in  the  Secretaiy  of  War  by  section  4 
of  the  act  of  September  19,  1890  (26  Stat.  426),  to  determine  whether 
a  bridge  is  an  obstruction  to  navigation,  is  of  a  judicial  nature,  not 

1  See  21  Op.  Atty.  Gen.,  293. 

*  After  a  hearing  the  Secretary  of  War  decided,  June  5,  1905,  that  no  occasion  had 
arisen  for  the  action  of  the  Secretary  of  War  under  the  statute. 


NAVIGABLE  WATERS  IV  A.  769 

miiiisterial  merely.^  The  law  makes  liim  the  agent  of  the  United 
States  for  the  purpose  and  vests  liim  with  a  specific  discretion. ^  Held^ 
that  the  power  devolved  pertained  to  him  alone  and  could  not  legally 
be  exercised  by  the  Assistant  Secretary  of  War.^  G.  135,  May,  1890; 
14882,  June  24,  1903. 

IVA.  Under  the  act  of  August  11,  1888  (25  Stat.  400),  it  was 
advised — though  the  statute  did  not  require  it — that  the  Secretary  of 
War,  being  constituted  judge  in  the  first  instance,  would  properly  give 
the  corporation,  etc.,  owning  or  controlling  a  bridge  an  opportunity 
to  be  heard,  and  not  decide  the  question  of  obstruction  or  alteration 
upon  the  report  of  the  engineer  officer  alone.  P.  35, 166,  Sept.,  1889. 
But  it  was  also  held  that  the  notice  was  sufficiently  specific  under  the 
law,  though  it  did  not  indicate  how  the  proposed  alteration  was  to  be 
made ;  that  the  Secretary  of  War,  indeed,  was  not  empowered  to  pre- 
scribe how  the  bridge  should  be  altered,  but  that  the  responsibility  for 
the  proper  alteration  was  wholly  upon  the  corporation.  P.  28,  14, 
Nov.,  1888;  35,  265,  Sept.,  1889.  The  act  of  September  19,  1890, 
section  4,  however,  amended  the  provision  as  to  notice  in  the  act  of 
August  11,  1888,  section  9,  by  requiring  that  the  notice  to  be  given 
to  the  person  or  corporation  owning  or  controlling  a  bridge  which 
obstructs  navigation  to  so  alter  it  as  to  do  away  with  the  obstruction 
"shall  specify  the  changes  required  to  be  made,"  such  party  being 
first  given  a  reasonable  opportunity  to  be  heard."  P.  49,  72,  Sept., 
1891;  G.  14832,  June  24,  1902. 

Held,  that  under  section  18  of  the  act  of  March  3,  1899  (30  Stat. 
1151),  the  jurisdiction  to  determine  whether  a  bridge  is  or  is  not  an 
Unreasonable  obstruction  to  navigation  is  in  the  Secretary  of  War, 
but  that  the  statute  requires  that  in  giving  the  notice  "he  shall 
specify  the  changes  recommended  by  the  Chief  of  Engineers  that  are 
required  to  be  made,"  so  that  in  respect  of  specific  structural  changes 
his  duty  is  to  require  such  modifications  to  be  made  as  have  been 
expressly  recommended  by  the  Chief  of  Engineers,  and  he  has  no 
authority  to  require  other  or  additional  structural  changes  than  those 
S.O  recommended.     G.  22317,  Apr.  15,  1909. 

Un  U.  S.  ?;.  Rider,  50  Fed.  Rep.,  406,  it  was  held  (by  Sage,  U.  S.  Dist.  J.)  that  this 
section  was  unconstitutional  in  delegating  to  the  Secretary  of  War  ''powers  exclu- 
sively vested  in  Congress."  See,  however,  Rider  v.  U.  S.,  178  U.  S.,  251.  At  the  trial 
of  this  case  in  the  circuit  court  there  was  a  division  of  opinion,  but  the  presiding  judge 
charged  the  jury  that  Congress  had  the  constitutional  power  to  confer  upon  the  Sec- 
retary of  War  the  authority  to  determine  when  a  bridge,  such  as  the  one  in  question, 
was  an  unreasonable  obstruction  to  navigation,  and  on  writ  of  error  to  the  Supreme 
Court  the  judgment  was  reversed,  without  deciding  this  question,  on  the  ground 
that  the  municipal  officers  controlling  the  bridge  did  not  have  public  moneys  which 
could  lawfully  be  applied  to  the  purpose  and  could  not  obtain  such  moneys  within 
the  time  specified  in  the  notice.  In  an  able  and  exhaustive  opinion  by  Acting 
Attorney  General  Dickenson,  dated  Oct.  24,  1896,  it  was  held  that  this  act  was  not  an 
uncqnsitutional  delegation  of  legislative  function;  that  Congress  is  not  required  to 
consider  each  case  of  alleged  obstruction,  but  may  generally  define  the  offense  and 
leave  the  facts  to  be  determined  by  a  court  or  special  tribunal.  21  Opins.  Atty.  Gen., 
430,  and  authorities  cited. 

2  Miller  v.  Mayor  of  New  York,  109  U.  S.,  385,  393. 

3  See  XII  Comp.  Dec,  483;  ibid.,  484.  Where  the  notice  purports  to  be  from  the 
Secretary  of  War  it  is  sufficient  although  signed  by  the  Assistant  Secretary.  Hannibal 
Bridge  Co.  v.  U.  S.,  221  U.  S.,  194. 

31106°— 12 49 


770  NAVIGABLE   WATEES   IV   A  1. 

IV  A  1.  Before  the  notice  to  alter  a  bridge  is  given,  the  party 
owning  or  controlling  the  same  is  entitled,  under  the  act  of  1890,  sec- 
tion 4,  to  be  heard  on  the  changes  specified  in  the  notice  as  well  as  on 
the  time  in  which  they  are  to  be  made;  and  unless  an  opportunity 
for  such  hearing  has  been  given,  the  party  will  not  be  liable  to  the 
penalties  specified  in  section  5  of  the  said  act.  G.  798,  Dec,  1894; 
1511,  Nov.,  1895;  1^832,  June  24,  1903. 

IV  A  2.  Held,  under  section  18  of  the  act  of  March  3,  1899,  on  the 
question  of  whether  proceedings  to  alter  a  bridge  could  be  begun 
prior  to  the  time  the  bridge  becomes  an  unreasonable  obstruction  to 
navigation,  that  under  the  statute  this  notice  is  to  be  given  when  the 
bridge  "is"  an  unreasonable  obstruction.  G.  14752,  June  25,  1903. 
Where,  therefore,  a  bridge  is  not  an  unreasonable  obstruction  to 
navigation,  the  Secretary  of  War  can  not  initiate  proceedings  for  its 
alteration  on  the  ground  that  it  will  obstruct  navigation  at  some 
future  time,  whether  definite  or  indefinite.  G.  22317,  Aug.  28,  1908, 
and  Apr.  15, 1909. 

IV  A  3.  With  respect  to  the  alteration  of  a  railway  bridge  across 
Pablo  Creek,  Fla.,  it  appeared  that  the  construction,  under  authority 
of  the  State  of  Florida,  of  a  proposed  canal  to  connect  the  waters  of 
the  creek  with  those  of  the  St.  Johns  River,  would  have  the  effect  of 
largely  increasing  commerce  on  the  creek;  held,  with  regard  to  the 
question  of  whether,  in  determining  the  character  of  the  alterations, 
tnis  increase  of  commerce  on  the  creek  could  properly  be  considered, 
that  such  increase  is  to  be  treated  as  a  part  of  the  public  commerce 
in  respect  to  the  right  of  public  navigation  on  this  creek;  that  any 
changes  required  to  be  made  in  the  bridge  should  have  in  view  this 
increase  as  well  as  the  commerce  now  existing  on  the  creek;  and  that 
in  authorizing  bridges  it  is  usual  to  take  into  consideration,  not  only 
existing  commerce  on  the  stream,  but  also  the  probable  future  require- 
ments of  the  same.  ^  G.  22317,  Aug.  28,  1908. 

IV  B.  Especially  in  view  of  the  fact  that  the  giving  of  the  notice 
to  alter,  under  the  act  of  1890,  section  4,  is  a  proceeding  preliminary 
and  necessary  to  the  fixing  of  criminal  liability  upon  a  failure  to  make 
the  alteration,  such  notice  should  be  strict  and  precise.^  It  should  set 
forth  the  situation  and  character  of  the  bridge  so  as  clearly  to  identify 
it,  stating  the  name  of  the  owner,  etc.,  and  specify  fully  the  change  or 
changes  ^'required  to  be  made"  as  to  height,  width  of  span  or  draw 
opening,  etc. ;  and  it  should  appear  from  the  notice,  or  in  connection 
therewith,  that  the  party  has  had  a  ''reasonable  opportunity  to  be 
heard."     P.  43,  431,  Nov.,  1890;  G.  14832,  June  24,  1903. 

IV  C.  Held,  that  the  provision  of  the  act  of  August  11,  1888  (25 
Stat.  400),  as  to  the  proceedings  to  be  taken  against  a  corporation 
refusing  after  due  notice  under  that  act  to  alter  a  oridge,  was  repealed 
by  that  of  the  act  of  September  19,  1890,  and  that  such  corporation 
could  not  be  prosecuted  without  a  new  notice  under  the  existing 
statute,  followed  by  a  failure  to  comply.  An  offender  can  not  be 
punished  under  a  penal  act  which  has  expired  or  been  repealed  prior 
to  conviction.^  So,  advised  that  proceedings  initiated  under  the  act 
of  1888  be  commenced  de  novo.     P.  43,  431,  Nov.,  1890;  49,  72,  Sept., 

'  "A  purely  statutory  authority  or  ri^ht  must  be  pursued  in  strict  compliance  with 
the  terms  of  the  statute."    Bishop,  Written  Laws,  sec.  119. 
2  Endlich,  Interpretation  of  Statutes,  435. 


NAVIGABLE    WATERS   IV  D.  771 

1891.  Under  the  act  of  1890,  section  4,  it  is  made  the  duty  of  the 
Secretary  of  War  to  initiate  proceedings  (by  notifying  the  proper  dis- 
trict attorney)  only  in  case  of  alterations,  not  made,  of  completed 
bridges;  as  to  other  obstructions,  the  duty  to  enforce  the  provisions 
of  the  act  is  devolved  upon  the  ''officers  and  agents"  specified  in  sec- 
tion 11.     P.  62,  343,  Mar.,  1892. 

IV  D.  Where,  after  notice  to  alter  a  bridge,  as  constituting  an 
obstruction  to  navigation,  the  bridge  companv  owning  the  same  has 
failed,  and  the  property  has  passed  into  the  hands  of  a  receiver,  the 
proper  method  of  ])rocuring  tlie  alteration  to  be  made  is  by  motion 
m  the  proper  court  for  an  order  requiring  the  receiver  to  make  it. 
P.  37,  404,  Jan.,  1890.  In  such  a  case  neither  the  owner  nor  the 
receiver  can  be  made  personally  amenable  for  failure  to  alter.  P.  60, 
118,  June,  1893.  A  similar  proceeding  is  to  be  pursued  where  a 
receiver  has  been  appointed  before  notice  or  before  the  obstruction 
was  developed.  Thus  where  a  bridge,  on  the  line  of  a  railroad,  which 
liad  been  placed  under  receivers,  was  discovered  to  be  an  obstruc- 
tion to  navigation  because  of  having  no  draw,  advised  that  the  Secre- 
tary of  War  apply  to  the  Attorney  General  to  have  the  case  brought 
by  tlie  proper  motion  to  the  attention  of  the  court  by  which  the 
receivers  were  appointed,  whose  duty  it  then  would  be  to  order  the 
receivers  to  make  the  alteration  out  of  the  income  accruing  from  the 
operation  of  the  road.*  And  held  that  it  would  not  be  necessary  to 
notifv  the  receiver  as  such,  since  without  the  order  of  the  court  he 
could  not  legally  incur  the  requisite  expense  for  the  purpose. ^  P.  60, 
118,  supra;  62,^55,  Oct.,  1893;  64,  399,  Apr.,  1894^ 

IV  E.  Wliere  the  plans  of  a  bridge  had  been  approved,  under 
section  7  of  the  act  of  September  19,  1890  (26  Stat.  454),  without 
reserving  the  right  to  require  changes,  and  as  it  was  proposed,  in  view 
of  the  widening  of  the  river  under  authority  of  Congress,  to  serve 
notice  on  the  bridge  owner  to  alter  the  same,  held  that  sections  4  and 
5  of  the  same  act  vested  the  Secretary  of  War  with  jurisdiction  in 
the  matter  of  requiring  changes  in  any  bridge  ''now  constructed  or 
which  may  be  hereafter  constructed  over  any  navigable  waterway 
of  the  United  States,"  so  that  such  bridge,  when  altered,  may  not  be 
"an  unreasonable  obstruction  to  the  free  navigation  of  such  waters," 
and  that  under  the  combined  operation  of  the  two  provisions  the 
approval,  although  not  reserving  the  right,  was,  nevertlieless,  sub- 
ject to  such  future  alterations  in  the  bridge  as  might  be  required  to 
render  navigation  through  it  reasonably  free,  easy,  and  unob- 
structed.3     C.  27747,  Feb.  13,  1911. 

IV  F.  Where  a  bridge  has  been  reported  an  unreasonable  obstruc- 
tion to  navigation  the  Secretary  of  War  may  proceed  under  section  4 
of  the  act  of  September  19,  1890,  to  give  the  owners  thereof  a  liearing 
with  a  view  to  notifying  them  to  make  the  necessary  alterations.  But 
if  in  tlie  meantime  the  owners  waive  hearing  and  notice  and  submit 
plans  of  alterations,  the  Secretary  may  approve  the  same;  and  his 
approval  will  in  effect  prescribe  that  the  bridge  be  altered  as  indicated 
by  the  plans.  This  procedure  has  been  followed  in  a  number  of  cases. 
C.  1157,  Mar.,  1895;  24,  818,  May  7,  1909. 

1  See  U.  S.  V.  St.  Louis,  A.  &  T.  R.  Co.,  43  Fed.  Rep.,  414. 

2  Cowdrey  v.  Galveston,  etc.,  R.  Co.,  93  U.  S.,  352. 

^  See  opinion  of  the  Attorney  General  dated  June  9, 1911(29  Op.,  139, 149). 


772  NAVIGABLE  WATERS  IV  G. 

IV  G.  The  acts  of  July  5,  1884,  chapter  229,  section  8,  and  August 
11,  1888,  chapter  860,  section  9,  in  providing  for  the  removal  of  ob- 
structions to  navigation  caused  by  oridges,  by  requiring  their  altera- 
tion, etc.,  do  not  empower  the  Secretary  of  War  to  resort  to  mihtary 
force  to  effect  the  purpose.  They  leave  th  e  execution  of  their  provisions 
to  the  law  officers  and  the  courts.  They  make  it  the  duty  of  the 
Secretary  of  War,  whenever  the  owners  or  responsible  parties,  after 
having  been  notified  to  do  so,  neglect  to  so  alter  a  bridge  as  to  abate 
the  obstruction,  to  apprise  the  Attorney  General,  who  is  thereupon 
required  to  initiate  the  proceedings  specified  in  the  statute.  P.  4^ 
85,  July,  1890. 

IV  H.  The  department  of  public  works  of  the  city  of  New  York 
requested  that  the  necessary  steps  be  taken  to  permit  that  department 
to  close  the  drawbridge  across  Harlem  River  at  Madison  Avenue  for 
not  to  exceed  two  weeks  to  make  needed  repairs.  Remarked  that 
there  is  no  statute  of  the  United  States  which  m  terms  empowers  the 
Secretary  of  War  to  authorize  the  closing  of  a  drawbridge  during  its 
repair,  but  recommended  that  the  applicant  be  advised  that  no  steps 
would  be  taken  by  the  War  Department  in  regard  to  the  bridge  as  an 
obstruction  to  navigation  during  the  time  necessary  for  its  repair. 
C.  S299,  June,  1897. 

V.  Section  10  of  the  act  of  March  3,  1899  (30  Stat.  1151)  makes  it 
unlawful  to  construct  anjr  wharf,  pier,  etc.,  in  any  navigable  water 
of  the  United  States  outside  established  harbor  fines  or  where  none 
have  been  established,  except  on  plans  recommended  by  the  Chief  of 
Engineers  and  authorized  by  the  Secretary  of  War,  etc.  A  permit 
under  this  statute  confers  on  the  grantee  no  right  or  franchise  for  the 
structure  or  interest  in  the  shore  or  bed  of  the  stream  where  it  is  to 
be  built,  but  simply  makes  the  authority  required  therein  a  condition 
precedent  to  the  exercise  of  such  right  as  the  applicant  may  have 
with  respect  to  its  effect  on  commerce  and  navigation.^  It  can  not 
in  any  sense  be  regarded  as  vesting  in  the  grantee  any  power  to  avoid 
or  contravene  State  and  local  laws  or  individual  privileges  and  immu- 
nities held  by  other  parties  thereunder.  C.  8360,  June,  1900;  28869, 
Aug.  23,  1911;  29359,  Jan.  9,  1912.  The  jurisdiction  to  approve 
plans  for  structures  in  navigable  waters  under  this  section  is  not 
vested  in  the  Secretary  of  War  alone  but  in  the  Secretary  of  War  and 
the  Chief  of  Engineers,  each  of  whom  is  charged  in  the  statute  with 
an  independent  exercise  of  discretion.  Held,  therefore,  that  a  per- 
mit can  not  lawfully  issue  until  the  Chief  of  Engineers  has  approved 
or  recommended  the  proposed  works.     C.  21193,  Feb.  12,  1907. 

V  A.  HeU  that  section  10  of  the  act  of  March  3,  1899  (30  Stat. 
1151),  does  not  limit  the  discretion  of  the  Secretary  of  War  as  to  the 
character  of  the  permit  which  he  may  issue  under  the  authority 
conferred  therein;  and  therefore  the  permission  may  be  formal  as  to 
piers,  wharves,  etc.,  or  by  way  of  letter,  as  to  booms,  ferry  cables, 
pipe  lines,  etc.  {C.  14890,  June  30, 1903),  or  by  way  of  waiver  of  ob- 
jections. C.  27899,  Nov.  7,  1911.  Further  held,  as  to  the  taking  of 
water  from  the  Rio  Grande,  that  the  permit  may  be  revocable  at  will 
absolutely;  may  be  limited  either  as  to  amount  or  by  the  condition 
of  the  river  or  the  season  of  the  year;  and  may  be  so  worded  as  to 
impose  notice,  upon  all  subtakers  or  assignees,  of  the  restrictions  of 

1  Cummiiigs  v.  Chicago,  188  U.  S.  410. 


NAVIGABLE  WATERS  V  B.  773 

the  permit.  C.  27899,  Nov.  7  and  8,  1911.  Held,  further,  that  the 
riparian  owners'  rights  in  regard  to  the  use  of  the  navigable  stream 
wnatever  they  may  be  under  State  law,  are  subject  to  the  paramount 
authority  of  the  United  States  to  regulate  the  matter,  so  that  any 
withdrawal  may  be  prohibited  which  would  injure  the  navigable 
capacity  of  the  stream.     C.  27899,  Nov.  7  and  8,  1911. 

V  B.  Held,  with  reference  to  the  question  of  whether  the  Secretary 
of  War  may  legally  authorize  the  Chief  of  Engineers  to  permit  the 
placing  of  log  booms,  fish  weirs,  and  fish  traps  in  navigable  waters  of 
the  United  States,  that  while  it  is  well  settled  that  discretionary 
duties  are  not  a  proper  subject  of  delegation,  the  action  proposed 
should  not  be  regarded  as  a  delegation  of  discretionary  duties,  but 
as  the  approval  by  the  Secretary  of  War  of  such  structures  in  advance, 
charging  the  Chief  of  Engineers  with  the  duty  of  communicating  to 
the  applicants  the  fact  that  the  Secretary  of  War  has  approved  the 
placing  of  the  structures  in  the  navigable  waters.  C.  16336,  May  13, 
1904.  Similarly  held,  with  reference  to  the  extension  of  the  authority 
to  include  routine  applications  for  permits  for  excavating  approaches 
to  wharves;  dredging  to  obtain  sand  or  gravel  for  commercial  pur- 
poses, and  to  deposit  dredged  materials  under  the  usual  conditions  for 
such  deposits;  placing  of  wires,  cables,  or  pipe  lines;  removal  of  logs, 
etc.  a  16336,  Nov.  19,  1910,  and  Feb.  18,  1911;  25049,  July  5, 1910. 
Where,  however,  it  was  proposed  to  authorize  the  local  engineer 
officer  to  permit  the  ''driving  of  piles,  or  the  establishment  of  other 
structures  for  mooring  purposes,  in  Newport  Harbor,  in  such  manner 
and  at  such  points  as,  in  his  opinion,  will  not  seriously  interfere  with 
navigation,  held  that  the  duty  imposed  on  the  Secretary  of  War  by 
the  statute  is  discretionary,  not  ministerial,  and  can  not  legally  be 
delegated.!     C.  7767,  Mar.  7  and  16,  1900. 

V  C.  On  the  protest  against  granting  permission  to  the  Union  Oil 
Co.  for  a  pipe  line  in  the  Pacific  Ocean  at  Santa  Barbara,  Cal.,  on  the 
ground  that  a  certain  amount  of  oil  would  be  spilled  in  transfer  to 
the  pipe  line  and  would  later  reach  shore,  resulting  in  injury  to  the 
bathing  facilities  for  which  Santa  Barbara  is  famous,  held  that  sec- 
tion 10  of  the  act  of  March  3,  1899  (30  Stat.  1151),  under  authority 
of  which  the  permit  would  be  given,  does  not  give  to  any  applicant 
the  franchise  for  the  proposed  structure  but  presupposes  that  the 
appHcant  has  a  franchise,  for  the  same ;  and  ia  order  that  the  struc- 
ture may  not  unreasonably  obstruct  navigation,  forbids  its  erection 
except  upon  plans  to  be  approved  by  the  Chief  of  Engineers  and  the 
Secretary  of  War;  and  that  the  jurisdiction  conferred  on  the  Chief  of 
Engiueers  and  the  Secretary  of  War  should  be  exercised  solely  with 
reference  to  the  interests  committed  to  their  charge,  i.  e.,  the  pro- 
tection of  the  navigable  waters  of  the  United  States  from  unreasona- 
ble obstruction  to  commerce.^     C.  24527,  Feb.  25,  1909.     Held,  how- 

^  Birdsall  v.  Clark  et  al.  (73  N.  Y.,  76);  Metchem  on  Public  Officere,  sec.  567; 
Throop's  Public  Officers,  sec.  672. 

^  This  view  was  concurred  in  by  the  Attorney  General  in  27  Op.  Atty.  Gen.,  284. 
See  also  Montgomery  v.  Portland  (190  U.  S.,  89),  where  it  was  held  that  "under 
existing  enactments  the  right  of  private  persons  to  erect  structures  in  a  navigable 
water  of  the  United  States  that  is  entirely  within  the  limits  of  a  State  is  not  complete 
and  absolute  without  the  concurrent  or  joint  assent  of  both  the  Federal  Government 
and  the  State  government,"  citing  Cummings  v.  City  of  Chicago  (188  U.  S.,  410), 
and  Willamette  Bridge  Co.  v.  Hatch  (125  U.  S.,  1).  See  also  North  Shore  Boom  Co. 
V.  Nicomen  Boom  Co.  (212  U.  S.,  406),  and  Gring  v.  Ives  (222  U.  S.,  365). 


774  NAVIGABLE   WATERS  V   C  1. 

ever,  in  the  case  of  an  application  for  permission  to  place  an  adver- 
tising sign  off  the  coast  at  Atlantic  City  by  an  applicant  who  was  not 
an  owner  of  shore  property,  that  the  Secretary  of  War  might  properly 
require,  as  a  condition  precedent  to  granting  the  permission,  a  show- 
ing that  the  applicant  was  authorized  to  construct  the  same.  0. 
26678,  May  9,  1910. 

VC  1.  With  reference  to  the  question  of  the  jurisdiction  of  the 
Commissioners  of  the  District  of  Columbia  under  the  wharf  act  of 
March  3,  1899  (30  Stat.  1377),  held  that  this  jurisdiction  is  to  be 
exercised  subject  to  the  authority  conferred  on  the  Secretary  of  War 
and  the  Chief  of  Engineers  by  the  general  legislation  of  the  act  of 
March  3,  1899,  supra,  so  that  all  applications  which  contemplate 
work  outside  the  harbor  lines  should  be  submitted  for  the  recommen- 
dation of  the  Chief  of  Engineers  and  the  authorization  of  the  Secre- 
tary of  War.     C.  13900,  Ma;y,  27,  1903.^ 

V  D.  Held  that  under  section  3  of  the  river  and  harbor  appropriation 
act  of  July  13,  1892  (27  Stat.  88),  the  Secretary  of  War  was  empow- 
ered to  authorize  the  laying  of  a  water  main  across  the  bed  of  the 
channel  of  any  navigable  water  of  the  United  States.  P.  65,  352, 
June,  1894. 

V  D  1 .  Upon  an  appUcation  by  the  City  of  Boston  to  the  Secretary 
of  War  for  a  Hcense  to  construct  and  maintain  siphons  for  water  pipes 
at  Warren  Bridge  in  the  waters  of  Charles  River,  held  that  under  the 
authority  given  him  by  the  river  and  harbor  act  of  1888  to  require 
the  removal  of  obstructions  to  free  navigation,  at  bridges,  the  Secre- 
tary might  properly  ^rant  such  a  license  as  a  form  of  assent  to  the 
construction  as  not  likely  to  interfere  with  navigation.  P  29,  343, 
Jan.,  1889. 

V  D  2.  The  construction,  without  the  authority  of  the  Secretary  of 
War,  of  uners  in  a  harbor  which  is  navigable  water  of  the  United 
States  outside  of  established  harbor  lines  (or  where  there  are  no  har- 
bor lines  estabHshed)  is,  under  section  7,  act  of  September  19,  1890 
(26  Stat.  454),  unlawful  when  the  same  will  be  detrimental  to  naviga- 
tion. And  whether  or  not  the  persons  who  constructed  such  weirs 
had  any  Hcense  from  the  town  is  immaterial.    P,  53,  45,  Apr.,  1892. 

V  D  3.  A  fish  weir  so  constructed  as  in  a  measure  to  obstruct  the 
navigation  of  navigable  waters  can  not  be  legally  placed  in  such 
waters  without  the  authority  of  the  Secretary  of  War,  who,  by  section 
7,  act  of  September  19,  1890,  is  empowered  to  grant  permission  for 
the  purpose.  And  so  of  a  boom  desired  to  be  placed  m  a  navigable 
river.    P.  58,  347,  Mar.,  1893. 

V  E.  The  act  of  August  17,  1894  (28  Stat.  338),  provides  (sec.  6) 
that  "it  shall  not  be  lawful  to  place,  discharge,  or  deposit,  by  any 
process  or  in  any  manner,  ballast,  refuse,  dirt,  *  *  *  or  any  other 
matter  of  any  kind  other  than  that  flowing  from  streets,  sewers,  and 
passing  therefrom  in  a  hquid  state,  in  the  waters  of  any  harbor  or 
river  of  the  United  States  for  the  improvement  of  which  money  has 
been  appropriated  by  Congress  elsewhere  than  within  the  limit3| 
defined  and  permitted  by  the  Secretary  of  War."  And  any  andj 
every  such  act  is  made  a  misdemeanor  punishable  by  fine  and  impris- 
onment, etc.  This  statute  prohibits  the  discharging  or  depositing  of 
matter  "in  the  waters  of  any  harbor  or  river  for  the  improvement  of 
which  money  has  been  appropriated  by  Congress.''     As  the  statute  is 


NAVIGABLE   WATEBS  V  E  1.  775 

a  penal  one,  and  therefore  subject  to  the  rule  of  strict  construction, 
this  prohibition  should  not  be  construed  to  extend  to  the  tributaries 
of  such  waters,  notwithstanding  the  pollution  of  the  tributaries  would 
result  in  injury  to  said  waters.  C,  581,  Oct.,  1894;  21290,  Nov.  14, 
1907. 

V  E  1 .  Held  that  the  prohibition,  by  section  6,  act  of  September 
19,  1890  (26  Stat.  453),  of  the  dumping  of  ballast  could  not  legally 
be  enforced  in  New  York  Harbor  beyond  the  3-mile  limit.*  P.  51, 
154,  Dec,  1891;  C.  21290,  Mar.J4,  1907. 

V  E  2.  Held,  under  section  3  of  the  act  of  July  13, 1892  (27  Stat.  88), 
that  the  durnping,  in  Lake  Michigan  opposite  Chicago,  of  material  from 
the  Chicago  Drainage  Canal  so  as  to  cause  shoaling,  would  be  a  viola- 
tion of  the  section,  tlie  locality  being  regarded  as  a '  *  roadstead  "  within 
the  meaning  of  the  statute;  and  that  the  Secretary  of  War  could 
legally  designate  limits  outside  which  dredgings  might  be  deposited 
in  the  waters  of  the  lake.     C.  1587,  July  24, 1895. 

V  E  3.  On  the  question  raised  as  to  the  authority  of  the  Secretaiy 
of  War,  under  the  act  of  June  29,  1888  (25  Stat.  209),  a»  amended 
by  the  act  of  August  18,  1894  (28  Stat.  338),  which  forbids  deposits, 
except  from  sewers  in  liquid  state,  in  the  tidal  waters  of  the  harbor 
of  New  York  or  its  adjacent  or  tributary  waters  elsewhere  than  as 
designated  by  the  supervisor  of  the  haroor  under  the  direction  of 
the  Secretary  of  War,  to  prevent  the  dumping  of  garbage  where  it 
would  be  liable  to  be  washed  ashore  along  tne  New  Jersey  coast,  lield 
that  while  police  jurisdiction  is  ordinarily  confined  within  the  3-mile 
limit,  many  States  assume  a  wider  zone  in  defining  offenses  against 
their  revenue  laws,  and  it  would  seem  that  they  might  with  equal 
propriety  do  so  for  the  protection  of  their  harbors;  that  by  the  above 
legislation  Congress  intended  to  conserve  the  sanitation  oi  the  harbor 
and  of  the  adjacent  coast;  and  that  it  would  be  competent  for  the 
supervisor  of  the  harbor,  with  the  approval  of  the  Secretary  of  War, 
to  designate  a  place  of  deposit  beyond  the  3-mile  limit  at  a  point 
sufficiently  remote  to  insure  not  only  the  protection  of  the  harbor 
against  obstructions  to  navigation  but  also  to  conserve  the  sanitation 
of  the  adj acent  coast.     C.  20031 ,  July  1 1 ,  1906. 

V  F.  No  executive  department  of  the  Government  can  give  private 
parties  the  exclusive  privilege  of  harvesting  ice  from  any  part  of  a 
navigable  river  of  the  United  States.     C.  1817,  Nov.,  1895. 

V  G.  With  reference  to  the  threatened  removal,  under  the  authority 
of  the  State  of  Illinois,  of  certain  State  dams  the  removal  of  which 
would  modify  the  capacity  of  the  Illinois  River,  a  navigable  water  of 
the  United  States,  lield,  on  the  question  whether  such  threatened 
removal  could  be  prevented,  that  under  section  10  of  the  act  of 
March  3,  1899  (30  Stat.  1151),  such  removal  would  be  unlawful 
without  the  proper  authorization  of  the  Secretary  of  War,  upon  the 
favorable  recommendation  of  the  Chief  of  Engineers.  C.  14285,  Mar. 
25,  1908. 

V  H.  The  diversion  of  water  from  the  Niagara  River  above  the 
falls  was  regulated,  prior  to  the  ratification  of  the  treaty  of  January 
11,  1909  (36  Stat.  pt.  2,  p.  2448),  by  the  act  of  June  29,  1906  (34 
Stat.  626),  which  was  extended  in  its  operation  by  joint  resolution 
of  March  3,  1909  (35  Stat.  1169).     The  act,  as  extended,  expired  by 

^  Compare  the  concurring  opinion  of  the  Attorney  General  in  20  Op.  293. 


776  NAVIGABLE   WATERS  VI. 

its  own  limitation  June  29,  1911.*  Held  that  the  treaty  of  January 
11,  1909  (supra),  being  of  later  date  and  of  precisely  equal  obligatory 
force,  replaces  the  provisions  of  the  act  of  June  29,  1906,  in  all  inci- 
dents in  which  it  confhcts  with  said  act;  that  the  licenses  given  under 
said  act  will  expire,  each  in  accordance  with  its  terms,  on  June  29, 
1911,  after  which  any  action  in  respect  to  the  issue  of  new  licenses 
will  have  to  be  regulated  by  article  5  of  said  treaty  of  January  11, 
1909;  and  in  respect  to  the  appointment  of  commissioners  under  the 
treaty  that  the  requirements  of  said  treaty  were  fully  operative,  and 
no  further  legislation  would  be  necessary  to  warrant  the  appoint- 
ments, provision  having  been  made  by  the  act  of  June  25,  1910  (36 
Stat.  766),  for  the  expenses  of  commission  incurred  under  the  treaty 
for  the  fiscal  year  ending  June  30,  1911.     C.  19094,  Jan.  11,1911. 

Held,  under  the  act  of  June  29,  1906  (34  Stat.  626),  forbidding  the 
diversion  of  water  from  the  Niagara  River  except  as  authorized 
therein,  that  in  respect  to  the  withdrawal  of  water  by  the  city  of 
Lockport,  N.  Y.,  for  domestic  and  sanitary  purposes  it  was  ques- 
tionable whether  the  proviso  of  said  act,  that  the  prohibition  should 
not  apply  to  diversion  for  '^  sanitary  or  domestic  purposes,  or  for 
navigation,  the  amount  of  which  may  be  fixed  from  time  to  time  by 
the  Congress  of  the  United  States  or  hy  the  Secretary  of  War  under 
its  direction,"  the  Secretary  of  War  could  not  authorize  such  diversion 
except  in  pursuance  of  appropriate  enabling  legislation.^  Held,  how- 
ever, that  permission  for  the  necessary  intake  could  be  given  under 
the  act  of  March  3,  1899,  pending  the  obtaining  of  such  legislation. 
0.  20607,  Oct.  25,  1906. 

VI.  On  the  general  question  of  the  proper  location  of  harbor  lines, 
lield,  that  they  should  be  kept  as  near  to  the  shore  as  the  reasonable 
demands  of  navigation,  present  or  prospective,  may  require,  since 
when  they  are  once  established  and  reclamation  worK  and  structures 
have  been  started  in  rear  of  the  same,  it  will  be  exceedingly  difficult 
to  afterwards  move  the  lines  farther  toward  the  shore  across  the  exist- 
ing structures.     C.  282^3,  Apr.  29,  1911. 

VI  A.  Held,  under  section  12  of  the  act  of  September  19,  1890  (26 
Stat.  455),  authorizing  the  Secretary  of  War  to  establish  harbor  lines, 
that,  in  establishing  a  harbor  line  in  the  harbor  of  Bridgeport,  Conn., 
he  was  authorized  to  prescribe  regulations  under  which  the  littoral 
owners  (who,  by  the  laws  of  Connecticut,  have  a  right  of  property  in 
the  flats  on  their  fronts,  and  may  wharf  or  dock  out  to  the  navigable 
channel  so  as  to  avail  themselves  of  the  use  of  it)  should  have  their 
vested  rights  recognized  and  protected ;  that  while  he  might,  for  the 
protection  of  navigation,  regulate  their  building  out  to  the  channel, 
he  could  not  prohibit  their  doing  so,  or  condemn,  or  deprive  them  of, 
their  property.  But  held,  that  his  authority  for  establishing  a  harbor 
line — which  consists  in  locating  an  imaginary  line  beyond  which 
wharves,  etc.,  shall  not  be  extended  or  deposits  dumped — could  be 
exercised  only  so  far  as  necessary  for  the  protection  of  the  navigable 
channel  as  an  interstate  waterway,  and  not  to  protect  mere  local 
traffic.     P.  62,  211,  Feb.,  1892;  51,  132,  Dec,  1891. 

1  Provisions  of  act  of  June  29,  1906,  reenacted  and  extended  to  Mar.  1,  1912  (37 
Stat.  43). 

2  The  Secretary  of  War  held  that  the  exception  in  the  said  act  of  June  29,  1906, 
referred  "as  well  to  authority  previously  as  to  that  which  may  be  conferred  by  subse- 
quent statute,"  and  directed  that  the  necessary  permit  be  issued. 


NAVIGABLE  WATERS  VI  A  1.  777 

VI  A  1.  With  reference  to  the  establishment  of  harbor  lines  in 
Sheepshead  and  Jamaica  Bays,  on  question  raised  as  to  the  legal 
authority  of  the  United  States  to  establish  harbor  linos  in  navigable 
waters  below  hi^h-water  mark  at  points  where  the  same  are  not  navi- 
gable in  fact,  hddj  that  the  authontv  of  the  United  States  to  improve 
navigable  waters  is  not  limited  to  the  parts  of  such  waters  which  are 
navigable  in  fact,  but  extends  to  all  parts  of  a  navigable  waterway,  so 
that  new  channels  may  be  dredged,  or  the  erection  of  structures  pre- 
vented which  would  interfere  with  the  navigable  waterway  as  a  whole ; 
and  that  any  title  of  a  State  or  of  a  private  grantee  to  submerged  areas 
or  to  tide  lands  below  high-water  mark  would  be  held  subordipate  to 
the  authority  of  the  United  States  to  take  and  use  the  same,  without 
compensation  to  the  ownere,  for  any  purpose  in  aid  of  navigation; 
and  that  therefore  there  could  be  no  question  of  the  authority  to 
approve  harbor  lines  as  recommended,  if  regarded  as  reasonably  nec- 
essaiy  for  the  preservation  and  protection  of  the  harbor.^  G.  2824.3, 
Apr.  29,  1911.  Held,  further,  on  the  question  whether  the  lines  rec- 
ommended were  reasonably  necessary  for  the  protection  of  the  harbor, 
that  the  fact  that  the  lines  had  been  recommended  by  the  United 
States  Harbor  Line  Board,  after  extended  inquiry,  in  connection  with 
the  application  of  the  local  dock  commission  for  their  establishment 
on  the  lines  proposed,  might  properly  be  regarded  as  establishing  this 
point.     C.  28243,  Apr.  29,  1911. 

VI  A  2.  Held,  that  the  fact  that  harbor  lines  had  been  established 
in  particular  waters  would  not  prevent  the  Secretary  of  War  from  re- 
establishing them  along  different  hnes,  where  such  action  is  regarded 
as  essentisd  to  the  preservation  and  protection  of  the  harbor.*  C. 
4557,  July  9,  1898;  5097,  Oct.  8,  1898;  5238,  Nov.  3,  1898. 

VI  B.  Held  that  the  river  and  harbor  act  of  August  11, 1888,  sec- 
tion 12,  did  not  make  the  approval  of  the  Secretary  of  War  essential 
to  the  establishment  by  a  State  of  harbor  Unes  on  its  internal  navi- 
gable waters,  and  therefore  that,  until  the  United  States  exercises 
control  in  the  manner  provided  for  by  section  12  of  said  act,  the  State 
of  Wisconsin  was  empowered,  through  the  municipality  of  Duluth,  to 
change  and  regulate  the  harbor  lines  of  Duluth  Harbor  without  such 
approval.3    P.  33,  308,  July,  1889. 

VII.  The  river  and  harbor  act  of  June  14,  1880  (21  Stat.  180),  makes 
it  the  duty  of  the  Secretary  of  War,  on  being  satisfied  that  a  sunken 
vessel  obstructs  navigation,  to  give  30  days'  notice,  to  all  persons  in- 
terested in  the  vessel  or  cargo,  of  his  purpose  to  cause  tne  same  to 

^  See  Philadelphia  Co.  v.  Stimson  (223  U.  S.,  605),  where  the  court  held,  with  ref- 
erence to  the  change  by  the  Secretary  of  War  in  1907  of  the  harbor  lines  in  the  back 
channel  of  the  Ohio  River  at  Brunot's  Island  so  as  to  make  the  line  coincide  with  the 
actual  high-water  mark,  no  improvements  having  been  made  since  the  line  was  orig- 
inally established  in  1895,  that  such  change  was  within  the  authority  of  the  Secretary 
of  War;  that  the  title  to  tne  soil  under  navigable  waters  was  "subject  to  the  authority 
of  Congress  under  the  Constitution  of  the  United  States";  and  that  "the  exercise  of 
this  power  could  not  be  fettered  by  any  grant  made  by  the  State  of  the  soil  which 
formed  the  bed  of  the  river  or  by  any  authority  conferred  by  the  State  for  the  creation 
of  obstructions  to  its  navigation." 

2  See  Philadelphia  Co.  v.  Stimson  (223  U.  S.,  605),  referred  to  in  note  to  VI  A  1, 
ante,  in  which  the  court  said:  "That  officer  (the  Secretary  of  War)  did  not  exhaust  his 
authority  in  laying  the  lines  first  established  in  1895,  but  was  entitled  to  change  them, 
as  he  did  change  them  in  1907,  in  order  more  fully  to  preserve  the  river  from  obstruc- 
tion." 

3  See  County  of  Mobile  v.  Kimball,  102  U.  S.,  691;  and  Gring  v.  Ives,  222  U.  S.,  365. 


778  NAVIGABLE  WATERS  VII  A. 

be  removed  unless  removed  by  the  persons  interested  as  soon  there- 
after as  practicable,  before  himself  proceeding  to  take  measures  for  its 
removal  under  the  act.  If  the  removal  be  eifected  by  the  Secretary 
of  War,  the  act  requires  that  the  vessel  and  cargo  shall  be  sold  at 
auction  and  the  proceeds  deposited  in  the  Treasury.  Under  this 
legislation — especially  in  view  of  the  fact  that  the  act  authorizes  the 
taking  possession  of  the  property  of  private  individuals  and  the  dis- 
posing of  it  without  compensation  to  the  owners — held  that  the  notice 
should  be  strictly  given  to  all  interested,  the  owners  of  the  cargo  as 
well  as  the  vessel,  unless  indeed  such  notice  were  waived,  in  which 
case  the  waiver  should  be  definite  and  express  and  joined  in  by  all  the 
interested  parties.     P.  35,  466,  Oct.,  1889;  C.  IS^U,  Oct.  29,  1902. 

VII  A.  In  view  of  the  provisions  of  section  20  of  the  act  of  March 
3,  1899  (30  Stat.  1154),  relating  to  the  removal  of  sunken  or  grounded 
craft  and  vesting  authority  in  the  ''Secretary  of  War  or  any  agent  of 
the  United  States  to  whom  the  Secretary  of  War  may  delegate  proper 
authority,"  held  that  under  the  authority  to  delegate  thus  expressly 
conferred  on  the  Secretar5r  of  War  he  could  legally  delegate  to  the 
officers  of  the  Corps  of  Engineers  in  local  charge  the  authority  to  take 
the  necessary  steps  to  remove  or  destroy  any  sunken  craft  which 
obstructs  the  navigation  of  any  Government  canal,  lock,  or  navigable 
waterway.     G.  17^18,  Jan.  20, 1905,  Apr.  26,  1910. 

VII  B.  Where  derelict  articles — wrecks  for  example — are  encoun- 
tered by  officers  of  the  Engineer  Corps,  as  obstructions  to  the  improve- 
ment 01  rivers,  harbors,  etc.,  required  by  Congress  (in  the  exercise  of  its 
power  to  regulate  commerce)  to  be  cleared  and  improved,  it  will  be 
legal  and  proper  for  such  officers  to  remove  such  obstructions  in  the 
most  effectual  manner.  If  the  property  is  not  actually  abandoned 
and  is  valuable,  it  will  in  general  be  expedient  first  to  give  notice  to 
the  owners  (personally  if  practicable,  or,  if  not,  through  the  news- 
papers) themselves  to  make  the  removal  within  a  certain  reasonable 
time.i     R.  36,  569,  July  1875;  0.  10628,  June  10,  1901. 

VII  B  1.  Ileld,  with  reference  to  the  question  of  the  authority  of 
the  War  Department  to  permit  the  removal  of  sunken  logs  from  the 
Neches  River,  Tex.,  under  section  19  of  the  act  of  March  3,  1899,  that 
this  section  is  not  understood  to  assert  a  property  right  in  the  United 
States  to  sunken  wrecks,  etc.,  except  as  such  right  may  arise  from  the 
taking  possession  of  abandoned  property;  that  the  statute  recognizes 
the  right  of  the  owner  of  the  obstruction  to  remove  the  same  promptly; 
but  that  if  he  fails  to  do  so  it  will  be  treated  as  abandoned  and  the 
property  applied  pro  tanto  to  the  payment  of  the  cost  of  removal; 
and  that  there  would  be  no  legal  objection  to  granting  the  permission 
appHed  for  in  respect  to  such  logs  as  were  abandoned,  or  to  entering 
into  a  contract  for  their  removal,  upon  the  provision  that  the  logs 

»  See  sec.  4  of  act  of  June  14,  1880  (1  Sup.  K.  S.,  296),  which  provides  for  the 
removal  of  sunken  wrecks  and  prescribes  the  giving  of  such  notice.  Also,  later  acts 
of  Aug.  2,  1882  (id.,  369);  Sept.  19,  1890  (id.,  802);  and  sec.  15  of  act  of  Mar.  3,  1899 
(30  Stat.  1152). 

In  an  opinion  of  the  Attorney  General  of  May  24,  1877  (15  Opins.,  284),  it  is  held 
that  the  Secretary  of  War,  where  authorized  by  an  appropriation  act  to  improve 
the  navigation  of  a  navigable  stream,  may  cause  to  be  removed  wrecks,  not  yet  aban- 
doned but  still  private  property,  if  he  considers  them  obstructions  to  navigation. 
And  see  his  later  opinion  of  April  27, 1880  (16  Opins.,  479)  (C.  120S1,  Oct.  1, 1902,  17329, 
July  6,  1905),  as  to  the  authority  of  the  United  States  to  improve  navigable  rivers  to 
the  diflregard  of  individual  rights  of  property  in  the  soil  of  the  bed. 


NAVIGABLE  WATERS  VII  B  2.  779 

should  become  the  property  of  the  contractor.  C.  14^59,  June  12, 
1906. 

VII  B  2.  WTiere  a  boat  which  had  been  left  by  its  owner  anchored 
or  tied  up  was  sunk  by  carelessness  of  the  owner,  on  the  question 
whether  tne  burden  of  removal  rests  on  the  United  States,  upon  the 
owner  by  whose  carelessness  it  was  sunk,  or  upon  the  city  in  trie  serv- 
ice of  which  it  was  held  that,  under  the  circumstances,  the  War 
Department  should  not  remove  the  wreck,  but  that  the  burden  of  its 
removal  rests  on  the  owner.     C.  10878,  July  22,  1901, 

VII  B  3.  On  the  application  of  a  transportation  company  for  the 
removal  of  the  wrecK  of  a  steamship  belonging  to  said  company, 
which  sank  near  the  wharves  of  the  company,  accompanied  by  evi- 
dence of  the  abandonment  of  the  same  by  the  company  and  by  the 
underwriters,  held,  with  reference  to  the  question  of  whether  the  com- 
pany or  the  underwriters  could  be  required  to  remove  the  wreck,  that 
the  statute  does  not  impose  such  a  duty  upon  the  owners  or  upon  the 
underwriters  of  the  vessel;  that  so  long  as  it  is  not  abandoned  it 
makes  it  the  duty  of  the  owners  to  use  due  precaution  to  prevent  its 
being  a  menace  to  navigation;  but  that  it  recognizes  the  right  to 
abandon  the  wreck  without  further  liabilit;^  on  account  of  the  same; 
and  that  in  the  event  of  its  abandonment,  if  it  be  such  menace  as  the 
statute  contemplates,  it  should  be  removed  under  the  provisions  of 
the  statute.     C.  18824,  Nov.  14,  1905. 

VII  C.  Where  a  contract  was  about  to  be  made  with  a  civilian  for 
the  removal,  from  a  harbor  channel,  of  certain  wrecks,  not  known  to  be 
fully  abandoned  (and  directed  by  act  of  Congress  to  be  caused  to  be 
removed  by  the  Secretary  of  War) ,  and  it  was  proposed  by  the  engi- 
neer officer  in  charge  to  stipulate  in  the  contract  that  the  wrecks  when 
removed  should  belong  to  the  contractor,  held  that  this  could  not  prop- 
erly be  done,  the  United  States  having  no  property  in  such  wrecks  (the 
same  not  being  Government  vessels),  but  simply  a  right  to  remove 
them  as  constituting  obstructions  to  commerce  oetween  the  States. 
B.  43,  284,  Apr.,  1880. 

VII  C  1.  Section  19  of  the  river  and  harbor  act  of  March  3,  1899 
(30  Stat.  1154),  provides  that  "whenever  the  navigation  of  any 
river,  lake  *  *  *  shall  be  obstructed  or  endangered  by  any 
sunken  vessel  *  *  *  or  other  similar  obstruction,  and  such  ob- 
struction has  existed  for  a  longer  period  than  thirty  days  *  *  * 
the  sunken  vessel  *  *  *  shall  be  subject  to  be  broken  up,  re- 
moved, sold,  or  otherwise  disposed  of  by  the  Secretary  of  War  at  his 
discretion  without  liability  for  any  damage  to  the  owners  of  the  same." 
In  carrying  on  the  work  of  improving  the  Black  River,  Ark.,  in  August, 
1909,  a  steamer  which  had  been  sunk  a  year  before  was  removed  by 
the  (jovernment,  subsequently  the  owner  requested  the  return  of  the 
machinery  in  the  steamer.  Recommended  that  the  owner  be  informed 
that  the  Secretary  of  War  would  direct  the  machinery  to  be  turned 
over  to  the  owner  on  payment  of  $150,  the  cost  of  the  removal.  C. 
7077,  Sept.  22,  1899. 

VII  C  2.  Under  the  provisions  of  section  20  of  the  act  of  March 
3, 1899  (30  Stat.  1154),  an  agreement  was  made  for  the  removal  from 
the  channel  between  Lakes  Superior  and  Huron  of  the  steamer 
John  B.  Ketcham,  2d,  which  sank  in  the  channel  completely  obstruct- 
ing navigation,  the  contract  calling  for  the  swinging  of  the  vessel  free 


780  NAVIGABLE  WATERS  VII  D. 

from  the  channel.  Upon  the  completion  of  this  work  the  wrecking 
company  raised  the  vessel  for  the  owners  and  took  it  to  Port  Huron, 
Mich.,  for  the  stipulated  consideration,  and  certain  expenses  were 
incurred  for  repairs  to  the  vessel.  Upon  the  demand  of  the  wrecking 
company  for  the  payment  of  the  agreed  price  for  services  rendered 
in  clearing  the  channel,  it  was  advised  that  payment  would  be  made 
if  the  vessel  was  turned  over  to  the  Engineer  Department  to  be  pro- 
ceeded against  under  the  statute.  Held  that  as  the  services  in 
raising  the  vessel  and  the  expenses  of  the  necessary  repairs  were 
incurred  in  saving  the  vessel  for  the  benefit  of  all  interests,  they 
should  be  regarded  as  having  the  priority  over  the  claim  of  the  Gov- 
ernment under  the  statute  for  swinging  her  free  from  the  channel,  by 
analogy  to  the  rule  that ' '  bottomry  bonds  take  priority  in  the  inverse 
order  of  their  execution,"^  and  that  as  the  summary  remedy  given 
by  the  statute  requires  the  entire  proceeds  to  be  turned  over  to  the 
Government,  instead  of  resorting  to  this  remedy  proceedings  in 
admiralty  should  be  taken  to  enforce  the  lien  of  the  Government,  in 
which  proceedings  the  priority  of  the  respective  liens  could  be  deter- 
mined; and  advised  that  payment  be  not  made  until  the  vessel  shall 
have  been  returned  to  the  united  States  and  suit  instituted  by  the 
Department  of  Justice.^  C.  28032,  Jan.  10  and  Mar.  23,  1911. 
Held,  also,  in  regard  to  the  contention  that  the  statute  was  uncon- 
stitutional because  it  requires  the  entire  proceeds  to  be  turned  over 
to  the  Government  regardless  of  whether  they  exceed  the  amount 
expended  by  the  Government,  that  this  procedure  is  to  be  resorted 
to  only  if  the  owners  decline  to  take  the  vessel,  upon  satisfying  the 
lien  oi  the  Government,  and  that  by  so  declining  the  owners  should 
be  regarded  as  electing  to  abandon  the  vessel  to  the  United  States 
rather  than  pay  the  charges  against  her.  C.  28032,  Jan.  10,  1911. 
Held,  further,  after  the  vessel  had  been  sold  in  admiralty  proceedings 
in  Canada,  on  notice  to  the  United  States,  without  bringing  sufficient 
to  satisfy  the  claim  of  the  Government  after  the  payment  of  liens 
entitled  to  priority  that  the  further  retention  of  the  contract  price 
for  swinging  the  vessel  free  from  the  channel  would  not  be  justified, 
but  that  interest  thereon  should  not  be  paid.^  C.  28032,  Oct.  30, 1911. 
VII  D.  On  the  application  of  a  transportation  company  for  the 
removal  of  the  wreck:  of  a  steamship  of  said  company,  under  the  act 
of  March  3,  1899  (30  Stat.  1154),  and  it  appearing  that  the  wreck  was 
not  located  where  it  was  a  menace  to  general  navigation,  but  was 
simply  an  obstruction  to  the  approach  to  the  wharves  of  said  com- 
pany, requiring  greater  care  in  approaching  the  same,  held  that  the 
Secretary  of  War  might  properly  decide  that  the  wreck  was  not  such 
a  one  as  it  was  incumbent  upon  the  department  to  remove  under  the 
statute  in  question,  so  that  if  its  removal  was  required  in  the  inter- 

i36Cyc.,201. 

2  These  views  were  concurred  in  by  the  Attorney  General  in  his  opinion  dated  Feb. 
28,  1911. 

3  In  an  opinion  of  the  Attorney  General,  dated  Nov.  22, 1911,  it  was  held  that  under 
the  facts,  as  they  then  appeared,  it  was  no  longer  proper  to  require  the  wrecking  com- 
pany, as  a  condition  precedent  to  the  payment  of  the  contract  price,  to  bring  the 
vessel  within  the  jurisdiction  of  the  Unitecl  States,  and  that  the  contract  price  should 
be  paid,  but  that  the  statute  under  which  the  claim  arose  made  no  provision  for  the 
payment  of  interest. 


NAVIGABLE   WATERS  VIII.  781 

ests  of  the  applicant  the  expense  should  be  borne  by  it.     C.  1882J^, 
Nov.  14,  1905. 

VIII.  The  river  and  harbor  act  of  Aug.  18,  1894  (28  Stat.  338), 
section  4,  makes  it  the  duty  of  the  Secretary  of  War  to  prescribe 
rules  and  regulations  for  the  use  and  navigation  of  all  ''canals  and 
similar  works  of  navigation,"  owned,  operated,  or  maintained  by  the 
United  States,  etc.,  and  also  makes  the  violation  of  any  of  these 
regulations  a  misdemeanor  punishable  in  the  proper  United  States 
court.  Held  that  this  section  does  not  apply  in  general  to  natural 
waterways,  though  their  navigability  has  been  improved  and  is 
being  maintained  by  the  Government.  C.  4^4,  Oct.,  1894;  1047, 
Mar.,  1895;  2919,  Feb.,  1897;  3449,  Aug.,  1897;  12683,  June  3,  1902. 

IX.  By  legislation  prior  to  1890,  Congress  had  exercised  some 
control  over  the  subject  of  obstructions  to  navigation,  principally 
with  reference  to  bridges  over  navigable  streams.  But  by  the  river 
and  harbor  appropriation  act  of  September  19,  1890  (26  Stat.  454), 
a  general  authority  over  the  subject  was  assumed,*  and  it  was  enacted, 
in  section  10,  as  follows:  ''That  the  creation  of  any  obstruction,  not 
affirmatively  authorized  by  law,  to  the  navigable  capactiy  of  any 
waters,  in  respect  of  which  the  United  States  has  jurisdiction  is 
hereby  prohibited.'*  The  act  does  not  make  it  the  duty  of  the  Secre- 
tary of  War  to  enforce  this  provision  in  all  cases,  but,  in  sections  4,  6, 
7,  8,  and  12,  it  invests  him  with  specific  authority  with  regard  to  cer- 
tain kinds  of  obstructions,  as,  to  take  precautions  against  obstruc- 
tion by  bridges  and  to  approve  the  location  of  bridges,  etc.;  to  give 
permits  for  making  deposits  of  substances  or  materials  in  navigable 
waters;  to  permit  the  erection  of  wharves,  dams,  breakwaters,  and 
the  like;  to  break  up  and  remove  wrecks,  etc.;  and  to  cause  the 
establisliing  of  harbor  lines  under  regulations  prescribed  by  him. 
But  the  prosecution  and  punishment  of  individuals  creating  obstruc- 
tions witnout  proper  permit  or  authority  of  law  is  left  by  the  act  to 
the  law  officers  and  the  courts.    P.  63,  365,  Feb.,  1894. 

IX  A.  There  is  no  law  authorizing  the  Secretary  of  War  to  cause 
obstructions  to  be  removed  from  navigable  waters,  except  as  he  may 
direct  his  subordinates,  charged  with  river  or  harbor  improvement, 
etc.,  to  remove  them  where  appropriations  exist  for  the  purpose.  The 
act  of  September  19,  1890  (26  Stat.  454),  makes  it  unlawful  to  place 
obstructions  in  navigable  waters  without  the  permission  of  the  Secre- 
tray  of  War,  but  when  the  law  is  violated  it  is  not  for  the  Secretary 
to  initiate  proceedings  but  for  the  legal  and  judicial  authorities  under 
sections  10  and  11  of  the  act,  to  take  action  by  prosecution  and 
injunction.     P.  52,  343,  Mar.,  1892;  63,  365,  Feb.,  1894. 

IX  A  1.  Under  the  provisions  of  section  10  of  the  act  of  September 
19,  1890,  it  becomes  not  only  unlawful  but  a  criminal  act  to  obstruct 
the  navigation  of  navigable  waters  of  the  United  States.  Thus,  where 
a  railroad  company,  under  color  of  authority  from  certain  State  offi- 
cials, proceeded  to  close  for  a  month,  pending  the  repairing  of  one  of 
its  bridges,  the  passage  up  and  down  an  interstate  navigable  stream, 
so  that  in  fact  the  United  States  was  prevented  from  transporting 
upon  the  same  a  gun  carriage  manufactured  within  the  State  for  the 

^  See  sections  9  to  20,  inclusive,  of  the  river  and  havbor  act  of  Mar.  3,  1899  (30  Stat. 
1151),  for  existing  statutes  on  the  subject. 


782  NAVIGABLE  WATERS   IX  A  2. 

Government,  Jield  that  the  assumption  of  jurisdiction  over  such 
waters  by  the  United  States  through  the  legislation  of  Congress  had 
displaced  the  jurisdiction  previously  exercised  hj  the  State  to 
authorize  such  obstructions;  and  that  under  this  legislation  the  river 
was  a  public  highway,  open,  not  only  to  the  United  States  for  public 
purposes,  but  to  all  private  individuals  whatsoever,  and  could  not 
lawfully  be  closed  or  interrupted;  and  advised  that  the  proper  United 
States  district  attorney  be  communicated  with,  with  a  view  to  the 
initiation  of  proceedings  under  section  11  of  the  act.  P.  64,  210, 
Mar.,  1894. 

IX  A  2.  The  act  of  June  23,  1910  (36  Stat.  593),  makes  it  unlawful 
to  dump  refuse  material  in  Lake  Michigan  opposite  Cook  County  at 
any  pomt  within  8  miles  of  the  shore,  except  under  certain  condi- 
tions; but  imposes  no  duty  on  the  Engineer  Department  with  respect 
to  marking  the  8-mile  limit  nor  with  respect  to  the  enforcement  of  the 
statute.  On  the  question  as  to  whether  the  expense  of  marking, 
placing^  and  maintaining  buoys,  including  patrolling,  could  properly 
be  charged  to  river  and  harbor  appropriations,  held  that  the  act  being, 
penal  in  its  nature,  its  provisions  are  supposed  to  be  enforced,  like 
those  of  other  penal  statutes  of  the  Umted  States,  by  the  matter 
being  brought  to  the  attention  of  the  proper  United  States  attorney 
and  the  offender  brought  to  trial  for  violation  of  the  statute;  and 
that  no  appropriation  under  the  control  of  the  Engineer  Department 
could  be  applied  to  the  purposes  in  question.     O.  27101,  Aug.  3, 1910. 

IX  B.  With  reference  to  the  question  of  the  right  of  the  Secretary 
of  War  to  confer  on  certain  officers  of  the  Charlestown  Navy  Yard 
the  authority  to  make  arrests,  etc.,  under  section  17  of  the  river  and 
harbor  act  of  March  3,  1899  (30  Stat.  1152),  for  violations  of  sections 
14  and  15  of  that  act,  held  that  the  statute  confers  on  certain  officers 
the  authority  to  swear  out  processes  and  make  arrests  but  does  not 
empower  th3  Secretary  of  War  to  authorize  arrests  by  other  officials; 
and  that  the  general  duty  of  enforcing  the  law  is  in  the  Department 
of  Justice — the  statute  expressly  making  it  the  duty  of  United  States 
attorneys  to  vigorously  prosecute  all  offenders  against  the  law  when- 
ever requested  to  do  so  by  the  Secretary  of  War  or  by  any  of  the  offi- 
cials authorized  to  make  arrests.     C.  15182,  Aug.  29, 1903. 

IX  C.  Held,  that  under  the  acts  appropriating  money  for  the 
improvement  of  the  Columbia  River,  to  be  expended  under  the 
direction  of  the  Secretary  of  War,  the  Secretary,  wliile  authorized 
to  make  regulations  for  the  prosecution  and  protection  of  the  works 
of  improvement,  was  not  empowered  to  require,  by  such  regulations, 
the  removal  of  fish  traps  and  pound  nets  as  obstructions  to  naviga- 
tion; that  it  was  not  within  the  province  of  the  Secretary  of  War 
to  determine  what  is  or  what  may  become  an  obstruction  to  naviga- 
tion, and  cause  to  be  removed  the  one  or  prohibited  the  other  by  a 
mere  order  or  regulation,  in  the  absence  of  authority  given  by  specific 
legislation  of  Congress.     R.  53,  257,  Afr.,  1887. 

X  A.  When  Congress,  in  the  exercise  of  its  exclusive  power  to 
direct  how  the  public  money  shall  be  employed,  has  appropriated  a 
certain  sum,  to  be  devotea,  without  exceptions  or  provisos,  to  a 
certain  specific  internal  improvement,  it  devolves  upon  the  executive 
department  of  the  Government,  charged  as  it  is  with  the  execution 
of  the  laws  enacted  by  the  legislative,  to  proceed  with  the  work 


NAVIGABLE   WATERS  X  A  1.  788 

under  the  appropriation,  without  entertaining  any  question  as  to 
the  expediency  oi  the  expenditure.  Thus  where  Congress  had  made 
in  general  terms  an  appropriation  of  a  specific  amount  for  improving 
a  certain  river,  advised  that  it  was  for  the  officer  charged  with  the 
improvement  simply  to  do  the  work,  without  delaying  to  raise  or 
consider  questions  or  claims  of  title  to  the  land,  etc.,  to  be  affected 
by  the  improvement;  such  matters  being  quite  beyond  the  province 
o!  an  executive  official  under  the  circumstances.^  B.  4^,  101,  Nov., 
1879;  C.  21814,  July  23,  1907;  22703,  Feb.  6,  1908. 

X  A  1.  Held,  that  the  permissive  words  in  the  river  and  harbor 
act  of  June  13,  1902  (32  Stat.  342),  viz,  that  the  ^'Secretary  of  War 
is  authorized  to  cause  to  be  built  a  suitable  dregde  for  use  in  the 
improvement  of  the  harbors  upon  Lake  Erie,"  like  the  corresponding 
expressions  "it  shall  be  lawful"  or  '4s  authorized  and  empowered," 
should  be  regarded  as  equivalent  to  the  word  ''may,"  and  as  man- 
datory in  character,  and  that  the  authority  so  conferred  should  be 
carried  into  effect.^  C.  2473,  Jan.  2,^  1903.  Similarly  lield,  with 
respect  to  the  proviso  in  the  appropriation  made  by  the  act  of  March 
2,  1907  (34  Stat.  1087),  for  the  improvement  of  Mobile  Harbor, 
"that  so  much  as  may  be  necessary  may  be  expended  in  the  con- 
struction of  a  dredge  for  said  harbor,"  that  it  is  a  peculiarity  of 
river  and  harbor  legislation  that  the  duties  are  imposed  by  the  use 
of  the  word  "may"  which,  in  the  majority  of  such  enactments,  has 
a  mandatory  signification.  C.  24027,  Oct.  30,  1908.  Similarly  Tield, 
with  respect  to  the  provision  in  the  amendatory  act  of  May  28,  1908 
(35  Stat.  430),  that  the  sum  so  set  apart,  except  the  amount  expended 
for  the  plans  of  the  dredge,  "may  be  used  in  the  work  of  dredging. 
C.  24027,  Oct.  30,  1908.  Held,  however,  that  in  the  last  clause  of 
the  act  of  1908,  "that  the  Secretary  of  War  may,  in  Ms  discretion, 
enter  into  contracts  for  the  work,"  the  context  clearly  deprives  the 
word  "may"  of  the  obligatory  character.     C.  24027,  Oct.  30,  1908. 

X  A  2.  Section  13  of  the  river  and  harbor  act  of  August  18,  1894 
(28  Stat.  338),  provides  "that  after  the  regular  or  formal  report  on 
any  examination,  survey,  project,  or  work  under  way  or  proposed 
is  submitted,  no  supplemental  or  additional  report  or  estimate  for 
the  same  fiscal  year  shall  be  made  unless  ordered  by  a  resolution  of 
Congress."  To  construe  this  language  strictly  would  lead  to  two 
conclusions  which  it  is  improbable  Congress  intended,  to  wit:  (1) 
Additional  estimates  for  work  which  has  become  necessary  in  order 
to  preserve  that  already  done  or  being  done  during  the  fiscal  year, 
can  not  be  made.  (2)  The  Senate  and  House  of  Representatives, 
acting  separately,  can  not  call  for  information  on  this  subject.  Held, 
therefore,  that  the  section  should  be  liberally  construed  as  follows : 
That  it  prohibits  additional  estimates  (unless  ordered  by  resolution 
of  Congress),  extending  the  work  already  estimated  for;  and  that  the 
"resolution  of  Congress"  referred  to  includes  separate  resolutions  of 
either  House.     C.  2148,  Mar.,  1896. 

X  A  3.  Where  authority  was  given,  by  a  proviso  in  the  appropria- 
tion for  a  channel  through  Sabine  Lake,  to  select  a  longer  route  near 
the  west  shore  and  to  connect  the  same  with  the  Port  Arthur  Canal, 

»  See  24  Op.  Atty.  Gen.,  594. 

2  This  view  was  concurred  in  by  the  Attorney  General  in  his  opinion  dated  Feb. 
28,  1903  (24  Op.  Atty.  Gen.,  594.) 


784  NAVIGABLE   WATERS   X   B   1. 

upon  a  further  proviso  for  the  free  navigation  of  said  canal,  heldy 
that  as  the  oJSice  of  a  proviso  is  not  to  eiuarge  or  extend  the  act  of 
which  it  is  a  part  but  rather  to  limit  or  restrict  the  language  em- 
ployed/ the  route  in  question  could  not  be  selected  in  the  event  of 
the  refusal  of  the  owners  of  said  canal  to  allow  the  free  navigation 
thereof.     C.  13394,  Oct.  7,  1902. 

X  B  1 .  Work  done  by  the  United  States  upon  rivers  and  harbors 
is  civil  work.  The  fact  that  military  officers  are  assigned  to  dutv 
on  it  does  not  make  it  a  branch  of  the  military  service.  The  work 
itself  does  not  relate  to  military  matters  or  in  any  way  afTect  the 
military  establishment  of  the  Government.  It  is  paid  for,  not  out  of 
any  appropriation  for  the  military  establishment,  but  out  of  a  sepa- 
rate civil  appropriation  for  the  improvement  of  rivers  and  harbors. 
Held,  therefore,  that  paragraph  808,  Army  Regulations  of  1889,  was 
not  applicable  to  civilians  employed  in  the  improvements  of  rivers 
and  harbors,  said  civilians  not  being  '4n  the  employ  of  any  branch 
of  the  military  service."  C.  1^7,  Aug.,  1894.  It  was  the  intention, 
however,  to  have  paragraph  569,  Army  Regulations  of  1895  (see  648 
of  1901),  apply  to  river  and  harbor  work;  but  whether  it  applies  or 
not  the  Secretary  of  War  has  discretionary  power  to  require  with 
reference  thereto  the  reports  mentioned  in  the  regulations.  C.  3418, 
Aug.,  1897. 

X  B  1  a.  Held  with  reference  to  the  item  in  the  river  and  harbor 
act  of  February  27,  1911  (36  Stat.  957),  increasing  the  Corps  of 
Engineers  and  providing  that  ''officers  of  the  Corps  of  Engineers, 
when  on  duty  under  the  Chief  of  Engineers,  connected  solely  with 
the  work  of  river  and  harbor  improvements,  may,  while  so  employed, 
be  paid  their  pay  and  commutation  of  quarters  from  the  appropria- 
tion for  the  work  or  works  upon  which  employed";  that  the  proviso 
in  question,  being  connected  with  permanent  legislation  increasing  the 
Corps  of  Engineers,  should  be  regarded  as  of  like  permanent  charac- 
ter; and  that  the  use  of  the  permissive  word  ''may"  in  legislation 
of  this  character  should  be  considered  as  mandatory,  so  that  where  an 
officer  is  so  engaged  he  not  only  may  but  must  be  paid  from  the  ap- 
propriation for  the  work  on  which  he  is  employed. ^  C.  28632,  June 
27,  1911. 

X  B  2.  On  the  question  of  whether  the  appropriation  in  the  river 
and  harbor  act  of  June  3,  1896,  for  the  investigation  of  the  rights  of 
the  United  States  in  connection  with  the  improvement  of  the  Fox 
and  Wisconsin  Rivers  to  be  made  under  the  direction  of  the  Secretary 
of  War,  should  be  disbursed  by  the  Chief  of  Engineers,  lield  that  as 
the  item  occurs  along  with  other  appropriations  in  the  same  act  the 
expenditure  of  which  is  under  the  direction  of  the  Chief  of  Engineers, 
although  it  makes  no  provision  on  the  subject,  it  should  be  disbursed 
by  the  Engineer  Department  under  the  general  provision  applying 
to  other  appropriations  made  by  the  same  act;  and  further,  that  it 
was  clearljjr  competent  for  the  Secretary  of  War  to  direct  that  the 
appropriation  be  disbursed  by  the  Engineer  Department.  C.  3900, 
Feb.  25,  1898. 

^  Sutherland  on  Statutory  Construction,  p.  299. 

2  This  view  was  concurred  in  by  the  comptroller  in  his  decision  dated  July  24,  1911 
(XVIII  Comp.  Dec,  45). 


i 


NAVIGABLE   WATERS   X   C.  785 

X  C.  Section  3  of  the  river  and  harbor  act  of  August  11,  1888 
(25  Stat.  423),  made  it  the  duty  of  the  Secretary  of  War  to  apply  the 
money  appropriated  by  the  act  '4n  carrying  on  the  various  works 
by  contract  or  otherwise  as  may  be  most  economical  and  advantageous 
to  the  Governmeiit. "  Held  that  he  was  thus  empowered  to  authorize 
the  engineer  officer  in  charge  of  the  work  for  the  protection  of  the 
levees  at  New  Orleans  to  hire  without  formal  contract,  a  steamboat 
for  transporting  material,  and  for  other  uses  in  connection  with  such 
work.     P.  40,  96,  Mar.,  1890;  C.  151^88,  Nov.  9, 1903. 

X  C  1.  A  contractor  engaged  upon  river  and  harbor  work  for 
the  Government  may  obstruct  navigation  to  the  extent  necessary  to 
do  his  work,  if  such  obstruction  can  not  reasonably  be  avoided.  He 
is,  however,  liable  both  civilly  and  criminaUy  for  an  unauthorized 
obstruction,  and  the  Secretary  of  War  is  without  authority  to  relieve 
him  from  such  liabUity.     C.  3839,  Feb.,  1898. 

X  D.  Section  3736,  R.  S.,  provides  that  '^no  land  shall  be  pur- 
chased on  account  of  the  United  States,  except  under  a  law  authoriz- 
ing such  purchase."  By  the  act  of  April  24,  1888  (25  Stat.  94),  the 
Secretary  of  War  was  authorized  to  ''cause  proceedings  to  be  insti- 
tuted, in  the  name  of  the  United  States,  in  any  court  having  jurisdic- 
tion of  such  proceedings  for  the  acquirement  by  condemnation  of 
any  land,  right  of  way,  or  material  needed  to  enable  him  to  maintain, 
operate ;^r  prosecute  works  for  the  improvement  of  rivers  and  harbors 
for  whicli  provision  has  been  made  by  law."  Further  provision  as 
to  the  method  of  condemning  lands  for  public  use  was  made  by  the 
act  of  August  1,  1888  (25  Stat.  357).  The  act  of  April  24,  1888,  swpra, 
provided  ''that  when  the  owner  of  such  land,  right  of  way,  or  material 
shall  fix  a  price  for  the  same,  which  in  the  opinion  of  the  Secretary 
of  War  shall  be  reasonable,  he  may  purchase  the  same  at  such  price 
without  further  delay;  and  provided  further  that  the  Secretary  of 
War  is  hereby  authorized  to  accept  donations  of  lands  or  materials 
required  for  the  maintenance  or  prosecution  of  such  works."  The 
authority  to  condemn,  purchase,  or  ''accept  donations"  applies 
only  to  works  "for  which  provision  has  been  made  by  law."  Held, 
therefore,  that  in  the  absence  of  an  appropriation  for  the  works  or 
express  authority  from  Congress,  the  Secretary  of  War  is  precluded 
by  section  3736,  E,.  S.,  from  acquiring  lands  for  river  and  harbor 
improvements;  the  word  "purchase"  in  this  statute  having  been  con- 
strued in  its  legal  sense  as  including  every  mode  of  acquiring  land 
other  than  by  descent.^  C.  3896,  Feb.,  1898;  2111,  Mar.  12,  1896; 
11024,  ^ng.  10,  1901;  13o86,  Nov.  20,  24,  25,  1902. 

X  D  1 .  The  owner  of  lands  flooded  by  dams  constructed  in  im- 
proving navigation  is  entitled  to  conipensation  for  damages  sustained 
by  such  flooding.^  Held,  that  the  Secretary  of  War  has  authority 
under  the  act  of  April  24,  1888  (25  Stat.  94),  to  purchase  lands  flooded 
by  dams  constructed  in  river  and  harbor  improvements,  or  the  right 
to  flood  the  same,  and  where  springs  are  located  on  such  lands  this 

^  See  7  Ops.  Atty.  Gen.,  114,  121;  Ex  'parte  Hebard,  4  Dillon,  384.  A  conveyance 
of  lands  to  the  United  States  is,  under  this  statute,  void  and  inoperative  unless  the 
purchase  is  authorized  by  Congress.  U.  S.  v.  Tichenor,  12  Fed.  Rep.,  415;  VI  Comp. 
Dec,  791. 

2  Gould  on  Waters,  2d  edition,  sec.  243,  and  authorities  cited;  Hackstack  v.  Keshena 
Imp.  Co.,  66  Wis.  439;  Am.  &  Eng.  Ency.  of  Law  (Ist  edition),  vol.  16,  p.  265,  note  1. 

31106°— 12 50 


786  NAVIGABLE  WATERS  X  D  1  a. 

fact  may  properly  be  considered  in  determining  the  amount  to  be 
paid.     C.  107Jf,  Mar.,  1895. 

X  D  1  a.  Where  the  State  of  Washington,  by  act  of  February  8, 
1901  (Laws  of  Washington,  1901,  p.  7),  granted  to  the  United  States 
the  right  to  raise  the  level  of  Salmon  Bay,  inter  alia,  and  subse- 
quently disposed  of  the  shore  lands  to  the  riparian  owners,  who  served 
notices  of  the  revocation  of  the  grant  ana  requested  their  acknow- 
ledgment, upon  the  theory  that  it  amounted  merely  to  a  revocable 
license,  held,  that  under  tne  grant  the  Government  acquired  a  per- 
petual easement  or  servitude  for  the  purposes  speciiied  therein, 
and  that  the  subsequent  grant  of  the  shore  lands  to  the  present 
owners  would  be  subject  to  the  same,  but  that  there  could  be  no 
objection  to  acknowledging  the  receipt  of  the  notices  as  requested. 
C.  26^25,  Mar.  26,  1910;  20969,  Mar.  2  and^  May  17,  1911. 

X  D  2.  The  Secretary  of  War  is  authorized  to  acquire,  by  pur- 
chase or  condemnation,  land,  right  of  way,  or  material,  needed  to 
maintain,  operate,  or  prosecute  works  for  the  improvement  of  rivers 
and  harbors,  when  provision  for  the  same  has  been  made  by  law. 
C.  301,  Sept.,  1894-.  But  he  can  not  lease  land  unless  appropriation 
has  been  made  to  pay  the  rental  thereof.     C.  195,  Aug.,  1894-. 

X  D  3.  Held,  that  it  was  not  within  the  constitutional  power  of 
Congress  to  enact  that  the  United  States  should  not  be  liable  for 
damages  caused  by  the  prosecution  of  a  public  work,  and  therefore 
that  the  Government  could  not,  through  a  provision  of  law  to  that 
effect,  escape  liability  for  losses  incurred  by  third  parties  from  flowa^e 
caused  by  a  harbor  improvement.  If  it  would  be  liable  to  them  m 
the  absence  of  such  law,  a  statute  providing  that  it  should  not  be 
liable  would  be  unconstitutional  as  being  an  attempt  to  deprive 
them  of  a  property  right  by  legislation.  P.  56,  Jf.78  and  ^85,  Dec, 
1892. 

X  D  4.  The  owner  of  land  occupied  by  a  canal,  constructed  as  an 
improvement  under  a  river  and  harbor  act,  may,  by  the  authority 
of  the  ruling  of  the  Supreme  Court  in  the  leading  case  of  United 
States  V.  Lee,^  maintain  an  action  of  ejectment  or  trespass  against 
the  official  representative  of  the  United  States  in  charge  of  the  im- 
provement.   P.  35,  191,  Sept.,  1889. 

X  E.  Held,  that  the  work  of  constructing  a  levee  near  the  mouth 
of  the  Mississippi  River  might  legally  be  proceeded  with  under  the 
appropriation  available  therefor,  upon  obtaining  licenses  from  the 
owners  of  the  land  upon  which  the  levee  would  rest,  and  that  the  pro- 
visions of  section  355,  R.  S.,  have  not  been  regarded  as  forbidding 
such  improvements  without  acquiring  title  to  the  lands  underlying 
the  same.     C.  13680,  Nov.  25,  1902. 

X  E  1 .  With  reference  to  the  appropriation  for  the  improvement 
of  the  Hudson  River,  under  the  act  of  June  25,  1910  (36  Stat.  635), 
which  was  conditioned  upon  the  extinguishment  by  the  State  of  New 
York  of  all  power  rights  and  privileges  to  be  affected  by  the  improve- 
ment, the  State  canal  board  passed  a  resolution  formally  abandoning 
the  State  lock  and  dam  and  authorizing  their  destruction,  this  action 
including  the  extinguishment  of  the  power  rights  and  privileges  in 
question.  Thereupon  the  Engineer  Department  incurred  expenses 
and  entered  into  a  contract  for  dredging  and  rock  excavation  in  the 
execution  of  the  project  authorized  by  Congress.     After  such  action 

1 106  U.  S.,196.    And  see  the  case  of  Stanley  v.Schwalby,  147  U.S., 508;  162  id., 255. 


NAVIGABLE   WATERS   X   F.  787 

the  State  canal  board  rescinded  its  former  resolution,  and  the  State 
authorities  requested  the  amendment  of  the  project  accordingly. 
Held  that  the  project  was  to  be  treated  as  an  entirety  and  that  unless 
the  conditions  of  the  appropriation  were  satisfied  the  War  Depart- 
ment could  not  proceed  with  any  part  of  the  work  of  improvement; 
but  questioned  wnether,  the  United  States  having  once  entered  upon 
the  work  of  improvement  upon  the  faith  of  the  former  action  of  the 
canal  board,  it  was  competent  for  the  State  authorities  to  rescind 
such  action.^     C.  28390,  May  22,  1911. 

X  F.  Section  5  of  the  river  and  harbor  act  of  June  13,  1902  (32  Stat. 
373),  provides:  ''That  when  any  land  *  *  *  acquired  for  the 
improvement  of  rivers  and  harbors  is  no  longer  needed,  *  *  *  j^ 
may  be  sold  in  such  manner  as  the  Secretary  of  War  may  direct,  and 
the  proceeds  credited  to  the  appropriation  for  the  work  for  which  it 
was  fur chased  or  acquired;  *  *  *  ."  Held,  with  reference  to  the 
question  of  whether  this  statute  could  be  regarded  as  authorizing  the 
sale  of  land  which  had  not  been  purchased  or  acquired  through  any 
appropriation  for  river  and  haroor  improvements,  but  had  been 
reserved  from  the  public  domain  for  such  purpose,  that  while  the 
word  ''purchase"  mcludes,  in  its  legal  sense,  every  method  of 
acquisition  other  than  by  descent,  it  should,  as  here  used,  receive  a 
more  restricted  construction  as  desi^ating  acquisition  by  voluntary 
sale,  while  the  word  "acquire"  was  intended  to  cover  acquisition  by 
donation  or  condemnation;  that  the  intent  of  Congress  was  to  provide 
for  the  elimination  of  property  which  had  become  useless  for  the 
purpose  for  which  procured,  without  diminishing  the  provision  for  a 
particular  improvement;  but  that  as  to  lands  wfich  had  simply  been 
segregated  from  the  pubHc  domain,  they  should  be  returned  to  the 
Department  of  the  Interior;  and  that  a  different  construction  from 
that  above  would  place  it  in  the  power  of  the  Executive  indirectly  to 
provide  for  a  particular  improvement  by  reservation  and  sale  of  public 
lands  therefor.     C.  12479,  Mar.  1,  1906. 

X  F  1.  Section  5  of  the  river  and  harbor  act  of  June  13,  1902  (32 
Stat.  373)  provides:  "That  when  any  land  *  *  *  acquired  for 
the  improvement  of  rivers  and  harbors  is  no  longer  needed  *  *  * 
it  may  be  sold  in  such  manner  as  the  Secretary  of  War  may  direct.'' 
Held  that  under  this  authority  certain  lands  at  Dam  No.  5,  Ohio 
River,  not  needed,  might  legally  be  sold.  C.  13432,  Oct.  21,  1902. 
Similarly  held  as  to  land  acquired  for  Yuba  River  settUng  basin.  C. 
28349,  May  9,  1911.  Also  held,  in  regard  to  the  sale  of  certain  land 
condemned  for  a  cut-off  in  Mantua  Creek,  N.  J.,  that  under  the  broad 
auth'ority  conferred  by  this  act  the  Secretary  of  War  could  legally 
convey  the  same  by  warranty  deed  ^ — the  former  owner  claiming  that 

\In  his  opinion  dated  Julj^  3,  1911,  the  Attorney  General  held  that  the  earlier  reso- 
lution of  the  canal  board  might  be  regarded  as  "an  extinguishment  of  the  existing 
leases  and  a  resumption  of  the  surplus  water  created  by  the  State  lock  and  dam, 
although  not  as  an  abandonment  of  those  structures;  that  this  action  was  a  substan- 
tial compliance  with  the  conditions  of  the  appropriation;  that  under  the  paramount 
control  of  the  United  States  over  the  Hudson  River  the  State  lock  and  dam  could  be 
removed  as  an  obstruction  to  navigation;  and  that  the  attempted  rescinding  of  the 
earlier  action,  after  it  had  been  accepted  and  acted  upon  by  the  Federal  Government, 
was  inoperative  to  defeat  the  execution  of  the  work  authorized  by  Congress." 

2  The  Attorney  General,  by  opinion  dated  Apr.  26,  1911,  held  that  this  statute  gives 
authority  "to  adopt  a  form  of  deed  best  suited  to  the  particular  transaction  being 
carried  on;"  that  the  United  States  acquired  a  fee  simple  title  to  the  property  in 
question;  and  that  the  Secretarv  of  War  had  authority  to  execute  the  form  of  warranty 
deed  submitted. 


788  NAVIGABLE   WATERS  X  F   2. 

the  title  of  the  United  States  was  limited  to  the  use  for  which  con- 
demned; and  advised  that  such  a  deed  be  tendered  to  the  highest 
bidder,  and  that  should  he  refuse  to  complete  the  purchase  the  deposit 
be  forfeited.     C.  26472,  Mar.,  1911;  Apr.  21,  1911. 

X  F  2.  In  view  of  the  authority  conferred  on  the  Secretary  of  War 
by  section  3  of  the  act  of  August  11,  1888  (25  Stat.  423),  to  apply  the 
moneys  appropriated  for  river  and  harbor  improvements  ''by  con- 
tract or  otherwise  as  may  be  most  economical  and  advantageous  to 
the  Government;"  and  of  the  authority  conferred  by  section  5  of  the 
act  of  June  13,  1902  (32  Stat.  373),  to  direct  the  transfer  of  river  and 
harbor  property  from  one  project  to  another  upon  proper  credits  and 
debits,  rield  that  there  would  be  no  legal  objection  to  authorizing  the 
Chief  of  Engineers  to  permit  the  temporary  transfer  between  projects 
upon  such  equitable  adjustment  of  charges  and  credits  as  may  be 
agreed  upon  by  the  local  engineer  officers  concerned.  C.  16202,  Apr. 
20,  1904.  Similarly  lield,  with  reference  to  authorizing  the  Chief  of 
Engineers  to  permit  the  sale  of  unserviceable  river  and  harbor  prop- 
erty, under  section  5  of  the  said  act  of  June  13,  1902,  where  the 
amount  does  not  exceed  $500  and  where  there  is  no  doubt  as  to  the 
propriety  of  the  sale,  so  that  the  exercise  of  the  authority  may  be 
regarded  as  routine  in  its  nature.     C.  16336,  Feb.  18,  1911. 

X  F  3.  Section  1241,  R.  S.,  prescribes  that  the  President  may  cause 
to  be  sold  any  military  stores  which,  upon  proper  inspection  or  sur- 
vey, appear  to  be  damaged  or  unsuitable  for  the  public  service.  Held 
that  the  term  ''military  stores"  does  not  include  public  property 
purchased  in  carrying  out  the  civil  works  of  river  and  harbor  improve- 
ments. The  regulations,  however,  with  reference  to  property  account- 
abihty,  as  contained  in  the  Army  Regulations  of  1895,  were  intended 
to  cover  all  public  property  under  the  control  of  the  Secretary  of  War, 
whether  military  stores  or  not.  The  regulations  (and  orders)  relating 
to  the  inspection  of  unserviceable  property  with  a  view  to  its  condem- 
nation apply,  therefore,  to  public  property  used  in  river  and  harbor 
improvements.  There  is,  however,  no  existing  law  which  would  pre- 
vent such  modification  of  these  regulations  as  would  authorize  the 
proper  engineer  officer  to  drop  property,  other  than  military  stores, 
from  his  returns  on  his  own  certificate  that  its  condition  resulted  from 
wear  and  tear  in  the  service,  that  it  was  worthless  and  had  been 
destroyed  in  his  presence.     C.  34-19,  Aug.,  1897. 

X  F  4.  Section  5  of  the  river  and  harbor  act  of  June  13,  1902  (32 
Stat.  373),  provided  that  "when  any  land  or  other  property  which  has 
been  heretofore  or  may  be  hereafter  purchased  or  acquired  for  the 
improvement  of  rivers  and  harbors  is  no  longer  needed,  or  is  no  longer 
serviceable,  it  may  be  sold  in  such  manner  as  the  Secretary  of  War 
may  direct,  and  proceeds  credited  to  the  appropriation  for  the  work 
for  which  it  was  purchased  or  acquired."  In  carrying  on  the  work  of 
improving  the  harbor  at  Mobile  various  sticks  of  timber  and  a  number 
of  sawed  logs  which  had  escaped  from  booms  and  rafts  were  recovered 
from  the  stream  and  many  of  them  had  been  there  for  more  than  thirty 
days  and  were  without  marks  that  enabled  their  ownership  to  be 
determined.  Held  that  the  material  might  properly  be  treated  as 
abandoned  and  as  belonging  to  the  one  recovering  it;  i.  e.,  the  United 
States,  and  as  the  material  was  acquired  in  prosecuting  the  work  of 
improving  the  harbor,  it  might  legally  be  used  for  that  purpose,  and 


NAVIGABLE   WATERS  X   G.  789 

if  it  was  found  not  to  be  needed  or  serviceable  for  such  use  it  might 
be  sold  as  provided  by  the  statute.     C.  15651,  Bee.  18,  1903. 

X  G.  The  Secretary  of  War  may  permit  the  use  of  land  under  his 
control  by  revocable  license  or  by  lease  under  the  act  of  July  28, 
1892  (27  Stat.  321).  C.  2^1,  Aug.,  1849.  On  the  question  raised 
as  to  the  authority  of  the  Secretary  of  War  to  lease  a  frontage  on  the 
tidal  canal  in  Oakland  Harbor,  Cal.,  to  a  bridge  company  owning  the 
abutting  property,  and  on  protest  against  such  lease  as  imposmg  a 
burden  on  commerce,  held,  that  the  protest  was  without  merit,  as  it 
claimed  a  right  in  the  abutting  owner  to  appropriate  a  particular 

Eortion  of  the  property  of  the  United  States  for  its  own  private 
usiness  and  to  use  the  same  without  charge  to  the  exclusion  of 
others ;  that  if  the  lands  are  not  now  required  for  public  use  they  may 
be  leased  under  the  act  of  July  28,  1892  (27  Stat.  321);  and  that  if 
they  are  no  longer  needed  they  may  be  sold  under  section  5  of  the  act 
of  June  13,  1902  (32  Stat.  373).     0.  19015,  Jan.  4,  1906. 

XI  A.  Held,  that  the  Mississippi  River  Commission  derived  no 
authority  from  the  statutes  relating  to  its  functions  to  make  allot- 
ments of  the  moneys  appropriated  by  Congress  for  the  improvements 
proposed.  Its  province  is  to  indicate  to  Congress  what  improvements 
are  needed  and  how  much  should  be  appropriated  thereior.  It  has 
no  authority  to  disburse  money  appropriated.  An  allotment  made 
by  it  is  to  be  treated  by  the  Secretary  of  War  as  a  recommendation 
only.  The  Secretary  may  adopt  the  recommendation,  but  in  the  dis- 
bursement should  not  omit  any  of  the  works  specially  designated  by 
Congress  in  the  appropriation  act.     P.  43,  187,  Oct.,  1890. 

XI  A  1 .  Held,  that  the  maps  prepared  by  the  Mississippi  commission, 
under  appropriations  by  Congress,  may  legally  be  disposed  of  at  the 
discretion  of  the  commission;  it  being  evidently  intended  by  Con- 
gress that  the  information  therein  contained  should  be  made  public 
and  circulated  for  the  public  use  and  benefit.     P.  33,  326,  July,  1889. 

XI  B.  The  duties,  under  the  law,  of  the  Missouri  Eiver  Commission, 
composed  partly  of  civihans,  relate  exclusively  to  certain  work  quite 
other  than  the  establishing  of  Jiarhor  lines.  It  is  therefore  not,  as  a 
body,  subject  to  the  directions  of  the  Secretary  of  War  in  the  matter 
of  establishing  harbor  lines,  nor  are  the  civilian  members  subject  indi- 
vidually to  his  orders.  Thus,  while  they  may  consent  to  establish 
such  hues,  it  is  preferable  for  the  Secretary  to  cause  such  work  to  be 
done  through  engineer  officers  of  the  Army.    P.  56,  218,  Oct.,  1892. 

XI  C.  Held,  that  the  allowances  for  the  traveling  expenses  of  the 
civihan  members  of  the  Mississippi  and  Missouri  River  Commissions 
were  not  regulated  by  any  order  of  the  War  Department  regulating 
the  allowances  of  civil  employees  of  the  military  establishment,  but 
were  such  as  are  fixed  by  statute.  They  are  not  thus  necessarily  $4 
per  diem,  since  the  statute  law  provides  for  the  reimbursement  of  their 
actual  necessary  outlay,  which  may  be  more  or  lessthan  this  allowance.^ 
P.  U  477,  Jan.,  1891;^  C.  17890,  Apr.  29,  1905. 

XI  D.  On  the  question  raised  as  to  the  subsistence  of  the  wives 
and  guests  of  the  members,  etc.,  of  the  Mississippi  River  Commission, 
under  the  provision  of  the  act  of  April  28,  1904  (33  Stat.  495),  for 
"traveUng  and  miscellaneous  expenses  of  the  Mississippi  River  Com- 

/See  Dig.  Second  Comp.  Dec,  vol.  3,  pars.  838  and  841. 


790  NAVIGABLE   WATERS — NOTARY  PUBLIC. 

mission/'  etc.,  lield,  that  the  right  to  subsistence  is  one  which  accrues 
only  to  the  members  of  the  commission  and  their  authorized  assist- 
ants and  employees ;  and  that  in  the  absence  of  legislation  for  the  sub- 
sistence of  the  wives  or  guests  of  the  members,  the  same  would  not  be 
legal.     C.  17890,  Apr.  29,  1905. 

CROSS   REFERENCE. 

Dredging See  Army  I  B  9. 

'  NAVY. 

Deserter  from See  Enlistment  I  A  9  d. 

Previous  service  in See  Enlistment  I  D  2  a. 

Relative  rank See  Rank  II  D. 

Retirement See  Retirement  I  A  1  c. 

NEUTRALITY. 

Preservation  of. See  Army  II  K  to  III. 

NEWSPAPER. 

Rule  of  nonintercourse  in  war See  War  I  C  2  c. 

Suppression  of,  in  time  of  war See  War  I  C  4  tx)  5. 

Reporters  of,  subject  to  military  control See  War  I  G  1. 

NEW  TRIAL. 

See  Discipline  XIV  K  1. 

NOLLE  PROSEQUI. 

Entering  of. See  Discipline  III  E  6;  IV  B  1;  VIIB2. 

NONCOMMISSIONED  OFFICER. 

See  Army  I  E  1  to  3. 

Abuse  of  soldiers See  Desertion  IX  K. 

Appointment See  Civilian  employee  VIII  B. 

Command  V  C  1  c. 

Discretion  of,  as  to  complaints See  Command  VI  A  1  b. 

Dropped  for  desertion See  Desertion  VII  A  1. 

Loaning  money  by See  Articles  of  War  LXII  C  15;  E. 

Power  to  arrest  a  soldier See  Command  VI  A  1  a. 

Rank  of. See  Rank  I  D  to  E. 

Reduction See  Command  V  C  2. 

Summary  discharge  of. See  Discharge  XXV. 

Warrants  of. See  Army  I  E  1  a. 

NONINTERCOURSE. 
Law  of,  in  war See  War  I  C  2  to  3. 

NONPERFORMANCE. 
Contract See  Contracts  X  to  XI. 

NOTARY  PUBLIC. 

Enlisted  man  as See  Army  I  E  3  b. 

Civilian  employee  as See  Civilian  employee  VII  to  VIII. 


NOTICE — OATH.       '  791 

NOTICE. 

Of  acceptance  of  bids See  Contracts  XI  D  2. 

Of  acceptance  of  resignation See  Office  I V  D  5  c  to  e. 

Civilian  employee  XI  A  3. 

Of  action  of  reviewing  authority See  Discipline  XIV  E  9  e. 

Of  commutation  of  sentence See  Pay  and  allowances  III  C  1  b. 

Of  confinement See  Discipline  XVII  A  4  a. 

Of  discharge See  Discharge  VIII  A;  XIII  D  1  to  9  b; 

XVI  E. 

Discharge  VIII  D  2. 

Of  discharge  of  witness See  Discipline  X  G  1. 

Of  discharge  to  insane  soldier See  Discharge  V  C;  XIII  D  4  a. 

Of  dismissal See  Office  IV  E  1  a  to  b. 

Of  dismissal  to  prisoner  of  war See  War  I  C  11  d  (1). 

Of  muster  out See  Discharge  XIV  D  3. 

Volunteer  Army  I  D  1  a  (3);  2  a  to  b. 

Of  order See  Communications  I  B  1 ;  la;  2. 

Of  retirement See  Retirement  I  A  1  a;  I  D. 

Of  school  tax See  Tax  IV  B. 

Of  summary  dismissal See  Office  IV  E  2  b  to  c. 

Of  suspension  and  dismissal See  Discipline  XII  B  3  f  (3)  (6). 

To  remove  wrecks See  Navigable  waters  VII  B. 

To  specify  changes  in  a  bridge See  Navigable  waters  I V  A  to  D  ;  F. 

To  squatters  on  military  reservation See  Public  property  II  B  3  a. 

NUISANCE. 
Hospital,  not See  Claims  V. 

NXTNC  PRO  TUNC. 

Acceptance  of  resignation See  Civilian  employees  XI  A  1. 

Appointments See  Command  V  C  1  a. 

Laws  I  B  2. 
Appointments  of  noncommissioned  officers. See  Army  I  E  2  c. 

Approval  of  advertisement See  Contracts  V  A. 

Approval  of  gratuitous  issues See  Pay  and  allowances  II  A  3  a  ^4)  (d) 

[1]  [«]• 

Cession  of  jurisdiction See  Public  property  V  E  2  d. 

Charges See  Discipline  II  H  1. 

Discharge See  Discharge  XIV  A  2. 

Dismissal  unauthorized See  Pay  and  allowances  III  Ala. 

Leaves  of  absence  Tnay  not  be  granted See  Absence  I  B  1  c  (2);  II  B  10. 

Muster  out See  Volunteer  Army  I V  D  3  to  4. 

Order See  Communications  I  D . 

Pardon See  Desertion  XV  A. 

Pardon  VIII. 

Rank See  Allowances  I  B  1  a. 

Separation  from  service See  Pay  and  allowances  I  A  1  a. 

NURSE  CORPS. 

See  Army  I  G  3  d  (6)  to  (7). 

Leave  of  absence See  Army  I  G  3  d  (6)  (a)  [2]. 

Status See  Army  I  G  3  d  (6)  (a)  [1]. 

NURSES. 

m 

Status See  Absence  I  D . 

Subsistence  of See  Army  I  G  3  (b)  (3)  (a)  [4]. 

OATH. 

Authority  to  administer See  Office  III  A  8  b . 

Members  of  general  court-martial See  Articles  op  WarLXXXIV  A  to  C  4. 


792  OATH   OF  ALLEGIENCE^ OFFICE:   SYNOPSIS. 

OATH  OF  ALLEGIANCE. 

See  Claims  VII  A. 

'Prisoner  of  war See  War  I  C  11  c  (5)  (a). 

United  States  Volunteers See  Volunteer  Army  II  C  2. 

OATH  OF  ENLISTMENT. 

Fixes  date  of  enlistmenf See  Enlistment  I  A  8  a. 

Not  essential  to  validity See  Enlistment  I  a  2. 

OATH  OF  OFFICE. 

See  Office  III  A  8  a;  b. 

OBJECTION  TO  REENLISTMENT. 

Of  deserter See  Discharge,  II  B  2  a;  XI  CI. 

Enlistment  I  D  3  c  (13). 

OBSTRUCTION  TO  NAVIGATION. 

See  Navigable  waters  I  to  II. 

Bridges See  Navigable  waters  III  A  2  b. 

By  contractor See  Navigable  waters  X  C  1. 

OBTAINING  MONEY  UNDER  FALSE  PRETENCES. 
By  soldier See  Command  V  A  2  f . 

OFFICE. 

I.  DEFINED Page  796 

A.  Creating  Power  Prescribes  Incidents  of  Office Page  797 

n.  APPOINTING  POWER. 

A.  Can  Not  Create  Office, 

1,  Can  not  revive  an  office  that  has  ceased. 

B.  Must  Keep  Offices  Filled. 

C.  Advancement  is  by  Appointment  or  Promotion, 

D.  Nomination  vice  Previous  Occupant. 

E.  Appointing  Power,  When  Exhausted, 
m.  APPOINTMENTS. 

A.  ORiGiNAli  Entry  Into  Service. 
1.  Source. 

a.  From  United  States  Military  Academy Page  798 

b.  From  ranks. 

(1)  Must  be  a  citizen. 

(2)  Must  be  less  than  30  years  of  a»^e. 

(3)  Must  have  served  two  years. 

(a)  Furlough  not  deducted. 

(4)  Physical    examination  not  one  of    two  examinations 
•  required. 

(5)  Status  of  eligibility. 

(a)  May  be  lost  how? 

c.  From  civil  life. 

(1)  To  Porto  Rican  regiment Page  799 

(2)  To  Medical  Corps. 

(3)  Age  limit. 


office:  synopsis.  793 

in.  APPOINTMENTS— Continued. 

A.  Original  Entry  Into  Service — Continued. 

2.  Recess  appointment. 

3.  Appointment  with  consent  of  Senate. 

4.  Appointment  by  President  alone. 

a.  Cadets Page  800 

(1)  Reappointment  of  discharged  cadet. 

b.  Volunteer  regiment — field  and  staff  officers.     * 

c.  Dismissed  officer. 

5.  Can  not  be  conditioned Page  801 

6.  Vesting  of  office. 

a.  Date  fixed  by  acceptance. 

(1)  Exception:  Appointments  from  United  States  Military 
Academy. 

b.  Appointments  from  ranks, 

c.  Appointment  of  surgeons. 

7.  Acceptance. 

a.  Express  or  implied. 

8.  Oaths. 

a.  Oath  of  office. 

(1)  Authority  to  administer  given  by  law Page  802 

(2)  Postmaster  can  not  administer  to  officer. 

(3)  New  oath  required  after  confirmation  of  recess  appoint- 

ment. 

(4)  Must  take  oath  prescribed. 

b.  Authority  to  administer. 

(1)  In  investigations. 

(2)  For  purposes  of  administration. 

B.  Promotion. 

1.  By  seniority. 

a.  Exception. 

(1)  Special  act  of  Congress Page  803 

(2)  Sentence  of  suspension  by  general  court-martial. 

(3)  Suspension  from  promotion,  upon  failure  in  examination, 

2.  No  vested  right  in  promotion. 

3.  Vesting  of  office. 

a.  Date  fixed  by  appointment Page  804 

(1)  Provided  acceptance  follows. 

(2)  No  obligation  before  date  of  appointment. 

(3)  Commission  not  delivered. 

(4)  Promotion  subject  to  examination, 

(a)  Sickness  is  an  exigency. 

(6)  New  commission  not  issued Page  805 

4.  By  operation  of  law. 

5.  Acceptance. 

a.  Express  or  implied. 

6.  From  line  to  staff. 

a.  Requires  appointment,  confirmation  and  commission. 

C.  Transfer. 

1,  Rights  which  accrue. 

D.  Detailed  Staff. 

1.  Office  vests  by  detail. 

a.  On  date  of  the  order Page  806 

b.  For  four  years. 

c.  Detail  to  general  staff  corps  of  a  detailed  staff  officer. 

'     d.  Redetail  of  lieutenant  colonel  to  inspector  general's  depart- 
ment. 


794  office:  synopsis. 

in.  APPOINTMENTS— Continued. 

D.  Detailed  Staff — Continued. 

2.  Promotion. 

a.  Causes  relief. 

b.  May  be  redetailed Page  807 

3.  Relieved  in  emergency. 

4.  May  transfer  as  line  oflacer  with  other  line  officers. 

E.  Appointments  by  Secretary  of  War. 

1.  Veterinarians. 

2.  Paymasters'  clerks. 

3.  Master  of  the  Sword  at  West  Point, 

F.  Restoration  of  Officer  Legally  Separated  from  Service. 

1.  By  appointment  only Page  808 

G.  Tenure  of  Office. 
IV.  VACATION  OF  OFFICE. 

A.  By  Accepting  Another  Office. 

1.  General  rule. 

a.  Accepting  other  office  in  Army. 

2.  Under  section  1222,  Revised  Statutes. 

a.  Exercise  of  congressional  power  to  raise  armies Page  809 

b.  "Exercise  functions  of  civil  office"  defined. 

c.  "Civil  office"  means  public  office. 

(1)  Civil  offices  which  can  not  be  held Page  810 

d.  Offices  which  can  be  held. 

(1)  In  militia. 

(2)  In  Philippines. 

(a)  Disbursing  officer Page  811 

(b)  Power  of  justice  of  peace. 

(3)  In  State  volunteers. 

(a)  In  District  volunteers. 

e.  Positions  which  are  not  offices. 

(1)  Devising  sewerage  system  for  a  city. 

(2)  Consultingengineertocity  or  State  officials...  Page  813 

(3)  Director  of  business  enterprise. 

(4)  Attending  civilian  patients  as  surgeon. 

(5)  Consulting  engineer  to  city  board. 

(6)  Country  under  military  control. 

(a)  In  Cuba  and  Porto  Rico. 

(b)  In  Philippine  Islands. 

[1]  Administered  by  the  Army Page  813 

[2]  When  administered  by  the  civil  govern- 
ment. 
[3]  Detail  with  governor  general Page  814 

(7)  Advisory  duty  in  connection  with  international  boundary 

commission. 

B.  Under  Section  1224,  Revised  Statutes. 

1.  Assisting  in  engineer  work  for  State Page  815 

2.  Detailed  with  World's  Fair  Commission. 

C.  By  Appointment  of  Successor. 

D.  By  Resignation. 

1.  May  be  revoked  before  acceptance. 

2.  By  an  insane  officer Page  816 

3.  With  pledge 


office:  synopsis.  795 

IV.  VACATION  OF  OFFICE— Continued. 

D.  By  Resignation — Continued. 

4.  Of  deserter. 

5.  Acceptance  of  resignation. 

a.  May  be  refused. 

b.  Power  to  accept  may  be  delegated. 

c.  Notification  of  acceptance. 

(1)  Constructive  notification. 

(2)  By  appointment  of  successor Page  817 

d.  Not  revocable  after  notification. 

(1)  Even  if  acceptance  is  infuturo. 

(2)  Remarks  in  acceptance. 

6.  Character  of  discharge. 

E.  Dismissal. 

1.  By  sentence  of  court-martial. 

a.  Date  of  confirmation  fixes  date  of  dismissal. 

(1)  Previous  date  can  not  be  fixed Page  818 

(2)  Case  of  failure  of  notification  due  to  capture  by  enemy. 

b.  Irrevocable  if  legal. 

(1)  If  illegal,  office  not  vacated. 

(a)  De  facto  officer  mustered  in,  vice  officer  illegally 
dismissed Page  819 

c.  Does  not  render  ineligible  for  appointment  to  office  or  enlist- 

ment. 

2.  By  order  of  President. 

a.  Removes  from  office. 

(1)  Whether  members  of  antecedent  advisory  board  were 
sworn  or  not. 

b.  Date  of  is  date  of  notification Page  820 

(1)  Date  fixed  infuturo. 

c.  By  officer  inferior  to  President. 

(1)  By  Secretary  of  War. 

(2)  By  officer  inferior  to  Secretary  of  War. 

d.  Irrevocable. 

(1)  If  revoked  status  of  de  facto  officer  attaches. . .  Page  821 

e.  Character. 

f .  Does  not  render  person  ineligible  for  appointment  or  enlistment. 

g.  Cadets. 

(1)  Smnmarily  discharged. 
(a)  For  cause. 
(6)  Irrevocable, 
(c)  Discharge  is  without  honor. 

F.  By  Failing  to  Pass  Examination  after  Promotion  Subject  to  Exami- 

nation. 

G.  Of  Battalion  Staff  Officers  by  Detail  Elsewhere Page  822 

V.  OFFICE  IN  VOLUNTEERS. 

A.  Appointment. 

1.  Executive  has  power  to  prescribe  rules  of. 

2.  Acceptance  of  Presidential  appointment  necessary. 

3.  Restoration  to  command  of  dismissed  officer. 

a.  Is  new  appointment  if  Volunteer  Army  still  exists. 

b.  Impossible  after  Volunteer  Army  has  been  mustered  out. 

4.  State  volunteers. 

a.  Past  appointment  by  governor  not  to  be  held  to  be  unconstitu- 

tional. 

b.  Governor  appoints  by  authority  of  United  States  under  act  of 

April  22,  1898 ., Page  82S 


796  OFFICE  I. 

V.  OFFICE  IN  VOLUNTEERS— Continued. 
A.  Appointment — Continued. 

4.  State  volunteers — Continued. 

c.  Office  in  State  volunteers  analogous  to  military  office  in  Regular 

Army. 

d.  Three  parties  to  the  appointment — the  United  States,  the  State, 

and  the  individual. 

e.  Power  to  appoint  includes  power  to  fill  vacancies. 

5.  Vesting  of  office. 

a.  When  appointed  by  President. 

(1)  Date  of  acceptance  fixes  date Page  824 

(2)  Even  if  remedial  legislation  gi\  es  pay  for  service  pre- 

vious to  date  of  acceptance. 

b.  Appointment  by  governor. 

(1)  Volunteer  office  vests  through  muster-in  only. 

(2)  Date  of  muster-in  fixes  date  of  vesting. 

(3)  Date  previous  to  muster-in  can  not  be  fixed. 

6.  De  facto  officers. 

a.  Acts  lawful  as  far  as  rights  of  third  persons  are  concerned. 

7.  Vacation  of  office. 

a.  By  accepting  another  office  in  the  volunteers Page  825 

b.  By  abandoning  office. 

c.  By  summary  dismissal. 

d.  Two  offices  may  be  held  without  vacating  either,  viz: 

(1)  Public  civil  officer  may  accept  a  volunteer  commission. 

(2)  Volunteer  officer  holding  office  in  Regular  Army. 

(a)  Regular  office  vesting  first. 

(6)  Volunteer  office  vesting  first Page  826 

e.  By  abolishing  office. 

f.  By  sentence  of  general  court-martial. 

I.  A  public  office  ^  is  a  place  created  by  statute  or  b^  virtue  of  a 
power  conferred  by  statute,  for  the  purpose  of  the  adnunistration  of 
public  affairs,  and  the  holder  of  which  is  appointed  or  elected  and  not 

^  An  office  is  a  public  station  or  employment,  conferred  by  the  appointment  of 
government.  The  term  embraces  the  ideas  of  tenure,  duration,  emolument,  and 
duties.  The  duties  are  continuing  and  permanent,  not  occasional  and  temporary,  and 
are  defined  by  rules  prescribed  by  government  and  not  by  contract.  U.  S.  v.  Hart- 
well,  6  Wall.  385;  U.  S.  v.  Germaine,  99  U.  S.  508.  See  also  U.  S.  v.  Mouat,  124 
id.  307;  U.  S.  v.  Maurice,  2  Brock.  98  (Federal  Cases,  No.  15747);  U.  S.  v.  Bloom- 
gart,  2  Benedict,  356  (Federal  Cases,  No.  14612);  In  re  Hathaway,  71  N.  Y.  238;  Row- 
land V.  Mayor,  83  id.  372;  People  v.  Duane,  121  id.  367;  In  re  Corliss,  11  R.  I.  640; 
Wilcox  V.  People,  90  111.  186;  Throop  v.  Langdon,  40  Mich.  673;  State  v.  De  Gress, 
53  Tex.  387;  13  Opins.  Atty.  Gen.  310;  20  id.  686;  4  Comp.  Dec.  696,  and  authorities 
cited.  A  public  officer  is  the  incumbent  of  an  office  "who  exercises  continuously, 
and  as  a  part  of  the  regular  and  permanent  administration  of  the  Government,  its  pub- 
lic powers,  trusts,  and  duties."  Sheboygan  Co.  v.  Parker,  3  Wall.  93.  In  view  oi  the 
provisions  of  the  Constitution  as  to  the  appointment  of  officers,  unless  a  person  in  the 
service  of  the  United  States  holds  his  place  by  virtue  of  an  appointment  by  the  Presi- 
dent, or  of  one  of  the  courts  of  law,  or  heads  of  departments,  authorized  by  law  to  make 
such  appointment,  he  is  not,  strictly  speaking  an  officer  of  the  United  States.  U.  S. 
V.  Germaine,  99  U.  S.,  508;  U.  S.  v.  Mouat,  124  id.  307;  U.  S.  v.  Smith,  id.  525;  1  Comp. 
Dec.  540;  4  id.  703;  5  id.  649.  An  officer  of  the  Army  or  Navy  of  the  United  States 
holds  his  office  at  the  will  of  the  sovereign  power,  and  not  by  contract.  Crenshaw  v. 
U.  S.,  134  U.  S.  99  (24  C.  C.  57).  Rank  is  not  office.  Cloud  v.  U.  S.,  43  C.  C.  69.  A 
military  office  is  a  public  office.  Oliver  v.  Jersey  City,  63  N.  J.  Law,  96  (34  Vr.  96  or 
42  Atlantic  782).  For  same  case  in  court  of  errors  and  appeals  of  N.  J.  see  63  N.  J. 
Law  634  (34  Vr.  634  or  44  Atlantic  709);  Kerr  v.  Jones,  19  Ind.  351. 


OFFICE   I   A.  797 

<'inployed  by  contract  merely,  and  is  vested  with  functions  involving 
t  he  action  of  some  part  of  the  macliinery  of  government  (legislative, 
(vecutive,  or  judicial)  belonging  to  the  political  community  whose 
:n-ent  he  is.  C.  2301,  May,  1896;  R.  26,  652,  July,  1868;  28,  22, 
July,  1868;  30,  p.  437,  June,  1870. 

I  A.  OflBices  are  created  by  law  and  the  power  to  create  an  office 
involves  the  corresponding  power  to  prescribe  the  necessary  incidents 
of  such  office  such  as  tenure,  salary,  emoluments,  and,  within  certain 
limits,  conditions  of  eligibiht:^'.     C.  23122,  Apr.  22,  1908. 

II  A.  As  all  offices  in  the  mihtaiy  establishment  are  created  by  law, 
the  Executive  is  without  authority  to  establish  or  maintain  offices  which 
are  not  expressly  provided  for  in  suitable  enactments  of  Congress  or 
to  increase  their  number  unless  authorized  to  do  so  by  law,  either 
expressly  or  by  necessary  implication.^     C.  15844,  J(^'^-  ^U  i904. 

II  A  1 .  An  officer  of  volunteers  was  sentenced,  by  a  general  court- 
martial,  to  be  dismissed  the  service  and  to  be  confined.  He  was 
later  pardoned  by  the  President,  who  used  the  words:  "Restore him 
to  his  former  rank  and  position  in  the  service."  In  the  mean  time  the 
regiment  of  which  he  had  been  an  officer  had  been  mustered  out. 
Held  that  although  the  lan^age  of  the  President  was  fit  and  proper  for 
an  appointment  to  office,  it  did  not  operate  to  invest  the  man  with 
office  since  the  office  had  ceased  to  exist.     C.  23071,  Apr.  11,  1908. 

II B.  The  Constitution  vests  in  Congress  the  power 'Ho  raise  and 
support  armies."  In  the  exercise  of  that  power  Congress  determines 
the  composition  of  the  commissioned  personnel  of  the  several  branches 
of  the  fine  and  departments  of  the  staff.  Held  that  it  is  the  duty  of 
the  appointing  power  to  see  to  it  that  the  offices  which  make  up  the 
several  branches  of  the  mifitary  establishment  are  at  all  times  kept 
filled  to  their  authorized  statutory  strength.     C.  21053,  Mar.  8,  1910. 

II  C.  Advancement  in  the  mifitary  estabhshment  may  be  had  in 
two  ways — by  promotion  or  by  appointment.  Thus,  an  officer  of  a 
particular  branch  of  the  line  or  department  of  the  staff  may,  upon  the 
occurrence  of  a  vacancy  in  his  arm  or  department,  be  advanced  to 
fill  a  vacancy  caused  by  the  death,  resignation,  dismissal,  etc.,  of  a 
superior  in  the  same  line  of  promotion;  or  a  vacancy  may  occur  in  the 
lowest  grade  of  a  staff  department,  and  may  thus  be  filled  by  appoint- 
ment, that  is,  by  the  selection  of  a  duly  quahfied  person,  and  by  his 
nomination  and  confirmation  in  the  manner  prescribed  in  the  Con- 
stitution.    C.  19425,  Mar.  17, 1906. 

II  D.  Where  an  officer  duly  appointed  to  office  refuses  to  accept,  his 
successor  is  nominated  in  his  place  and  not  in  that  of  the  preceding 
incumbent.     C.  23983,  Oct  7, 1908. 

II  E.  Where  an  appointment  to  a  specific  military  office  has  been 
duly  made  and  accepted  and  has  taken  effect,  held,  that  the  appoint- 

^  Maj.  Gen.  John  C.  Fremont,  commanding  the  Western  Department  in  1861,  claimed 
the  right  to  appoint  officers  to  existing  offices  and  to  offices  that  did  not  exist  except 
as  to  the  claim  that  his  appointment  created  such  offices,  and  actually  made  such 
appointments.  He  had  no  power  to  create  office,  and  no  authority  to  appoint  officers 
to  public  office.  See  R.  and  P.  456,  829.  Power  of  appointment  under  the  United 
States  can  not  be  communicated  by  act  of  Congress  to  persons  not  named  to  that  end 
by  the  Constitution.  8  Opins.  Atty.  Gen.  41.  The  President  can  not  appoint  a 
greater  number  of  quartermasters  in  the  regular  Army  than  that  fixed  by  law.  Mont- 
gomery V.  U.  S.,  5  C.  C.  93.  Appointments  can  not  be  made  by  legislative  enactment. 
Wood  V.  U.  S.,  15  C.  C.  151.  For  constitutional  rule  governing  appointments  to  office 
see  13  Opin.  Atty.  Gen.  516;  15  id.  3,  17  id.  537,  and  23  id.  574. 


798  orpicE  III  Ala. 

ing  power,  as  to  that  office,  is  exhausted.  The  Executive  may  indeed 
correct  an  error  (of  fact)  in  the  date  of  such  appointment,  but — no 
such  error  existing — he  can  not  remake  the  same  as  of  a  different 
and  earher  date,  either  by  his  own  action  or  by  means  of  a  renomina- 
tion  to  the  Senate,  for  the  purpose  of  redressing  an  injury  or  grievance 
claimed  by  the  officer  to  have  resulted  from  the  date  originally  given 
to  the  appointment.  For  such  would  be  a  granting  of  relief,  and 
relief  of  a  sort  which  can  be  accorded  only  by  Congress.^  R.  43, 
208,  Feh.,  1880;  G.  19650,  May  7, 1906. 

Ill  Ala.  Held  that  the  legislation  of  Congress  in  regulating  appoint- 
ments to  the  lowest  commissioned  grade  in  the  Army  recognizes  the 
graduating  class  of  the  United  States  Military  Academy  as  the  prin- 
cipal and  primary  source  of  suppl;^,  and  failing  from  this  source  in  the 
numbers  necessary  to  fill  vacancies,  it  recognizes  for  such  appoint- 
ments applicants  from  among  quahfied  enlisted  men  and  from  civil 
life  in  that  order.  Held  further  that  all  vacancies  existing  July  1 
each  year  after  assignment  of  the  graduating  class  has  been  made  are 
open  to  the  competition  of  enHsted  men;  that  quahfied  civilians  are 
eligible  for  appomtment  only  to  such  vacancies  as  remain  after  the 
list  of  enlisted  competitors  is  exhausted;  that  remaining  vacancies 
and  those  thereafter  occurring  are  properly  reserved  for  the  next 
graduating  class.^  C.  20217,  Aug.  6,  1906;  3805,  June,  1897;  28118, 
Apr.  8, 1911,  and  July  5,  1911.  ^ 

III  A  1  b  ( 1) .  Where  a  soldier  who  had  not  been  naturalized 
desired  to  compete  for  appointment  as  a  lieutenant,  Tield  that  he 
should  be  discharged  and  reenlisted  immediately  upon  the  completion 
of  his  naturaHzation.^  P.  57,  155,  Dec,  1892;  62,  186,  Oct.,  1898; 
0.  8366,  July,  1897;  19108,  Jan.  29, 1906. 

Ill  A  1  b(2).  The  requirement  of  the  act  of  July  30, 1892(27  Stat. 
336) ,  that  enlisted  men  should  be  less  than  30  years  of  age  in  order 
to  '^compete"  does  not  require  that  they  shall  be  under  that  age  at 
date  of  appointment.     0.  204U,  Oct.  2,  1906;  17381,  Jan.  18,  1905. 

Ill  A  1  b(3)  (a).  In  the  computation  of  the  two  years  which  an 
enhsted  man  must  have  served  before  he  becomes  eligible  for  appoint- 
ment to  the  grade  of  second  lieutenant,  under  the  act  of  July  30, 
1892  (27  Stat.  336) ,  lield  that  absence  on  furlough  shall  not  be  excluded 
therefrom.     G.  1989,  Bee.  26,  1895. 

Ill  A  1  b  (4).  Section  3  of  the  act  of  July  30,  1892,  provides  "that 
no  more  than  two  examinations  shall  be  accorded  to  the  same  com- 
petitor." Held  that  the  physical  examination  required  is  merely 
prehminary  to  the  mental,  and  a  failure  to  pass  it  does  not  constitute 
an  examination  within  the  meaning  of  the  statute.  There  must  be 
two  failures  to  pass  the  competitive  mental  examination  to  render 
the  candidate  ineligible  for  further  examination.     G.  9521 ,  Jan.,  1901 . 

Ill  A  1  b(5)  (a).  Held  that  when  a  soldier  holding  a  "Certificate 
of  Ehgibility"  for  appointment  to  a  second  lieutenantcy  either 
marries  or  fails  to  reerdist  after  discharge  ( G.  4^18,  May,  1898;  8577, 
Oct.,  1897;  18038,  May  27,  1905)  or  becomes  physically  disqualified 

^  Section  3  Op.  Atty.  Gen,,  307. 

2  36  Stat.  1045,  Mar.  3,  1911. 

The  Attorney  General  held  that  the  word  "appointment"  as  used  in  sec.  1219, 
R.  S.,  applies  only  to  original  entry  into  the  regular  service  or  his  subsequent  ap- 
pointment by  selection,  and  does  not  include  his  appointment  on  promotion.  See 
17  Op.  Atty.  Gt^n.,  196,  reversing  id.,  34. 

3  See  act  of  July  30,  1892  (27  Stat.  336). 


OFFICE  III  A  1  C  (l).  799 

for  active  service,  he  is  no  longer  eligible  for  such  appointment.* 
C.  3577,  Oct.,  1897. 

Ill  A  1  c  (1).  Held  that  under  section  4  of  the  act  of  May  27, 
1908  (35  Stat.  392),  the  President  may  appoint  persons  who  are  not 
citizens  of  the  United  States  but  are  citizens  oi  Porto  Rico  to  the 
office  of  second  lieutenant  in  the  Porto  Rico  Regiment  of  Infantry. 
Held  further  that  the  act  in  question  is  a  legislative  suggestion  to 
the  President  to  give  special  recognition  in  making  such  appoint- 
ments to  the  citizens  of  Porto  Rico,  whether  they  be  civiHans  pure 
and  simple  or  enlisted  men  of  the  Porto  Rico  Regiment  of  Infantry. 
C.  23668,  Apr.  28,  1909. 

Ill  A  1  c  (2).  There  is  no  statute  or  regulation  which  prevents  a 
citizen  of  Porto  Rico  from  being  appointed  an  officer  of  the  Medical 
Corps;  the  instructions  to  candidates  for  examination  being  in  the 
nature  of  a  self-imposed  restriction  on  the  appointing  power,  sug- 
gested that  it  be  waived  as  to  citizens  of  Porto  Rico.  C.  17488, 
Jan.  30,  and  May  4,  1905. 

Ill  A  1  c  ( 3) .  Held  that  a  civilian  is  not  eligible  for  appointment 
to  a  commissioned  office  in  the  Army  if  at  the  date  of  the  issue  of 
the  commission  he  is  older  than  the  limiting  age  fixed  by  law  for 
civil  appointees.2     C.  20639,  Dec.  16,  1911,  and  Jan.  18,  1912. 

Ill  A  2.  A  man  was  appointed,  by  a  recess  appointment,  to  the 
office  of  captain  and  adjutant  general  of  Volunteers.  Upon  the  con- 
vening of  Congress  he  was  nominated  to  the  same  grade,  but  the 
Senate  rejected  his  nomination.  Held  that  this  rejection  did  not  of 
itself  oust  him  from  office;  and  if  no  action  had  been  taken  by  the 
President  thereon  his  occupation  of  office  would  have  contmued 
until  the  end  of  that  session  of  Congress.^     0.  9096,  Oct.  10,  1900. 

Ill  A  3.  A  recess  appointment  is  not  continued  by  a  new  appoint- 
ment and  commission  submitted  during  a  session  of  the  Senate ;  the 
latter  is  a  new  and  distinct  appointment.*  C.  2805,  Dec,  1896; 
7790,  Mar.  8,  1900;  11466,  Oct.  5,  1901;  17480,  Feb.  2,  1905. 

'  See  22  Op.  Atty.  Gen.,  91. 

2  See  act  of  Mar.  3,  1911  (36  Stat.  1045). 

3  See  2  Op.  Atty.  Gen.,  336;  4  id.,  30;  CI.  3,  sec.  2,  Art.  II  of  the  Constitution  pro- 
vides that  the  President  shall  have  power  to  fill  up  all  vacancies  that  may  happen 
during  the  recess  of  the  Senate,  etc.  Held  by  the  Attorney  General  that  the  words 
"may  happen  during  the  recess"  are  equivalent  to  "may  happen  to  exist  during 
the  recess."  1  Op.  Atty.  Gen.,  631.  Also  held  that  the  exercise  of  this  power  by  the 
President  is  not  limited  to  filling  those  vacancies  which  occur  during  the  recess.  2 
Op.  Atty.  Gen.,  525.  Also  held  that  he  may  fill  vacancies  by  recess  appointment 
that  occur  due  to  an  omission  of  the  Senate  to  act  on  a  nomination.  3  Op.  Atty.  Gen., 
676;  and  4  id.,  523.  The  President  has  full  and  independent  power  to  fill  vacancies 
in  the  recess  of  the  Senate  without  any  limitation  as  to  the  time  when  they  first 
occurred.  12  Op.  Atty.  Gen.,  32,  and  449  and  455;  14  id.,  563;  15  id.,  207;  16  id., 
523.  A  vacancy  occurring  during  a  temporary  adjournment  of  the  Senate  is  one  hap- 
pening "during  the  recess  of  the  Senate"  which  the  President  may  fill  by  a  commis- 
sion expiring  at  the  end  of  their  next  session.  Gould  v.  U.  S.,  19  Ct.  Cls.,  593,  contra, 
23  Op.  Atty.  Gen.,  599. 

^  A  recess  appointment  is  made  pursuant  to  the  authority  contained  in  Art.  Ill, 
sec.  2,  par.  3,  of  the  Constitution,  which  provides  that:  "The  President  shall  have 
power  to  fill  up  all  vacancies  that  may  happen  during  the  recess  of  the  Senate  by 
granting  commissions  which  shall  expire  at  the  end  of  their  next  session." 

9  Wheaton,  720,  721;  2  Op.  Atty.  Gen.,  336;  1  Fed.  Rep.,  104,  109;  20  id.,  379, 
382;  Dig.  2d  Comp.  Dec.  (1869),  vol.  1,  sec.  152,  p.  22. 

The  Senate  may  not  originate  an  appointment.  Neither  can  it  vary  the  conditions 
of  appointments  submitted  by  the  President.    3  Op.  Atty.  Gen.,  189. 


800  OFFICE  III  A  4  a. 

Ill  A  4  a.  The  President  appoints  all  cadets  ^  to  the  Military 
Academy.  Heldy  that  the  nomination  to  the  President,  by  Members 
of  Congress,  of  applicants  for  such  cadetships  rests  on  custom  alone, 
which  has  been  unbroken  for  such  a  length  of  time  as  to  have  acquired 
the  character  of  established  Executive  practice  and  that  no  change 
should  be  made  in  the  custom  without  legislative  sanction.  C.  2292A, 
Jan.  7,  1911. 

Ill  A  4  a  (1).  W^®^®  ^  cadet  has  been  found  deficient  and,  as  a 
result,  has  been  discharged  from  the  military  service,  his  return  or 
reappointment  to  the  Academy  is  in  the  nature  of  a  new  appointment. 
Held,  however,  that  the  age  limit  for  the  admission  of  cadets,  set 
forth  in  sec.  1317  R.  S.,  does  not  apply  to  such  reappointment,  since 
the  provisions  of  sec.  1325  R.  S.,  fix  no  age  limit,  the  object  of  return- 
ing or  reappointing  the  dismissed  cadet  being  to  permit  of  his  con- 
tinuing or  fulfilling  a  career  already  begun.  C,  16602,  July  26, 190A, 
and  Mar.  22,  1912. 

Ill  A  4  b.  Held,  that  as  the  Volunteer  Army  act  of  April  22,  1898 
(30  Stat.  361),  contains  no  express  provision  for  the  appointment  by 
any  one  of  the  regimental  (field  and  staff)  officers  of  a  volunteer  regi- 
ment composed  of  companies  taken  from  two  or  more  States,  the 
President  may,  under  section  2  of  article  2  of  the  Constitution,  appoint 
such  field  or  staff  officers.^     C.  4624,  July,  1898. 

Ill  A  4  c.  The  Constitution  (Art.  II,  sec.  2,  par.  2)  provides  that 
"  Congress  may  by  law  vest  the  appointment  of  inferior  officers  in  the 
President  alone,  in  the  courts  of  law,  or  in  the  heads  of  departments. " 
So,  where,  in  three  several  cases.  Congress,  by  special  legislation, 
authorized  the  President  to  '' restore,"  or  ''reinstate,"  in  his  former 
rank  and  office,  an  officer  (who  had  been — as  expressed  in  the  act,  or 
indicated  by  the  reports  of  committees,  debates,  etc. — in  the  opinion 
of  Congress,  erroneously  or  unjustly  dismissed  or  mustered  out),  and 
to  place  him  on  the  retired  list  in  his  previous  grade,  held,  that  such 
legislation  empowered  the  President  to  reappoint  the  party  without 
the  concurrence  of  the  Senate,  and  that  the  simple  act  of  appointment 
by  the  President  alone  fully  invested  the  party  with  the  military 
office.^  R,  4^,  178,  193,  196,  246,  353,  Feh.,  Mar.,  and  July,  1879; 
43, 130,  Jan.,  1880;  C.  18785,  Oct.  25,  1905. 

1  A  cadet  in  the  United  States  Military  Academy  at  West  Point  is  not  an  officer  of 
the  Army  within  the  meaning  of  sec.  1229,  R.  S.,  prohibiting  dismissals  from  service 
in  time  of  peace,  except  after  trial  and  conviction  by  court-martial.  Hartigan  v. 
U.S.,  196  U.S.  169. 

2 See  22  Op.  Atty.  Gen.,  146. 

During  the  Civil  War  a  large  number  of  volunteer  officers  were  appointed  by  the 
President  alone  through  notification  by  the  Secretary  of  War  or  the  Adjutant  General. 
This  class  includes  officers  of  colored  troops  appointed  through  the  bureau  of  colored 
troops,  and  officers  of  white  volunteers  from  States  whose  authorities  refused  or  omitted 
to  respond  to  the  President's  call  for  troops,  officers  of  Territorial  organizations,  the 
Mississippi  Marine  Brigade,  the  Indian  Home  Brigade,  the  First  Army  Corps,  U.  S. 
v.,  and  the  First  U.  S.  Vol.  Eng.     See  R.  and  P.  456,  829. 

^As  to  who  are  inferior  officers  see  Collins  v.  U.  S.,  14  Ct.  Cls.,  568. 

Appointments  to  office  can  be  made  by  heads  of  departments  only  in  those  cases 
which  Congress  has  authorized  by  law,  and  consequently  the  appointment  of  an  agent 
of  fortification  by  the  Secretary  of  War  is  irregular.  U.  S.  v.  Maurice:  Case  No.  15747, 
Fed.  Cases. 

See  this  ruling  confirmed  by  the  Court  of  Claims  in  Collins  v.  United  States,  14 
Ct.  Cls.,  568.  The  Solicitor  General  (16  Op.  Atty.  Gen.,  624)  had  previously  held 
contra. 

See  acts  of  July  22,  1861;  June  21,  1876,  c.  143;  June  19,  1878,  c.  330;  Mar.  3, 1879, 
c.  175. 


OFFICE  III  A  5.  801 

III  A  5.  An  applicant  for  an  original  appointment  as  an  officer  of 
tho  Army  ofTerea,  if  some  alleged  physical  defect  which  stood  in  the 
way  of  his  appointment  were  passed  over,  to  waive  any  future  right 
he  might  have  to  a  pension ;  lield,  that  there  is  no  right  to  exact  from 
such  applicant  a  waiver  of  liis  right  to  a  pension  under  the  statutes. 
It  would,  however,  be  proper  to  make  a  record  of  defects  shown  by 
the  examination  of  the  applicant ;  in  order,  should  the  case  arise,  that 
it  might  be  shown  that  tho  defects  antedated  the  apjDointment  of  the 
person  examined.     C.  25392,  Aug.  6,  1909;  29295,  Dec.  8,  1911. 

Ill  A  6  a.  In  the  case  of  original  appointments  to  office  the  general 
rule  is  that  the  office  vests  on  the  date  of  its  acceptance  oy  the 
appointee,  even  if  the  oath  of  office  is  not  taken  until  afterwards.^ 
C.  28668,  Dec.  7,  1908;  4567,  July  12,  1898;  66U,  June,  1899;  12599, 
May  12,  1902;  16732,  Aug.  17,  1904. 

Ill  A  6  a  (1).  The  appointment  of  a  graduate  of  the  MiUtary 
Academy  to  the  office  of  second  lieutenant  in  the  Army  differs  from 
a  similar  appointment  from  other  sources  in  that  as  the  cadet  has 
signed  articles,  under  the  requirements  of  section  1321,  R.  S.,  to  serve 
the  Government  eight  years,  a  formal  acceptance  is  not  required  of 
him  in  order  to  vest  in  him  the  office  of  second  heutenant.  Held, 
in  a  particular  case  in  which  a  cadet  did  not  furnish  the  oath  of  alle- 
giance required  by  section  1757,  R.  S.,  and  desired  to  sever  himself 
n-om  the  military  service  by  not  accepting  his  appointment  as  second 
lieutenant  and  oy  not  reporting  for  duty,  that  tne  office  had  vested 
at  the  date  of  appointment.  Held,  further,  that  after  the  lapse  of 
the  statutory  period  he  could  be  dropped  for  desertion  as  provided 
in  section  1229,  R.  S.     C.  27241,  Sept.  9,  1910. 

Ill  A  6  b.  In  a  case  in  which  a  sergeant  read  in  the  press  that  he 
had  been  appointed  a  second  lieutenant  and  without  formal  notice  of 
his  appointment  accepted  it  by  letter  to  The  Adjutant  General.  The 
press  notice  was  a  correct  statement  of  the  appointment  Held,  that 
the  sergeant  became  fully  invested  with  the  office  on  the  date  when 
he  mailed  acceptance.^     C.  16732,  Aug.  16,  1904. 

Ill  A  6  c.  Held  that  under  the  acts  of  July  5,  1884  (23  Stat.  112), 
and  February  2,  1901  (31  Stat.  752),  the  office  of  assistant  surgeon, 
with  rank  of  first  lieutenant  in  the  Medical  Department,  vests  when 
the  President  signs  the  appointment  or  commission.^  C.  23135,  Mar. 
10,   1909. 

Ill  A  7  a.  No  statute  of  the  United  States  requires  an  office  to  be 
accepted.  Held  that  under  existing  practice,  however,  an  acceptance 
is  required.  It  may  be  "express"  as  by  a  formal  acceptance  in  writ- 
ing, or  '4mphed"  as  by  entering  upon  the  performance  of  the  duties 
of  the  office.^  C.  27241,  Oct.  7,  1910;  19425,  Mar.  17, 1906;  23668, 
Dec.  7,  1908. 

1  See  U.  S.  V.  Flanders,  112  U.  S.,  88;  U.  S.  v.  Eaton,  169  U.  S.,  331;  IV  Comp. 
Dec,  496,  601;  Vlid.,  672. 

In  the  case  of  an  original  appointment,  if  after  confirmation  by  the  Senate  the 
President  withholds  a  commission,  the  office  does  not  vest.  4  Op.  Atty.  Gen.,  218; 
12  id.,  304. 

2  See  Marbury  v.  Madison,  5  U.  S.,  137. 

3  See  Digest  2  Comp.  Dec.  of  1869,  pars.  1103  and  1105.  Also  see  3  Op.  Attv.  Gen., 
577. 

31106°— 12 51 


802  OFFICE  III  A  8  a  (l). 

Ill  A  8  a  (1).  Neither  a  major  general  commanding  nor  the  Secre- 
tary of  War  can  authorize  an  officer  to  administer  an  oath — such 
authority  must  be  given  by  law.  R.  34,  648,  Dec.  1873;  P.  56,  88, 
Oct.,  1892;  C.  4892,  Sept.  1,  1898. 

Ill  A  8  a  (2).  A  postmaster  is  not  competent  to  administer  the 
oath  of  office  to  an  officer  of  the  Army.  P.  39,  19,  Feh.,  1890;  C. 
26721,  May  14,  1910. 

Ill  A  8  a  (3).  A  graduate  of  the  Military  Academy  having  received 
a  recess  appointment  to  the  office  of  second  lieutenant  and  taken  the 
required  oath,  was  promoted  before  he  had  been  confirmed  a  second 
lieutenant  by  the  Senate.  Held  that  on  his  confirmation  as  a  second 
lieutenant  he  need  not  again  take  an  oath  as  such,  his  acceptance  of 
the  office  to  which  he  had  been  promoted  serving  to  vest  a  new  office 
and  to  vacate  the  office  to  which  he  had  been  originally  appointed. 
Held,  however,  in  the  case  of  an  officer  who  received  a  recess  appoint- 
ment and  took  the  oath  of  office  that  a  new  oath  must  be  taken  on 
confirmation  should  the  officer  at  that  time  hold  the  same  office. 
C.  22670,  Jan.  31,  1908;  22889,  Mar.  13,  1908. 

Ill  A  8  a  (4).  Held  that  an  officer  of  the  Army,  in  entering  upon 
his  office,  could  not  be  allowed  (in  the  absence  of  special  authority 
from  Congress)  to  take  a  modified  oath  of  office  on  the  ground  that  his 
religious  convictions  would  not  permit  him  to  take  the  oath  as  pre- 
scribed in  the  statute.  R.  11,  603,  Feb.,  1865;  19,  89,  Oct.,  1865, 
and  376,  Jan.,  1866. 

Ill  A  8  b  (1),  An  officer  of  the  Army  has  no  authority,  virtute 
officii,  to  administer  an  oath.  He  is  indeed  specially  empowered  to 
exercise  this  function  under  certain  circumstances  by  statute — as 
by  the  second,  eighty-fourth  and  eighty-fifth  articles  of  war;  and 
further  by  section  183,  R.  S.,  in  a  case  where,  being  an  officer  of  the 
War  Department,  he  is  detailed  to  investigate  frauds,  etc.^  R.  34, 
648,  Dec,  1873. 

Ill  A  8  b  (2) .  Held  that  jud^e  advocates  of  departments  (even 
though  line  officers  merely  assigned  to  that  duty,  C.  3746,  Dec, 
1897;  9060,  Oct.,  1900)  and  trial  judge  advocates,  including  trial 
officers  of  summary  courts,  are  authorized  under  the  act  of  July 
27,  1892  (27  Stat.  278),  and  section  1758  R.  S.  to  administer  oaths 
of  military  office.  G.  444^,  June,  1898.  They  may  also  administer 
the  oaths  required  to  be  made  by  officers  who  signed  contracts  under 
section  3745  K.  S.  on  behalf  of  the  Government,  under  the  act  of  July 
27,  1892  (27  Stat.  278).  C.  3671,  Nov.,  1897;  3768,  Jan.  5,  1898; 
4892,  Sept.  1,  1898;  8725,  Aug.  7,  1890.    They  may  also  administer 

1  By  sec.  4  ot  the  act  of  July  27,  1892  (27  Stat.  278),  "judge  advocates  of  depart- 
ments and  of  courts-martial,  and  the  trial  officer  of  summary  courts,  are  *  *  * 
authorized  to  administer  oaths  for  the  purposes  of  the  admmistration  of  military 
justice,  and  for  other  purposes  of  military  administration." 

Under  sec.  19  of  the  act  of  May  28,  1896  (29  Stat.  184),  United  States  commis- 
sioners and  all  clerks  of  United  States  courts  are  authorized  to  administer  oaths  gen- 
erally (III  Comp.  Dec,  65). 

Sec.  183,  R.  S.,  was  amended  Mar.  2,  1901,  to  read  as  follows:  "Any  officer  or 
clerk  of  any  of  the  departments  lawfully  detailed  to  investigate  frauds  on,  or  attempts 
to  defraud,  the  Government,  or  any  irregularity  or  misconduct  of  any  officer  or  agent 
of  the  United  States,  and  any  officer  of  the  Army  detailed  to  conduct  an  investigation, 
and  the  recorder,  and,  if  there  be  none,  the  presiding  officer  of  any  military  board 
appointed  for  such  purpose,  shall  have  authority  to  administer  an  oath  to  any  witness 
attending  to  testify  or  depose  in  the  course  of  such  investigation." 


OFFICE  III  B  1  a  (l).  803 

oaths  to  sureties  on  a  Government  contractor's  bond.*  C.  3768, 
Jan.  5,  1S98.  The  passage  of  the  act  of  Julj  27,  1892,  does  not  affect 
the  power  of  administering  oaths  of  officials  who  were  authorized 
to  do  so  before  the  passage  of  that  act.     P.  56,  408,  Nov.,  1892. 

Ill  B  1  a  (1).  Hem  that  a  civilian  (in  this  case  a  late  captain  who 
had  been  made  a  civilian  by  the  approval  and  execution  of  a  sentence 
dismissing  him  from  the  Arm^)  could,  under  existing  law,  be  appointed 
to  the  line  of  the  Army  only  in  the  grade  of  second  lieutenant,  in  the 
absence  of  express  authority  from  Congress. ^  For  his  appointment 
to  his  former  grade,  so  as  to  except  his  case  from  the  operation  of  the 
rule  of  promotion  by  seniority,^  the  authority  of  Consjress  would  be 
necessary.*  R.  29,  47,  June,  1869;  37,  363,  Mar.,  ^1876;  38,  159, 
July,  1876;  39, 525,  May  1, 1878;  43, 130,  Jan.,  1880.  Held  that  pro- 
motion by  seniority  is  required  for  the  Porto  Rican  Regiment. 
0.  13323,  Sept.  18,  1902. 

Ill  B  1  a  (2).  An  officer  who  is  senior  in  his  grade  is  ineligible, 
while  under  a  legal  sentence  of  suspension  from  rank,  to  promotion 
to  a  vacancy  occurring  in  a  higher  grade  pending  the  term  of  his 
suspension.  Upon  such  vacancy,  the  next  senior  officer  becomes 
entitled  to  the  promotion  in  his  stead.  R.  7,  8,  Jan.,  1864;  28,  164, 
Oct.,  1868;  33,  69,  June,  1872;  37,  536,  May,  1876. 

Ill  B  1  a  (3).  The  suspension  from  promotion,  upon  failure  to 
pass  a  qualifying  examination,  is  in  the  nature  of  a  penalty,  and  the 
suspension  becomes  operative  w^hen  the  right  of  the  officer  to  pro- 
motion would  have  accrued  had  he  passed  a  satisfactory  examination^ 
C.  15028,  July  30,  1903.  Such  suspension  runs  for  one  year,  in  any 
event,  and  until  a  vacancy  occurs  to  which  the  officer  can  be  appointed 
should  he  succeed  in  passing  his  examination.  C.  15028,  July  30, 
1903;  15097,  July  29,  1903;  15561,  Nov.  30,  1903;  23096,  Apr.  18, 
1908,  May  12,  1910. 

Ill  B  2.  There  is  no  vested  right  in  promotion  as  such  on  the  part 
of  officers  of  the  Army.  All  that  can  be  said  is  that  officers  have 
certain  rights  of  promotion  under  whatever  may  be  the  law  from  time 
to  time.  These  rights  vary  with  the  law.  Congress  may  change  the 
date  of  an  officer's  commission  so  as  to  give  him  a  right  of  promotion 
over  other  officers  who  ranked  him  before,  and  so  postpone  their  right 
to  his.  Thus,  where  an  act  of  Congress  authorized  the  President  to 
issue  a  new  commission  to  a  lieutenant,  the  effect  of  which  would  be 
to  give  him  a  precedence  over  24  other  officers,  held  that  such 
legislation  was  within  the  power  of  Congress,  which  was  the  sole 
judge  as  to  its  expediencjr.  And  lield  that  the  giving  of  authority  in 
such  case  being  one  in  which  individual  rights  were  concerned,  was  to 
be  construed  as  a  requirement  upon  the  President,^  P.  58,  309, 
March,  1893. 

1  By  sec.  4  of  the  act  of  July  27, 1892  (27  Stat.  278),  "judge  advocates  of  departments 
and  of  courts-martial,  and  the  trial  officer  of  summary  courts,  are  *  *  *  authorized 
to  administer  oaths  for  the  purposes  of  the  administration  of  military  justice,  and  for 
other  purposes  of  military  admmistration." 

2  See  sec.  1228,  R.  S. 

3  Promotion  by  seniority  is  now  required  by  the  act  of  Oct.  1,  1890  (26  Stat,  562). 
*  See  14  Ops.  Atty.  Gen.,  2,  164  and  499. 

^  Supervisors  o).  U.  S.,  4  Wallace,  435. 

Where  there  are  two  or  more  offices  of  the  same  grade  in  a  corps,  each  requiring  a 
separate  commission,  on  a  vacancy  the  appointing  power  may  appoint  the  senior  of 
the  next  lower  grade  to  either.    17  Op.  Atty.  Gen.,  465. 


804  OFFICE  III   B  3  a. 

Ill  B  3  a.  In  the  case  of  an  appointment  to  a  vacancy  which 
leads,  by  promotion,  to  higher  grades  of  rank  in  the  military  estab- 
lishment, lield  that  the  ofhce  vests  in  the  appointee  when  the  appoint- 
ing power  has  been  fully  exercised  in  respect  thereto.^  C.  15262, 
Sept.  8,  1903;  19425,  Mar.  17,  1906. 

Ill  B  3  a  (1).  In  cases  of  promotion  an  office  vests  on  the  date  of 
the  appointment  or  commission  on  condition  always  that  the  appoint- 
ment or  commission  is  thereafter  accepted.  In  the  case  of  an  officer 
who  died  before  the  Senate  had  confirmed  his  nomination  to  an  office 
by  promotion,  Tield  that  due  to  the  death  of  the  officer  and  the  conse- 
quent lack  of  an  acceptance  of  the  office,  the  office  had  not  vested.^ 
C.  28369,  May  19,  1911;  7050,  Oct.  6,  1900;  12599,  May  12,  1902; 
16732,  Aug.  17,  1904;  19650,  May  5,  1906;  16359,  Dec.  28,  1911. 
Held,  that  the  office  does  not  vest  without  acceptance  even  if  the 
appointment  had  been  confirmed  by  the  Senate.^  C.  16359,  Dec.  28, 
1911. 

Ill  B  3  a  (2).  A  vacancy  in  the  list  of  lieutenant  colonels  occurred 
March  1.  The  President  could,  March  1  and  on  each  successive  date, 
have  appointed  the  senior  major  to  the  vacant  lieutenant  colonelcy. 
He  did!^  appoint  him  a  lieutenant  colonel  March  1 1 .  Held  that  the 
major  became  fuUy  invested  with  the  new  office  of  lieutenant  colonel 
March  1 1 .  Had  specific  duties  been  attached  by  law  to  the  office  of 
lieutenant  colonel  and  had  a  penalty  been  imposed  by  law  for  non- 
performance, no  duty  of  performance  would  have  been  required  of 
the  major  prior  to  the  vesting  of  the  office  of  lieutenant  colonel, 
March  11;  nor  in  the  event  of  nonperformance  would  he  have  been 
fiable  to  the  enforcement  of  the  penalty.  G.  14473,  Apr.  11,  1903, 
and  Apr-  9, 1906. 

Ill  fe  3  a  (3).  The  nomination  of  a  first  lieutenant  to  the  office  of 
captain  was  made  by  the  President  to  the  Senate.  The  nomination 
was  confirmed  and  a  commission  made  out  and  signed.  Before 
delivery,  however,  the  President  was  made  aware  of  certain  charges 
against  the  moral  character  of  the  officer  and  the  commission  was 
not  delivered.  Held,  that  the  law  and  the  regulations  governmg 
the  advancement  of  the  officer  had  been  fully  executed;  *  that  the 
office  of  captain  had  been  fuUy  vested  in  the  officer  and  could  only 
be  divested  by  regular  procedure.     C.  22818,  Apr.  21,  1908. 

Ill  B  3  a  (4)  {a).  Held,  that  where  an  officer  whose  right  to  pro- 
motion has  accrued,  in  the  operation  of  the  act  of  October  1,  1890 
(26  Stat.  562),  is  obliged  by  reason  of  sickness  to  remain  absent 
from  the  place  where  a  board  for  his  examination  has  been  convened 
by  the  President,  such  sickness,  when  verified  by  the  proper  medical 

^  A  mere  notification  that  an  examination  has  been  passed,  held  sufficient  as  an 
appointment  to  office.  (95  U.  S.,  760  )  In  the  case  of  Marbury  v.  Madison,  the 
Supreme  Court  held  that  as  to  an  officer  who  is  not  removable  by  the  President,  the 
signing  and  sealing  of  a  commission  vested  the  office  irrevocably  in  the  officer,  although 
the  commission  had  never  been  delivered  to  him.  5  U.  S.  50;  and  12  Op.  Atty .  Gen., 
365. 

2  That  an  appointment  is  complete  when  made  out  and  signed  by  the  appointing 
power,  and  confers  on  the  appointee  the  right  to  the  office,  see  Marbury  v.  Madison, 
1  Cranch,  137;  U.  S.  v.  Bradley,  10  Peters,  343;  U.  S.  v.  Le  Baron,  19  How.,  73;  Mont- 
gomery V.  U.  S.,  5  Ct.  Cls.,  93.  The  office,  however,  cannot  be  considered  as  filled 
until  the  appointee  has,  in  fact,  accepted  it.  (Mechem  on  Public  Officers,  sec.  247; 
Am.  &  Eng.  Ency.  of  Law,  1st  Ed.,  vol.  19,  p.  437.) 

3  See  29  Op,  Atty.  Gen.,  254,  Sept.  22,  1911,  for  opinion  on  this  case. 
*  See  Marbury  v.  Madison,  5  U.  S.,  137. 


OFFICE  III  B  3  a  (4)  (h).  805 

authorities,  constitutes  an  exigency  of  the  service  within  the  meaning 
of  section  32  of  the  act  of  February  2,  1901  (31  Stat.  756),  and  that 
such  officer  may  therefore  be  lawfully  advanced  to  the  next  higher 
grade,  subject  to  examination  which  shall  take  place  as  soon  there- 
after as  practicable.     C.  23096,  June  29,  1908. 

Ill  B  3  a  (4)  {h).  An  officer  was  promoted  under  the  provisions  of 
section  32  of  the  act  of  Febniar^  2,  1901  (31  Stat.  756),  without 
examination  and  the  words  "subject  to  examination"  were  written 
on  his  commission.  After  passing  his  examination  he  requested  that 
a  new  commission  be  furnished  him  with  those  words  omitted.  Held, 
tnat,  as  the  office  had  vested,  a  different  commission  coukl  not  be 
issued  to  the  officer  without  another  exercise  of  the  constitutional 
appointingj)Ower,  of  which  the  new  commission  would  be  the  record. 
C.  19267,  Feb.  27, 1906. 

Ill  B  4.  Held  that  it  is  a  peculiarity  in  the  status  of  assistant 
surgeons  and  lieutenants  of  engmeers  and  ordnance  that  promotion 
to  a  higher  grade  results  by  operation  of  law  from  mere  duration  of 
service  and  independently  of  any  action  by  the  appointing  power. 
R.  43,  208,  Feb.,  1880. 

Ill  B  5  a.  In  the  case  of  an  officer  appointed  to  fiU  a  vacancy 
which  was  to  occur  on  a  given  date,  the  officer  entered  upon  the 
duties  of  his  office  on  the  date  of  the  vacancy  but  did  not  communi- 
cate his  acceptance  until  four  days  later,  when  he  requested  that  it 
be  made  effective  from  the  date  he  took  up  his  duties,  held,  that  the 
acceptance  should  be  considered  to  date  form  the  time  this  office- 
hokier  actually  entered  upon  the  duties  of  his  office.  C.  27305, 
Sept.  27, 1910. 

Ill  B  6  a.  An  officer  of  the  line,  on  passing  the  examination  for  a 
vacancy  in  the  Ordnance  Corps,  does  not  become  an  ordnance  officer 
by  a  mere  transfer.  He  must  be  appointed,  confirmed,  and  com- 
missioned in  the  usual  way.     P.  37,  156,  Dec,  1889. 

Ill  C  1.  Prior  to  the  approval  of  the  act  of  January  25,  1907  (34 
Stat.  861),  Lieut.  D.,  an  Infantry  officer,  effected  a  mutual  transfer 
with  Lieut.  M.,  of  tne  Artillery  Corps.  The  nominations  to  effect  the 
transfer  were  confirmed  by  the  Senate  on  January  29,  1907,  two 
days  subsequent  to  the  approval  of  the  act  reorganizing  the  Artillery. 
Held,  that  had  there  been  no  transfer  the  officer  who  exchanged 
with  Lieut.  D.  would  have  been  entitled  to  advancement  in  accordance 
with  the  terms  of  the  reorganization  bill;  and  it  is  clear  that  Lieut.  D, 
succeeded  to  all  the  rights  in  that  regard  which  vested  in  Lieut.  M. 
•  when  the  reorganization  act  became  operative.  Held,  that  Lieut.  D. 
may  lawfully  be  regarded  as  entitled  to  the  advancement  which  is 
conferred  upon  officers  who  were  in  the  Artillery  Corps  at  the  date 
of  approval  of  the  act  of  reorganization.     C.  21053,^  Apr.  9,  1907. 

Ill  D  1.  An  officer  of  the  line  detailed  for  duty  in  a  staff  depart- 
ment in  the  operation  of  section  16  of  the  act  of  February  2,  1901  (31 
Stat.  751),  becomes  during  such  period  of  detail  an  officer  of  the 
staff  department  in  which  he  is  cletailed.  The  vacancy  created  in 
the  fine  of  the  Army  by  his  detail  has  been  ffiled  by  promotion,  and 
during  the  period  of  such  detail  office  in  the  staff  is  as  fully  vested 
in  him  as  if  nis  appointment  in  the  department  in  which  he  is  detailed 
were  permanent;  nis  commission  in  the  line  remains  dormant,  being 
superseded  during  his  incumbency  of  office  in  the  Quartermaster's 
Department  or  elsewhere  by  his  detail  to  the  staff. 


806  OFFICE  m  D  1  a. 

While  so  detailed  he  occupies  precisely  the  same  status  in  respect 
to  the  exercise  of  command  as  other  officers  of  the  staff;  that  is,  he 
can  exercise  command  or  control  in  his  own  department,  but  is,  by 
the  nature  of  his  office,  inhibited  from  exercising  command  elsewhere 
in  the  military  estabhshment  save  by  assignment  of  the  President. 
As  the  detailed  officer  is  during  the  period  of  such  detail  an  officer  of 
the  staff,  he  is  not  entitled,  as  an  officer  of  the  Hne,  to  assume  and 
exercise  the  command  provided  for  in  the  one  hundred  and  twenty- 
second  article  of  war.^    C.  I4OI8,  Jan.  22,  1903. 

Ill  D  1  a.  A  captain  in  the  line  of  the  Army  was  detailed  as  a 
member  of  the  General  Staff  on  January  29, 1904.  Held  that  office  in 
the  General  Staff  vested  on  the  date  of  the  order  promulgating  the 
detail,  and  that  the  statutory  tour  of  dutv  ternunated  four  years 
after  the  date  of  the  order  promulgating  sucn  detail.  C.  15844}  «^«^- 
21,  1904;  22482,  Dec.  2,  1907, 

III  D  1  b.  The  act  of  February  14,  1903  (32  Stat.  830),  provides 
that  ''all  officers  detailed  in  the  General  Staff  Corps  shall  be  detailed 
therein  for  periods  of  four  years,  unless  sooner  relieved."  Held  that 
the  clause  above  cited  places  a  restriction  in  point  of  time  upon  de- 
tails in  the  General  Staff  and  forbids  the  employment  of  officers  for 
periods  differing  from  or  in  excess  of  those  expressly  provided  by 
law.  At  the  end  of  the  statutory  tour  the  further  continuance  of  an 
officer  in  that  form  of  staff  duty  is  without  authority  of  law,  and  the 
Secretary  of  War  becomes  charged  with  the  duty,  largely  ministerial 
in  character,  of  issuing  the  necessary  orders  for  his  relief.  Held, 
also,  that  an  officer  who  has  been  relieved  from  the  General  Staff  prior 
to  the  expiration  of  four  years'  duty  therewith,  may  be  redetailed  to 
complete  an  unexpired  term,  but  such  officer  will  become  ineligible 
as  soon  as  he  shall  have  completed  a  total  of  four  years  of  such  duty. 
Held,  further,  that  while  serving  in  the  General  Staff  Corps  officers 
may  be  temporarily  assigned  to  duty  with  any  branch  of  tne  Army. 
C.  24868,  Apr.  30,  1909. 

Ill  Die.  An  officer  of  the  line,  serving  iq  the  detailed  staff,  is 
eligible,  while  so  serviag,  for  detail  in  the  General  Staff;  this  for  the 
reason  that  section  3  of  the  act  of  February  14,  1903  (32  Stat.  831), 
which  establishes  the  General  Staff  Corps,  authorizes  officers  to  be 
detailed  to  that  corps  from  ''the  Army  at  large." 

Officers  serviQg  ia  the  detailed  staff,  equSly  with  officers  of  the 
liue  and  staff,  constitute  the  Army  at  large,  and,  for  that  reason,  are 
eligible  for  detail  ia  the  General  Staff.     C.  2OI4O,  July  26,  1906. 

Ill  Did.  The  detail  of  a  lieutenant  colonel  in  the  Inspector 
General's  department  being  about  to  expire,  his  redetad  in  the  same 
department  is  asked  for;  held  that  the  case  comes  within  the  except- 
ing clause  of  section  26,  act  of  February  2,  1901  (31  Stat.  755),  the 
officer  not  being  below  the  grade  of  lieutenant  colonel,  and  that  his 
redetad  in  the  same  department  would  be  lawful.  C.  22393,  Nov. 
20,  1907. 

Ill  D  2  a.  In  construing  those  sections  of  the  act  of  February  2, 
1901  (31  Stat.  748),  which  established  the  detail  system  as  a  method 
of  ffiling  vacancies  in  the  several  staff  departments  of  the  Army,  and 
of  the  act  of  February  14,  1903  (32  Stat.  830),  which  established  the 
General  Staff,  it  was  held  that  when  the  right  of  a  detailed  officer  to 
promotion  in  the  line  has  accrued,  such  promotion  involves  his  sepa- 
ration from  the  staff  department  in  which  he  happens  to  be  serving. 


OFFICE  III  D  2  b.  807 

because  his  retention  on  the  staff  would  cause  the  number  of  staff 
officers  in  the  liigher  grade  to  be  increased  by  one,  which  is  forbid- 
den by  the  requirement  that  the  number  of  officers  in  each  particular 
grade  of  the  department  in  which  he  is  detailed  shall  consist  of  the 
number  expressly  stated,  and  no  more.  C.  15004,  July  ^^,  1903; 
15686,  Jan.  8,  1904;  15844,  Jan.  21,  1904;  18515,  Sept.  6,  1905. 

Ill  D  2  b.  A  second  lieutenant  of  cavalry,  while  detailed  in  the 
Ordnance  Department,  was  promoted  to  a  first  lieutenancy  of  cav- 
alry; lield  that  he  was  ineligiole  for  a  redetail  in  the  ordnance,  as  he 
had  not  finished  a  four-year  detail  in  that  department.  C.  15844,  Jo/^^- 
21,  1904;  18515  Sept.  2  and  5,  1905;  13942,  Jan.  13,  1908. 

Ill  D  3.  Held,  that  the  requirements  of  sections  26  and  27  of  the 
act  of  February  2,  1901  (31  Stat.  755),  are  directory  in  character, 
and  that  an  officer  detailed  to  the  staff  upon  the  existence  of  an  emer- 
gency which,  in  the  opinion  of  the  Secretary  of  War,  requires  a  resort 
to  that  course,  may  be  relieved  from  his  assignment  and  may  be 
replaced  by  an  officer  of  the  same  arm  of  service  having  similar  qual- 
ifications.    C.  11466,  Feb.  11,  1902. 

Ill  D  4.  The  fact  that  an  officer  is  serving  by  detail  in  a  staff 
department  does  not  operate  to  prevent  him  from  effecting  a  transfer 
as  a  line  officer  with  an  officer  or  equal  grade  in  the  line  of  the  Army. 
C.  21783,  July  12,  Aug.  22,  1907,  Jan.  29,  1909. 

Ill  E  1.  Paragraph  2,  section  2,  Article  II  of  the  Constitution  pro- 
vides that  *  Congress  may  by  law  vest  the  appointment  of  such  infe- 
rior officers  as  they  think  proper  in  the  President  alone,  in  the  courts 
of  law,  or  in  the  heads  of  departments."  Section  1  of  the  act  of  Feb- 
ruary 2,  1901  (31  Stat.  748),  provided  for  the  organization  of  a  regi- 
ment of  cavalry.  In  the  enumeration  it  includes  two  veterinarians. 
Section  20  of  the  same  act  provided  that  the  two  veterinarians  author- 
ized for  each  cavalry  regiment  and  the  one  authorized  for  each  artil- 
lery regiment  should  receive  the  pay  and  allowances  of  second  lieu- 
temants  mounted.  Held,  that  veterinarians  are  actual  incumbents 
of  military  office;  that  they  are  inducted  into  such  office  in  the  opera- 
tion of  appointments  by  the  Secretary  of  War;  that  they  are  not 
commissioned  officers  as  they  are  not  appointed  by  the  President. 
Held,  further,  that  they  are  appointed  under  the  provision  of  the 
Constitution  cited  above  by  the  Secretary  of  War.  C.  8587,  Oct.  10, 
1910;  10566,  Nov.  5,  1909.  And  when  on  duty  at  the  Service  School 
are  entitled  to  leaves  as  authorized  for  officers.  C.  17388,  May  26, 
1910.  ^ 

III  E  2.  Held  that  paymasters'  clerks  in  the  Army  are  inferior 
officers  of  the  type  that  are  appointed  by  the  Secretary  of  War  under 
paragraph  2,  section  2,  Article  II  of  the  Constitution.^  C.  10603, 
July  7  and  Oct.  7,  1911. 

Ill  E  3.  The  office  of  master  of  the  sword  was  created  by  the  acts 
of  May  10,  1854  (10  Stat.  277),  March  2,  1901  (31  Stat.  914),  and 
March  3,  1905  (33  Stat.  850).  Held  that  the  incumbent  is  appointed 
by  the  Secretary  of  War.     O.  18009,  Mar.  23,  1910. 

1  See  27  Op.  Atty.  Gen.,  493,  and  U.  S.  v.  Hartwell  (73  U.  S.,  385).  See  G.  O.,  103 
and  143,  W.  D.,  series  1911. 

Paymasters'  clerks  in  the  Navy  wear  a  uniform,  have  a  fixed  rank,  and  are  held  by 
the  United  States  courts  to  be  a  part  of  the  Navy  and  amenable  at  all  times  to  trial  by 
naval  courts-martial.  See  Ex  parte  Reed,  10  Otto,  13;  In  re  Bogart,  2  Sawyer,  396; 
United  States  v.  Bogart,  3  Benedict,  257.  But  see  Ex  parte  Van  Vranken,  47  Fed. 
Rep.,  888.     See  also  Cir.  53,  W.  D.,  July  31,  1909. 


808  OFFICE   III  F  1. 

Ill  F  1.  While,  as  provided  in  section  1228,  R.  S.,  an  officer  duly 
dismissed  from  the  army  hy  sentence  of  court-martial  can  be  restored 
to  it  only  by  a  new  appointment;  so,  except  by  a  new  appointment, 
the  President  can  not  restore  an  officer  separated  from  the  Army 
otherwise  than  by  sentence,  viz,  by  summary  dismissal  by  order,  or  by 
being  ''wholly"  retired,  or  by  the  acceptance  of  a  resignation.  Thus 
separated,  the  officer  is  made  a  civilian  as  effectually  as  if  he  had  been 
dismissed  by  sentence;  and,  as  to  a  readmission  to  the  service,  he  is 
in  precisely  the  position  of  a  civilian  who  has  never  been  in  the  Army 
at  all.  He  can  therefore  be  admitted  to  it  only  in  the  mode  pointed 
out  in  the  Constitution  (Art.  II,  sec.  2,  par.  2).  A  revocation  of  the 
order  by  which  he  was  dismissed  or  wholly  retired,  or  of  the  acceptance 
of  his  resignation,  must  (after  notice)  be  quite  futile  and  ineffectual. 
An  order  purporting  to  revolce  a  previous  order  by  which  an  officer 
has  been  legal! v  detached  from  the  military  service  is  a  simple  nullity. 
R.  35,  466,  July,  1874;  ^7,  461,  Apr.,  1876;  39,  474,  Mar.,  1878; 
41,  611,  JxLly,  1879. 

III  G.  The  Regular  Army  was  mainly  distinguished  from  the  other 
principal  contingent  of  the  Army  of  the  United  States  during  the 
Civil  War — the  volunteer  force — hj  the  fact  that  the  tenure  of  office 
of  the  officers  of  the  former  was  not  in  general  limited,  either  expressly 
or  by  impHcation,  to  the  period  of  the  war.  An  unlimited  tenure, 
however,  is  not  a  necessary  or  invariable  incident  of  office  in  the 
Regular  Army.  The  11  new  regiments,  for  example,  added  to  the 
Regular  Army  by  the  act  of  July  29,  1861,  were  ''declared  to  be  for 
service  during  the  existing  insurrection,"  etc.     R.  34,  4^^7  Sept.,  1873. 

IV  A  1 .  It  is  a  rule  of  law  that  when  a  person  holding  one  office 
enters  upon  another,  a  performance  of  the  duties  of  which  is  incom- 
patible with  the  performance  by  him  of  the  duties  of  the  first,  he 
abandons  and  vacates  the  first  office  in  entering  upon  the  second.^ 
P.  40,  153,  Apr.,  1890;  56,  151,  Oct  1,  1892. 

IV  A  1  A.  A  second  lieutenant  of  Cavalry  received  and  accepted 
a  recess  appointment  as  a  first  Ueutenant  of  Artillery.  On  receiving 
notice  of  his  confirmation  by  the  Senate,  he  asked  if  he  might  decline 
his  office  in  the  Artillery  and  revert  to  that  held  in  the  Cavalry. 
Held,  that  by  accepting  office  in  the  Artillery  arm  he  had  vacated  his 

^  In  the  absence  of  a  statutory  prohibition  a  person  may  hold  two  distinct  oflfices, 
places,  or  employments  which  are  not  incompatible,  and  receive  the  compensation 
attached  to  each.  Converse  v.  U.  S.,  62  U.  S.,  463;  75  U.  S.,  33;  99  U.  S.,  510;  U.  S. 
V.  Brindle,  110  U.  S.,  688;  U.  S.  v.  Saunders,  120  id.  126;  Meigs  v.  U.  S.,  19  Ct.  Cls. 
497;  5  Op.  Atty.,  Gen.  768;  19  id.  283;  3  Comp.  Dec.  432;  4  id.  115;  5  id.  9;  6  id.  284, 
683.  But  the  services  for  which  extra  compensation  is  allowed  must,  under  the 
statutes,  be  such  as  have  no  connections  with  the  duties  of  the  officer  and  must  be 
rendered  under  an  appointment  or  employment.  Converse  v.  U.  S.,  21  Howard,  463; 
U.  S.  V.  Saunders,  120  U.  S.  126;  19  Op.  Atty.  Gen.,  283;  5  Comp.  Dec.  9;  6  id.  284,  683. 

Two  offices  are  incompatible  when  a  performance  of  the  duties  of  the  one  will  pre- 
vent or  conflict  with  the  performance  ot  the  duties  of  the  other,  or  when  the  holding 
of  the  two  is  contrary  to  the  policy  of  the  law.  See  Crosthwaite  v.  U.  S.,  30  Ct.  Cls, 
300.  Reversed  on  other  grounds  168  U.  S.  375.  But  when  an  incumbent  of  an  office 
accepts  a  position  incompatible  with  the  one  held  by  him,  the  acceptance  of  the  new 
position  is  an  abandonment  or  resignation  of  the  office  theretofore  held.  Digest  of 
2d  Comp.  Dec,  Vol.  II,  pars.  728,  729,  730. 

In  peace  an  officer  may  cease  to  be  a  member  of  the  Army  by  death,  resignation, 
dismissal  under  sentence  of  general  court-martial,  absence  without  leave  or  absent 
in  confinement  in  prison  after  conviction  for  three  months;  failure  on  examination  for 
promotion;  retirement  (wholly)  on  disability  not  incident  to  service,  by  nomination 
and  confirmation  of  successor. 


OFFICE  IV  A  2  a.  809 

office  in  t\\e  Cavalry  and  that  there  remained  no  mihtary  office  to 
which  he  could  revert.*     0.  2266S,  Jan.  25,  1908. 

IV  A  2  a.  Section  1222,  R.  S.  (act  of  July  15, 1870)  (16  Stat.  319) ,2 
provides  that — **  No  officer  of  the  Army  on  the  active  list  shall  hold 
any  civil  office,  whether  by  election  or  appointment,  and  every  such 
officer  who  accepts  or  exercises  the  functions  of  a  civil  office  shall 
thereby  cease  to  be  an  officer  of  the  Army,  and  his  commission  shall 
be  thereby  vacated."  Held  that  this  provision  was  an  exercise  by 
Congress  of  its  constitutional  power  "to  raise  armies,"  which  includes 
the  power  to  determine  of  whom  they  shall  consist.^  R.  30,  656, 
Aug.,  1870;  35,  54,  Dec,  1873. 

IV  A  2  b.  The  words  "exercises  the  functions  of  a  civil  office" 
were  used  in  section  1222,  R.  S.,  in  order  that  it  might  not  be  neces- 
sary to  prove  in  every  case  that  an  officer  of  the  Army  entering  upon 
a  civil  office  had  qualified  according  to  all  the  formalities  of  the  law, 
but,  rather,  that  the  holding  of  the  office  whether  by  formal  qualifica- 
tion or  otherwise  should  have  the  effect  of  vacating  his  commission 
in  the  Army.  "Exercising  the  functions  of  an  office"  means  some- 
thing more  than  merely  transacting  some  of  the  business  of  an  office 
as  the  agent  of  some  one  else;  it  means  transacting  the  business  by 
virtue  of  holding  the  office.  Thus  where  an  officer  on  the  active  list 
of  the  Army,  after  having  had  conferred  upon  him  by  a  governor  of 
a  State  the  honorary  title  of  colonel  and  assistant  adjutant  general 
in  the  State  militia,  took  temporary  charge  of  the  adjutant  general's 
office  of  the  State  at  the  request  01  the  governor,  during  the  absence 
of  the  adjutant  general,  lield  that  such  action  on  the  part  of  the  officer 
did  not  amount  to  the  acceptance  of  a  civil  office.*     (J.  272,  Sept.,  1894. 

IV  A  2  c.  By  "civil  office"  as  the  term  is  used  in  section  1222, 
R.  S.,  is  meant  civil  puUic  office.  P.  62,  420,  Nov.  29,  1893.  Held, 
that  to  bring  an  office  within  the  prohibition  of  section  1222,  it  is 
necessary  that  the  civil  office  held  by  an  officer  of  the  Army  should 
be  one  created  by  Congress  or  by  a  State  or  municipality.  C.  23931, 
Oct.  3,  1908,  and  Sept.  13,  1911;   19979,  July  3,  1906.     Held,  that 

^  See  20  Op.  Atty.  Gen.,  427,  where  Attorney  General  Miller  held  that  the  accept- 
ance of  an  appointment  as  Chief  of  the  Record  and  Pension  Office,  War  Department, 
by  a  surgeon  of  the  Army  created  a  vacancy  in  the  latter  office,  the  offices  being  held 
to  be  inconsistent. 

And  where  an  appropriation  was  made  for  "the  pay  of  one  assistant  professor  "  of  the 
Military  Academy,  the  act  providing  for  the  appomtment  of  such  professor  in  addition 
to  those  theretofore  authorized.  Attorney  General  Olney  held  that  as  the  term  of  the 
new  office  would  not  begin  until  the  next  fiscal  year,  the  acceptance  of  the  appoint- 
ment thereto  by  an  officer  of  the  Army  would  not  vacate  his  office  until  the  term  of  the 
new  office  actually  commences.  20  Op.,  593.  In  a  decision  of  the  Comptroller  the 
positions  of  "acting  judge  advocate  and  aid  to  a  major  general"  werelield  to  be 
"incompatible,  and  an  officer  is  not  entitled  to  the  additional  pay  of  both  positions 
at  the  same  time."    (V  Comp.  Dec,  971.) 

An  acting  judge  advocatecannothold  the  position  of  A.  D.  C.     (VComp.  Dec,  971.) 

2  Applies  to  Federal  and  State  offices,  and  to  those  for  which  no  compensation  is 
provided  as  well  as  to  those  for  which  compensation  is  allowed.  13  Op.  Atty.  Gen., 
310. 

See  22  Op.  Atty.  Gen.,  88,  June  10,  1898,  in  which  it  is  held  that  section  1222,  R.  S., 
does  not  apply  to  office  in  the  Volunteers.  See  29  id.  298,  Jan.  31  1912,  in  which  he 
held  that  sec.  1222,  R.  S.,  does  not  apply  to  office  in  the  Organized  Militia. 

^  See  United  States  v.  Bainbridge,  1  Mason,  71;  In  re  Riley,  1  Benedict,  408. 

4  See  29  Op.  Atty.  Gen.,  298,  Jan.  31,  1912,  in  which  he  holds  that  sec  1222,  R.  S., 
does  not  prevent  an  officer  on  the  active  list  of  the  Army  from  holding  and  exercising 
the  functions  of  office  in  the  Organized  Militia. 


810  OFFICE  IV  A  2  C  (l). 

the  term  "civil  office"  embraces  not  only  Federal,  State,  Territorial, 
and  municipal  office,  but  also  certain  cases  of  public  civil  employ- 
ment.    C.  18017,  Dec.  6,  1911. 

IV  A  2  c  (1).  Held  that  the  term  civil  office  empioyed  in  section 
1222,  R.  S.,  included  Federal,  State,  county,  or  municipal  office.  R. 
36,  477,  May,  1875;  65,  601,  Apr.,  1888.  So  Md  thsii  an  officer  of 
the  Army  could  not,  without  thereby  vacating  his  military  office, 
accept  or  exercise  the  office  of  park  commissioner  of  the  city  of 
Philadelphia  {R.  80,  655,  Aug.,  1870);  0. 19350,  Mar.  2,  1906;  or  of 
trustee  on  the  board  of  trustees  of  the  Cincinnati  Southern  Railroad  ^ 
{R.  38,  31,  Mar.,  1876)]  these  being  offices  created  by  State  statute. 
So  held  that  a  medical  officer  of  the  Army  could  not  accept  the  office 
of  a  county  physician,  and  retain  his  military  office.  R.  36,  ^77. 
Similarly  y^eZa  that  membership  on  the  "River  Commission  for  Mobile 
River  and  Branches"  is  a  civil  office.  R.  56,  601,  1888.  Similarly 
lield  that  the  "assistant  to  the  postmaster"  at  Mescalero,  N.  Mex., 
can  not  be  filled  by  an  Army  officer  without  vacating  his  commission. 
C.  1854,  Nov.,  1896.  Similarly  held  that  membership  on  the  "Inter- 
national Boundary  Commission"  is  a  civil  office,  and  that  an  officer 
on  the  active  list  could  not,  without  vacating  his  commission,  become 
a  member  of  such  commission.^  C.  2236,  Apr.,  1896.  Similarly 
held  that  an  officer  on  the  active  hst  can  not  hold  the  office  of  "assist- 
ant to  the  Deputy  Commissioner  of  Indian  Affairs,"  without  vacating 
his  commission.     C.  2789,  Bee,  1896. 

IV  A  2  0  (1).  Held  that  the  position  of  a  member  of  the  sanitary 
commission  of  Honolulu  is  a  "civil  office"  within  the  meaning  of 
section  1222,  R.  S.,  and  can  not  be  accepted  by  an  officer  on  the  active 
list  without  placing  in  jeopardy  his  commission  as  an  officer  of  the 
Army.     C.  18017,  Apr.  28,  1911. 

IV  A  2  d  (1).  Where  under  the  laws  of  a  State  the  superintendent 
and  commandant  of  a  military  school  are  entitled  to  military  com- 
missions in  the  militia  of  the  State,  such  commission  not  to  carry  pay 
or  rank  or  command  outside  of  the  school,  held  that  the  acceptance  of 
such  commission  by  an  officer  of  the  Army  detailed  to  the  school  did 
not  come  within  the  prohibition  of  section  1222,  R.  S.  C.  25242, 
July  7, 1909.  Held,  further,  that  section  1222,  R.  S.,  does  not  prevent 
an  officer  on  the  active  list  of  the  Regular  Army  from  accepting  a 
commission  in  the  Organized  Mihtia,  as  such  office  is  not  civil  office.^ 
C.  29273,  Dec.  2,1911. 

IV  A2  d  (2).  On  the  question  of  whether  an  officer  of  the  Army 
could,  without  vacating  his  commission  (sees.  1222  and  1860,  R.  S.), 
hold  a  civil  office  in  the  Philippines,  held  that  in  those  sections  of  the 
Philippines  which  are  still  under  the  jurisdiction  of  the  Philippine 
Commission,  in  contradistinction  to  the  remainder,  which  is  under  the 
joint  jurisdiction  of  the  commission  and  the  Philippine  Assembly,  an 
officer  of  the  Army  could  hold  civil  office,  as  the  commission  is  but  a 
continuation  of  the  government  of  military  occupation;  and  under 
the  latter  officers  who  hold  civil  office  are  doing  military  duty.  C. 
26629,  Sept  30,  1909. 

^  Concurred  in  by  the  Solicitor  General,  15  Op.  Atty,  Gen.,  551. 

2  See  joint  resolution  of  Dec.  12,  1893  (28  Stat.,  1017),  which  authorized  a  specially 
named  officer  to  serve  as  a  member  of  that  commission. 

3  Concurred  in  by  the  Attorney  General  Jan.  31,  1912;  29  Op.  298. 


OFFICE  IV  A  2  d  (2)  (a).  811 

IV  A  2d  (2)  (a).  Where  the  Philippine  Government  had  turned 
over  to  an  officer  of  the  Army  a  sum  of  money  to  be  expended  in 
connection  with  an  exhibit  at  the  World's  Fair,  held  that  the  accept- 
ance of  the  money  by  the  officer  did  not  serve  to  create  him  a  civil 
officer  of  the  Philippine  Government.*     C.  17667,  Feb.  IJ^,  1907. 

IV  A  2  d  (2)  Q)).  On  the  question  of  whether  the  law  of  the  Philip- 
pine Islands  which  gives  to  certain  officers  of  the  Army  the  powers  of 
a  justice  of  the  peace  in  so  far  as  is  needed  in  certain  cases  involving 
the  traffic  in  liquors,  brings  such  offices  within  the  prohibition  con- 
tained in  section  1222,  R.  S.,  TieU,  that  it  does  not.  C.  14939,  July 
13, 1903. 

IV  A  2  d  (3).  Section  10  of  the  act  of  April  22,  1898  (30  Stat.  363), 
provides,  inter  alia,  that  ''the  staff  officers  herein  authorized  for  the 
corps,  division,  and  the  brigade  commanders  may  be  appointed  by 
the  President,  by  and  with  the  advice  and  consent  of  the  Senate  as 
officers  of  the  Volunteer  Army,  or  may  be  assigned  by  him,  in  his 
discretion,  from  officers  of  the  Regular  Army,  or  the  Volunteer  Army, 
or  of  the  militia  in  the  service  of  the  United  States:  Provided,  that 
when  relieved  from  such  staff  service  said  appointments  or  assign- 
ments shall  terminate."  Held,  that  the  acceptance  of  an  assignment 
OS  provided  for  here  would  not  vacate  a  Regular  officer's  commission. 
Held  further,  that  a  nomination  and  confirmation  is  not  required  in 
the  case  of  Regular  officers  so ''assigned."     C.4H9,  May  19,  1898. 

IV  A  2  d  (3)  (a).  Held,  that  m  the  absence  of  statutory  authority 
the  President  can  not  appoint  a  Regular  officer  to  office  in  any  vol- 
unteer force  that  may  be  called  out  from  the  District  of  Columbia. 
C.  4119,  May  12, 1898. 

IV  A  2  e.  Held,  that  a  surgeon  can  accept  a  position  as  teacher  in 
a  medical  college,  which  is  a  private  institution.  C.  18017,  Oct.  23, 
1909.  Held,  also,  that  a  surgeon  may  be  assigned  for  duty  in  the  office 
of  the  head  of  the  Department  of  Health  of  Porto  Rico,  and  that  the 
health  conditions  of  the  Army  and  of  the  people  of  Porto  Rico  are  so 
interdependent  that  there  exists  a  sufficient  military  motive  to  sup- 
port the  detail.     C.  18017,  Mar.  16  and  June  8,  1911. 

Held  that  an  Army  surgeon  could,  without  vacating  his  commission 
under  section  1222  R.  S.,  accept  appointment  as  an  honorary  member 
of  the  P6rto  Rico  anemia  commission,  as  such  membership  does  not 
embrace  the  idea  of  tenure,  duration,  fees  or  emoluments,  rights,  powers 
or  duty .2     C.  18017,  July  28, 1906. 

IVA2  e  (1).  A  resolution  of  the  board  of  supervisors  of  the  city 
and  county  of  San  Francisco  empowered  an  engineer  officer  of  the 
Armj^,  with  others,  to  devise  and  provide  a  system  of  sewerage  for 
that  city  and  county.  Held  that  such  officer,  in  accepting,  would 
not  be  appointed  to  a  civil  office  in  the  sense  of  section  1222,  R.  S., 
but  would  be  simply  employed  (with  the  approval  of  the  Secretary 
of  War)  to  perform  a  certain  temporary  service.  The  case  distin- 
guished from  that  of  Col.  Gillmore,  Corps  of  Engineers.^     P.  64,  64, 

1  See  Carrington  v.  U.  S.,  208  U.  S.,  1. 

2  See  U.  S.  V.  Fisher  (8  Fed.  Rep.,  414);  U.  S.  v.  McCroy  (91  id.  295);  18  Op.  Atty. 
Gen.,  551. 

^  Col.  Gillmore's  case  referred  to  is  reported  in  18  Op.  Atty.  Gen.,  11.  And  see 
Gen.  Meade's  case  in  13  id.  310;  also  case  in  16  id.  499.  Compare  the  still  more  recent 
opinion  of  the  Attorney  General,  in  20  Op.  604. 


812  OFFICE  IV  A  2  e  (2). 

June,  1892;  C.  23931,  Oct.  1,  1908,  and  Sept.  13,  1911;  19976,  July  3, 
1906. 

IV  A  2  e  (2).  A  State  statute  authorized  the  employment,  b^  the 
board  of  water  commissioners  of  a  city,  of  a  person  as  an  engmeer, 
and  the  position  was  offered  to  an  engineer  officer  of  the  Army;  lield, 
that  such  officer,  in  accepting  the  same,  by  the  authority  of  the 
Secretary  of  War,  would  not  be  affected  by  the  provision  of  section 
1222,  K.  S.;  such  a  position  being  in  fact,  as  it  was  designated  in 
terms  in  the  statute,  an  employment  merely,  and  one  of  a  temporary 
and  incidental  character,  and  thus  properly  distinguished  from  an 
office.  R.  37,  54.0,  May,  1876.  And  similarly  lield,  later,  in  regard  to 
the  employment  of  the  same  officer  (under  a  similar  statute)  as  a 
consulting  engineer  to  the  State  engineer;  the  function  of  the  latter 
beinff  the  office  established  by  the  statute,  while  that  of  the  former 
was  but  an  incidental  employment.  R.  43,  307,  May,  1880;  52,  271, 
June,  1887;  C.  19979,  July  3,  1906. 

IV  A  2  e  (3).  There  can  be  no  objection  to  an  officer  investing  his 
private  funds  as  he  pleases;  it  follows  that  he  may  lawfully  invest 
them  in  the  securities  of  an  incorporated  company,  even  though  that 
company  may  at  some  time  stand  in  the  relation  of  a  vendor  to  a 
department  of  the  Government.  So,  also,  an  officer  may  serve  as  a 
director  in  a  business  corporation,  provided  the  performance  of  his 
military  duties  is  not  impaired  or  prevented  by  such  service.^  C. 
22765,  Feb.  17,  1908. 

IV  A  2  e  (4).  So,  also,  an  officer  of  the  Medical  Corps  may  render 
medical  services  to  the  prisoners  in  a  jail  in  the  neighborhood  of  his 
post;  such  service  being  purely  contractual.^  C.  27213,  Aug.  29, 
1910. 

IV  A  2  e  (5).  Held,  that  an  engineer  officer  of  the  Army  may 
accept  employment  as  consulting  engineer  of  the  Board  of  Estimate 
and  Apportionment  of  the  City  ol  New  York.     C.  25912,  Dec.  7, 1909. 

IV  A  2  e  (6)  {a).  The  only  prohibition  in  the  matter  of  Army 
officers  holding  civil  office  is  that  embodied  in  section  1222,  R.  S. 
That  prohibition  forms  part  of  the  act  of  July  15, 1870  (16  Stat.  319.), 
which  accomplished  a  reduction  in  the  strength  of  the  mihtary  estab- 
lishment after  the  increase  of  January  28,  1866.  Held,  that  is 
obviously  applied  to  civil  office  within  the  territorial  and  legislative 
jurisdiction  of  the  United  States  and  of  Congress,  and  had  no  appli- 
cation to  the  performance  of  civil  duties  by  officers  of  the  Army  in 
occupied  territory.  This  for  the  reason  that  military  occupation  is  an 
incident  of  command  and  so  comes  within  the  plenary  and  exclusive 
jurisdiction  of  the  President  as  commander  in  chief,  and  under  ordi- 
nary circumstances  had  application  to  foreign  territory — ^i.  e.,  to 
territory  which  has  not  yet  been  incorporated  into  that  01  the  United 
States.  C.  5771,  Feb.,  1899;  20396,  Apr.  17, 1908.  Thus,  assignments 
of  officers  of  the  Army  to  be  collectors  of  customs  in  Cuba  and  Porto 
Rico,  when  under  mihtary  occupation,  were  assignments  to  military 
duty  and  not  to  civil  offices  within  the  meaning  of  section  1222  R.  S. 
C.  5771,  Feb.,  1899.     Held,  that  officers  so  assigned  may  not  receive 

1  See  7  Opins.  Atty.  Gen.,  156. 

2  An  Army  surgeon  is  entitled  to  remuneration  for  services  rendered  as  physician 
at  an  Indian  agency.  Digest  of  2d  Comp.  Dec,  Vol.  Ill,  pars.  389  and  630;  120 
U.  S.,  126. 


OFFICE  IV  A  2  e  (o)  (&)  [l].  813 

additional  compensation  for  the  execution  of  such  duty.     C.  5771, 
Feb.  2,  1899. 

IV  A  2  e  (6)  (6)  [1].  A  battahon  adjutant  of  the  Thirty-third 
United  States  Vohinteer  Infantry  was  assi^^ned  to  duty  with  the 
superintendent  of  pohce  of  the  city  of  Manila  by  the  commanding 
general  of  the  Philippines  Division,  that  place  during  the  period  of 
such  employment  being  in  the  military  occupation  of  the  United 
States.  Held  that  there  can  be  no  douot  of  the  power  of  the  Pres- 
ident, or  the  Secretary  of  War  as  his  representative  in  the  conduct 
of  military  affairs,  to  assign  any  officer  of  the  Army  to  any  duty  fall- 
ing properly  within  the  scope  of  his  office.  A  colonel,  a  major,  or  a 
captain,  in  any  branch  of  the  line,  or  in  any  department  of  the  staff, 
may,  by  the  order  of  the  President,  or  of  a  competent  military  supe- 
rior, be  detached  from  the  duties  of  his  office  and  assigned  to  duty 
elsewhere  in  the  Military  Estabhshment ;  and,  while  so  detached,  it 
has  never  been  the  practice  of  the  department  to  require  any  deduction 
to  be  made  from  the  salary  to  whicn  he  is  entitled  by  law.  Pending 
the  detached  service  of  the  incumbent,  the  duties  attached  to  such 
office  are  performed  by  a  successor  in  command  or  by  an  officer  duly 
detailed  for  that  purpose.  An  order  assigning  an  ofncer  to  the  tem- 
porary performance  of  the  duties  of  another  military  office  would  be 
a  lawful  mihtary  order,  which  the  officer  to  whom  it  was  addressed 
would  disobey  at  his  peril;  and  during  such  temporary  incumbency 
the  detailed  officer,  even  though  exercising  the  functions  of  a  higher 

frade  in  the  Military  Establishment,  would  not  become  entitled  to 
igher  pay,  unless  expressly  thereto  authorized  by  law;  as,  for  exam- 
ple, in  the  case  provided  for  in  the  act  of  April  26,  1898.  Nor,  on 
the  other  hand,  would  the  detached  officer  undergo  any  reduction  of 

Eay,  or  be  deprived  of  any  of  the  emoluments  to  which  he  is  entitled 
y  law,  as  a  consec^uence  of  his  teroporary  detachment  from  his  office 
to  perform  the  duties  of  another  office  in  the  Mihtary  Establishment. 
What  has  been  said  in  regard  to  the  power  of  the  President  to 
assign  an  officer  to  duty  in  connection  with  the  ordinary  administra- 
tion of  the  Mihtary  Estabhshment,  applies  with  equal  force  to  his 
authority  to  assign  an  officer  to  duty  in  connection  with  the  admin- 
istration of  the  mffitary  government  of  the  Philippine  Islands,  which 
grew  out  of  the  fact  that,  at  the  time  such  assignment  was  made, 
those  islands  were  in  the  military  occupation  of  the  United  States. 
It  seems  hardly  necessary  to  trace  the  authority  for  the  assignment 
of  an  officer  to  any  duty  which  he  was  considered  capable  of  perform- 
ing in  connection  with  the  military  occupation  of  the  city  oi  Manila. 
The  right  to  employ  military  officers  upon  such  duty,  in  territory  in 
the  military  occupation  of  the  United  States,  has  never  been  doubted.^ 
C.  16906,  Sept.  26,  1904. 

IV  A  2  e  (6)  (6)  [2].  A  lieutenant  of  Infantry  held  the  position  of 
inspector  of  constabulary.  The  question  was  raised  as  to  whether 
or  not  his  occupation  of  that  position  vacated  his  office  under  the 
provisions  of  section  1222,  R.  S.  Held  that  in  view  of  the  fact  that 
the  Philippine  Constabulary  is  a  military  organization  and  is  under 
the  Department  of  War,  the  officer  in  question  did  not  occupy  a  civil 
office  within  the  meaning  of  section  1222,  R.  S.,  which  is  a  penal 

^  Cross?;.  Harrison,  16  How.  189-193;  Jecker  v.  Montgomery,  13  id.  515:  Texas i;. 
White,  7  Wall.,  700. 


814  OFFICE  IV  A  2  e  (e)  (h)  [3]. 

statute  and  must  be  strictly  construed,  but  was  merely  executing  a 
duty  to  which  he  had  been  properly  detailed.  Held  further  that  he 
was  subject  to  control  only  through  the  line  of  command  extending 
through  the  Chief  of  Constabulary  to  the  Secretary  of  War.^  C. 
22400,  Nov.  21,  1907;  24236,  Dec.  21,  1907;  23328,  May  27,  1908; 
25629,  Sept.  30,  1909. 

IV  A  2  e  (6),  (b)  [3].  A  captain  of  Infantry  was  assigned  to  duty 
by  the  Secretary  of  War  with  the  Governor  General  of  the  Philippine 
Islands.  Held  that  the  consitutional  authority  of  the  President  to 
command  the  Army  does  not  extend  to  detaching  officers  for  the 
performance  of  purely  civil  duties,  and  that  details  of  this  latter 
character  must  be  specially  authorized  by  Congress.  It  is  not 
believed,  however,  that  this  case  presents  any  question  of  detail  to 
civil  duties.  Under  the  scheme  of  government  provided  by  Con- 
gress for  the  Philippine  Islands  special  provision  is  made  for  the  use 
of  the  military  forces  of  the  United  States  in  preserving  order  and 
in  dealing  with  emergencies  beyond  the  power  of  the  civil  officials 
to  control.  Congress  has  thus  recognized  that  in  the  administra- 
tion of  public  affairs  in  the  Philippine  Islands  the  closest  cooperation 
of  the  military  authorities  and  the  civil  government  is  necessary; 
and  it  seems  to  have  been  the  opinion  of  the  Secretary  of  War  and 
the  civil  governor  of  the  Philippine  Islands  that  this  cooperation 
could  be  facilitated  by  the  detail  of  a  military  officer  upon  the  staff 
of  the  latter.  In  this  view  an  officer  who  has  been  so  detailed  is  to  be 
regarded  as  being  detailed  for  duty  with  the  civil  governor  for  the 

Serformance  of  important  military  duties.  His  status  under  such 
etail  is  that  of  an  officer  on  detached  service  performing  military 
duties  under  the  direction  of  the  civil  governor.  C.  20251,  Aug.  21  j 
1906. 

IV  A  2  6  (7).  The  detail  of  a  captain  of  Engineers  was  proposed  as 
an  ''associate  member"  of  the  International  Boundary  Commission 
(United  States  and  Mexico) .  Held  that  office  in  such  commission 
was  created  by  treaty  and  that  it  is  beyond  the  power  of  the  Execu- 
tive to  create  the  office  of  ''associate  member"  of  such  commission. 
Suggested  that  the  officer  be  assigned  to  advisory  duty  in  connection 
with  the  commission,  such  duty  being  military,  and  not  inconsistent 
with  the  office  held  by  the  captain  of  engineers  as  a  member  of  the 
Military  Establishment.^     C.  2236,  Apr.  26, 1896. 

1  The  act  of  the  Philippine  Commission  of  July  18,  1901,  providing  for  the  organiza- 
tion and  government  of  a  force  of  Philippine  Constabulary  and  for  a  corps  of  mspec- 
tors  for  the  same  was  approved,  ratified,  and  confirmed  by  the  act  of  July  1,  1902  (32 
Stat.  691).  The  act  of  July  1,  1902,  also  provided  for  the  further  temporary  govern- 
ment of  the  Philippine  Islands  under  the  Department  of  War.  It  also  provided  that 
all  laws  thereafter  passed  by  the  government  of  the  Philipj)ine  Islands  should  be 
reported  to  Congress,  which  reserved  the  power  and  authority  to  annul  the  same. 
Confess  later  in  the  act  of  Jan.  30,  1903  (32  Stat.  783),  specifically  recognized  the 
Philippine  Constabulary  as  an  existing  force,  duty  with  which  was  fit  and  appropriate 
for  an  Army  ofiicer,  and  created  and  bestowed  additional  rank  upon  such  officers  of 
the  Army  as  should  be  detailed  for  service  as  chief  and  assistant  chief  of  constabulary. 
The  governor  of  the  Philippine  Islands  thereafter  requested  the  detail  of  a  Regular 
officer  for  assignment  to  duty  as  chief  of  the  corps  of  inspectors.  The  detail  was  ap- 
proved by  the  Secretary  of  War  Feb.  25,  1904,  and  published  in  par.  4,  S.  O.  75,  War 
Department,  Mar.  30,  1904.  This  order  directed  the  officer  to  report  to  the  governor 
of  the  Philippine  Islands  for  duty  in  inspecting  the  constabulary  of  the  islands.  _  That 
procedure  has  since  been  followed  in  the  matter  of  detailing  officers  to  duty  with  the 
government  of  the  Philippine  Islands. 

2  See  opinion  of  the  Attorney  General  of  May  5,  1910  (28  Op.  Atty.  Gen.,  270). 


¥ 


OFFICE   IV  B  1.  815 

IV  B  1.  Held  that  an  officer  of  Engineers  detailed  by  the  President 
to  perform,  or  assist  in,  engineering  work,  for  State  or  municipal 
autnorities,  at  their  request,  could  not  be  said  to  exercise  a  civil 
office,  and  was  thus  not  affected  by  the  provision  of  section  1222, 
R.  S.,  the  only  question  to  be  determined  in  cases  of  such  employ- 
ment being  that  indicated  by  section  1224,  viz,  whether  such  work 
would  require  the  officer  to  be  separated  from  his  corps  or  otherwise 
interfere  with  the  performance  of  his  military  duties  proper.^ 
R.  37,  540  and  542,  May,  1876;  52,  271,  June,  1887. 

IV  B  2.  Held,  in  view  of  the  provisions  of  section  1224,  R.  S.,  that 
an  officer  of  the  Army  could  not  legally  be  detailed  in  the  service  of 
"The  World's  Exposition  of  1892,"  which  is  a  corporation,  nor  upon 
"civil  works"  under  the  "World's  Columbian  Commission,"  which  is 
not  a  corporation.  And  advised  that,  irrespective  of  the  statute,  to 
assign  an  officer  of  the  Army  to  a  duty  which  must,  entirely  or  in  great 
measure,  and  for  any  considerable  period,  separate  him  from  the  mili- 
tary duty  for  which  Congress  has  authorized  his  employment  and  his 
ay,  would,  in  the  absence  of  statutory  sanction,  oe  unauthorized. 

.49,  211, Sept, 1891.  Also  further  T^eW,  in  view  of  section  1224,R.S., 
that  an  officer  of  the  Army  could  not  legally  be  detailed  to  inspect 
the  buildings  in  the  course  of  construction  for  the  World's  Columbian 
Exposition,  since  such  inspection  would  be  an  employment  "on  civil 
works,"  and  would  require  his  separation  from  his  corps  and  interfere 
with  the  performance  of  his  military  duties.^    P.  49,  245,  Sept.,  1891. 

IV  C.  An  office  was  vacated  by  the  appointment  of  a  successor; 
held,  that  it  was  vacated  on  the  date  when  the  successor  took  rank. 
Held,  further,  that  if  no  date  of  rank  was  stated  in  the  nomination 
that  the  successor  took  rank  from  date  when  the  appointing  power 
in  his  case  was  completely  exhausted,  i.  e.,  on  the  date  when  the 
President  signed  his  commission.^  R.  55,  546,  Apr.,  1888;  P.  24, 
7,  Apr.,  1888;  C.  17480,  Feb.  2  and  Mar.  13,  1905. 

IV  D  1.  A  mere  offer  to  resign  or  tender  of  resignation  is  revocable 
at  any  time  before  acceptance.  C.  25005,  Jan.  4,  1910.  But  after 
an  acceptance,  and  before  effect  has  been  given  to  the  same  by 
notice,  tne  offer  can  not  be  withdrawn  or  materially  modified  by  the 
act  of  the  officer  alone,  but  the  consent  of  the  appointing  power  is 
also  necessary.     R.  39,  375,  Jan.  5,  1878.     C.  12732,  June  5,  1902; 

^  It  is  held  by  the  Attorney  General  (16  Op.,  499)  that  while  to  detail  an  officer 
of  the  active  list  for  duty  with  Prof.  King  on  the  U.  S.  Geological  Survey  would  not 
be  to  invest  him  with  a  civil  office,  yet  that,  as  such  survey  is  a  civil  work,  an  officer 
could  not,  in  view  of  the  provisions  of  section  1224,  R.  S.,  legally  be  detailed  for 
duty  thereon  if  the  effect  of  such  detail  would  be  to  separate  him  from  his  regiment, 
corps,  etc.,  or  otherwise  interfere  with  the  performance  of  his  military  duties  proper. 
See  also  8  Op.  Atty.  Gen.,  325. 

See  28  Op.  Atty.  Gen.,  270,  where  it  is  held  that  the  President  has  power  to  detail 
officers  of  the  Engineer  Corps  of  the  Army  to  act  as  experts  at  a  hearing  involving  the 
granting  of  a  permit  to  the  city  and  county  of  San  Francisco  to  use  the  Hetch-Hetchy 
Valley,  in  the  Yosemite  National  Park,  for  maintaining  a  water  supply  for  municipal 
purposes. 

^  Compare  case  in  19  Op.  Atty.  Gen.  600.  Congress,  subsequently,  by  act  of  Aug. 
5,  1892,  expressly  authorized  the  Secretary  of  War  to  detail  at  his  discretion  officers 
of  the  Army  "for  special  duty  in  connection  with  the  World's  Columbian  Exposition. " 

3  U.  S.  V.  Kirkpatrick,  22  U.  S.,  733,  1824;  Blake  v.  U.  S.,  103  U.  S.,  227,  Oct., 
1880;  Keys  v.  U.  S.,  109  U.  S.,  336,  Nov.  26,  1883;  also  16  Op.  Atty.  Gen.,  298,  and 
20  id.,  427. 

As  to  2  persons  holding  the  same  office  pending  notice  of  appointment  of  successor, 
see  7  Op.  Atty.  Gen.,  303;  I  Comp.  Dec,  576;  3  id.,  249. 


816  OFFICE   IV  D  2. 

15493,  Nov.  13, 1903;  15767,  Jan.  12, 1904;  161S3,  May  7, 1904;  18318, 
July  18,  1905;  18851,  Nov.  20,  1905;  2170,  Apr.,  1896;  23448,  June 
18,  1908. 

IV  D  2.  While  a  tender  of  his  resignation  by  an  insane  officer  is 
in  general  without  legal  effect  and  incapable  of  being  legally  ac- 
cepted/ yet  where  a  resignation  tendered  by  an  insane  oflicer  was, 
in  the  absence,  at  the  War  Department,  of  any  knowledge  of  his 
insanity,  formally  accepted,  and  the  vacancy  created  by  the  resigna- 
tion was  thereupon  fdled,  held  that  the  acceptance  could  not  legally 
be  revoked,  and  that  the  appointment  to  the  vacancy  was  valid 
and  operative.2     R.  39,  420,  Feb.,  1878. 

IV  D  3.  Held  that  a  resignation  without  date  placed  in  the  hands 
of  superior  authority  as  an  inclosure  to  a  pledge  given  by  an  officer 
who  authorized  superior  authority  to  complete  the  resignation  by 
supplying  the  date  is  a  valid  tender  of  resignation  on  condition  sub- 
sequent. Held,  further,  that  upon  the  occurrence  of  the  condition 
the  resignation  mav  be  accepted.^  C.  18851,  Nov.  21,  1905;  25005, 
Jan.  4,  1910. 

IV  D  4.  An  officer  deserted  and  went  to  Canada.     From  that 

f)lace  he  tendered  his  resignation  before  he  had  been  absent  without 
eave  three  months.  Held  that  as  he  was  in  desertion  it  would  not 
be  proper  to  accept  his  resignation.  Held,  further,  that  in  view  of 
the  fact  that  he  was  outside  of  the  limits  of  the  United  States,  the 
statute  of  limitations  did  not  run  in  his  case,  and  that  at  the  first 
opportunity  he  should  be  apprehended  and  tried  as  a  deserter. 
C.  24233,  Dec.  22,  1908. 

IV  D  5  a.  The  right  of  an  incumbent  of  military  office  to  resign  liis 
office  at  pleasure  is  subject  to  certain  restrictions  growing  out  of  the 
military  status.  Thus  the  resignation  of  an  officer  under  charges 
need  not  be  accepted.  Similarly  the  resignation  of  an  officer  in 
time  of  war  may  properly  be  refused.  R.  I4,  129,  Feh.  8,  1865;  C, 
16183,  May  7,  1904. 

IV  I)  5  b.  The  acceptance  of  a  resignation  is  an  executive  act 
which  may  be  exercised  by  the  President  through  any  proper  officer 
selected  by  him,  as  by  a  military  commander  in  the  field  m  time  of 
war.     P.  54,  205,  June  25,  1892. 

IV  D  5  c.  An  officer  may  vacate  an  office  by  resignation.  Held 
that  the  date  of  vacation  is  the  date  of  the  notification  to  the  officer 
of  the  acceptance  of  his  resignation.*  R.  42,  68,  Bee,  1878;  C.  15493, 
Nov.  13,  1903. 

IV  D  5  c  (1).  A  notice  to  an  officer  that  his  resignation  has  been 
accepted  may  be  either  actual  or  constructive.  Unless  there  is 
something  to  indicate  the  contrary,  it  is  presumed  that  when  the 
acceptance  of  the  resignation  has  been  forwarded  in  the  regular  way 
to  an  officer's  regiment  or  station  it  reached  its  destination  and  was 
delivered  to  the  officer  affected  thereby  if  he  was  present.  Held 
that  if  he  is  absent  without  authority  the  receipt  at  his  proper  station 
of  the  notice  of  the  acceptance  of  his  resignation  is  a  constructive 

1  6  Op.  Atty.  Gen.,  456;  10  id.,  229;  12  id.,  557. 

2  See,  to  a  similar  effect,  15  Op.  Atty.  Gen.,  469. 

3  12  Op.  Atty.  Gen.,  555.  See  Mimmack  v.  U.  S.,  10  Ct.  Cls.,  584,  and  id.,  97  IT.  S., 
426. 

*  See  forty-ninth  article  of  war.  See  also  Barger  v.  U.  S.,  6  Ct.  Cls.,  35;  Mimmack 
V.  U.  S.,  10  id.,  584;  also  97  U.  S.,  426. 


OFFICE  IV  D  5  C  (2).  817 

delivery  to  him.  P.  86,  337,  Nov.,  1889;  42,  370,  Aug.,  1890;  50, 
458,  Dec,  1891;  C.  1289,  Apr.,  1895;  6409,  May,  1899;  12732,  June 
6,  1902;  15493,  Nov.  13,  1903;  16183,  May  7,  1904;  17696,  Mar.  18, 
1905;  18318,  July  18,  1905;  18851,  Nov.  20,  1905;  19391,  Mar.  19, 
1906;  22934,  Mar.  23,  1908. 

IV  D  5  c  (2).  An  officer  tendered  his  resignation  and  the  President 
without  formally  accepting  the  resignation  by  letter  appointed  a 
successor.  Held  that  the  appointment  of  the  successor  was  in  effect 
the  acceptance  of  the  resignation  and  that  the  officer  who  tendered 
the  resignation  vacated  his  office  when  he  received  actual  or  con- 
structive notice  of  such  appointment.  C.  7251,  Nov.  I4,  1899,  and 
Dec.  17,1901. 

VI  D  5  d.  Held  that  after  an  officer  has  been  notified  of  the  accept- 
ance of  his  resignation,  a  revocation  of  the  acceptance  will  not  operate 
to  return  him  to  office.  Held,  further,  that  he  can  be  returned  to 
office  only  in  the  operation  of  a  new  appointment.^  C.  1289,  Apr.  24, 
1895;  2321,  May  26,  1896;  16183,  May  7,  1904;  24583,  Feb.  27,  1909. 

IV  D  5  d  (1).  In  the  case  of  an  officer  whose  resignation  was 
accepted,  to  take  effect  at  a  future  date,  and  who,  after  receiving 
notice  of  the  acceptance  but  before  the  date  fixed,  attempted  to 
withdraw  the  resignation,  held,  that  the  withdrawal  should  not  be 
considered  in  connection  with  the  resignation,  as  the  serving  of 
notice  on  the  officer  of  the  acceptance  of  his  resignation  had  &ed 
his  status  beyond  recall  as  that  of  vacating  the  office  on  the  date 
specified.2     C.  26210,  Feb.  12,  1910. 

IV  D  5  d  (2).  The  power  of  the  President  in  the  matter  of  accepting 
the  resignations  of  officers  in  the  military  service  is  analogous  to  that 
exercised  by  the  reviewing  authority  of  a  court-martial.  Held  that 
he  may  accompany  his  action  by  such  remarks  as  he  may  deem 
necessary  or  appropriate  to  the  discipline  of  the  military  service. 
Held,  further,  that  after  assigning  reasons  for  his  actions  in  accept- 
ing the  resignation  such  reasons  so  assigned  become  an  essential 
part  of  the  acceptance.     C.  16183,  May  7,  1904. 

IV  D  6.  Held  that  an  unqualified  acceptance  of  a  resignation  is  an 
honorable  discharge  from  the  service.  C.  2170,  Apr.  20,  1896;  3569, 
Oct.  4,  1897;  16183,  May  7, 1904.  Held,  also,  that  where  the  accept- 
ance was  ''for  the  good  of  the  service"  the  discharge  was  ''without 
honor."  C.  427,  Oct.,  1894;  2170,  Apr.  20,  1896;  14536,  Apr.  30, 
1903;  18107,  June  5,  1905. 

IV  E  1  a.  A  legal  sentence  of  dismissal  of  an  officer  when  finally 
confirmed  by  the  competent  authorities  (according  to  the  one- 
hundred  and  sixth  or  one  hundred  and  ninth  article  of  war)  takes 
effect  upon  the  officer  on  the  day  on  which  the  confirmation  is  officially 
comnmnicated  to  him,  either  by  the  promulgation  of  the  order  of 
confirmation  at  his  station  or  other  form  of  official  notice.  Thus  the 
date  of  the  actual  confirmation  is  not  necessarily — is  not  probably 
in  the  majority  of  cases — the  date  on  which  the  dismissal  goes  into 
effect.  The  declaration  is  indeed  sometimes  added  In  the  order  of 
confirmation,  that  the  party  ceases  thereupon  to  be  an  officer  of  the 

1  See  Barger  v.  U.  S.,  6  Ct.  Cls.,  35;  Mimmack  v.  U.  S.,  10  Ct.  Cls.,  584  and  97  U.  S., 
426;  2  Op.  Atty.  Gen.,  406;  12  id.,  555;  14  id.,  262. 

2  Barger  v.  U.  S.,  6  Ct.  Cls.,  645;  Mimmack  v.  U.  S.,  10  Ct.  Cls.,  584;  id.  97,  U.  S., 
426;  12  Op.  Atty.  Gen.,  1255;  14  id.,  202. 

31106°— 12 52 


818  OFFICE  IV  E  1  a  (l). 

Army;  but  this  declaration  is  immaterial  and  surplusage.  It  not 
unfrequently  happens — especially  in  time  of  war,  and  particularly 
when  the  officer  nas,  since  his  trial,  been  taken  prisoner  by  the 
enemy — that  a  considerable  period  may  elapse  before  the  officer  is 
officially  informed  of  the  confirmation  of  the  sentence  and  thus 
becomes,  in  law  and  fact,  dismissed  from  the  service.  R.  86,  110, 
Dec,  1874;  38,  341,  Oct,  1876;  P.  49,  176,  Sept,  1891;  G.  1682S,  Sept. 
13,  1904. 

IV  E  1  a  (1).  A  sentence  of  dismissal  can  not  legally  be  confirmed 
so  as  to  take  effect  as  of  a  date  prior  to  that  of  the  formal  confirma- 
tion.    R.  30,  480,  July,  1870;  P.  42,  370,  Aug.,  1890. 

IV  E  1  a  (2).  Where  an  officer  who  had  been  tried  by  a  court- 
martial  was,  while  awaiting  the  promulgation  of  the  proceedings, 
taken  prisoner  by  the  enemy,  and  after  his  capture  an  order  was 
published  in  his  regiment,  by  which  a  sentence  pronounced  by  the 
court,  dismissing  mm  from  the  service,  was  duly  confirmed — lield 
that  as  he  was  beyond  the  control  of  the  national  authorities  at  the 
time  of  such  publication,  he  could  not  be  regarded  as  notified  of 
such  order  or  affected  by  it;  and  that  he  therefore  continued  to  be 
an  officer  in  the  Army  and  entitled  to  pay  as  such  up  to  the  date — 
about  six  months  subsequent  to  his  capture — when,  upon  being 
exchanged,  he  returned  to  his  regiment  in  the  field  and  was  first 
notified  of  his  dismissal  as  approved.     R.  12,  230,  Jan.,  1865. 

IV  E  1  b.  Even  before  the  passage  of  the  act  of  July  20,  1868 
(15  Stat.  125),  which  .was  incorporated  in  section  1228,  R.  S.,  it  was 
lield  that  the  legal  execution  of  a  legal  sentence  of  dismissal  sepa- 
rated an  officer  from  the  military  service,  and  after  the  notice  of 
such  dismissal  was  served  upon  him  his  status  was  that  of  civilian 
as  completely  as  if  he  had  never  been  in  the  service.  Held  further 
that  after  such  notice  is  served  he  can  not  be  honorably  discharged 
or  placed  on  the  retired  list,  or  permitted  to  resign,  and  that  the 
order  of  dismissal  is  not  revocable.  The  only  channel  of  reentering 
the  service  is  by  way  of  reappointment.^  R.  29,  108,  July  12,  1869; 
30,  317,  323,  May  7  and  9,  1870;  31,  503,  July  8,  1871;  37,  420, 
492,  Mar.  22,  and  Apr.  26,  1876;  39,  248,  Oct.  23,  1877;  41,  673, 
Sept  1,  1879.  P.  47,  337,  May  28,  1891;  C.  13400,  Oct  7,  1902; 
13654,  Nov.  13,  1902;  15973,  Mar.  1,  1904;  16867,  Sept  9,  1904; 
18318,  July  19,  1905;  23071,  Apr.  11,  1908. 

IV  E  1  b  (1).  When  a  sentence  of  dismissal  is  not  legal,  held  that 
there  has  been  no  dismissal  in  law.  Held  further  that  this  fact  may 
at  any  time  be  declared  in  orders.  Thus  if  a  court  was  illegally 
constituted  or  composed,  or  was  without  jurisdiction,  or  its  proceed- 
ings were  invalidated  as  by  some  such  fatal  defect  as  that  less  than 
five  members  took  part  in  the  judgment,  or  in  case  one  or  more  of 
the  members  were  not  sworn  the  sentence  will  be  illegal.  Similarly, 
an  officer  can  not  be  dismissed  pursuant  to  a  legal  sentence  until  it  shall 
have  been  approved  or  confirmed  by  competent  authority.  R.  20, 
302,  Jan.  8,  1866;  26,  462,  Feb.  19,  1868;  28,  457,  Mar.  27,  1869;  29, 
575,  Jan.  8, 1870;  30,  318,  323,  420,  May  7,  1870,  and  June  20,  1870; 
34,  634,  Nov.  29, 1873;  36,  274,  330,  Feb.  23, 1875,  and  Mar.  22, 1875; 
38,  243,  Aug.  14,  1876;  39,  238,  242,  248,  Oct  22  and  23,  1877;  55, 
221,  Dec.  19,  1887;  C.  7509,  Jan.  6,  1900;  16710,  Aug.  9,  1904. 

1  See  4  Op.  Atty.  Gen.,  318;  14  id.,  448,  502;  also  Report  868  of  Judiciary  Committee 
of  Senate,  of  Mar.  3,  1879,  45th  Cong.,  3d  sess. 


OFFICE  IV  E  1  b  (i)  (a).  819 

IV  E  1  b  (1)  (a).  An  officer  of  Volunteers  was  sentenced  to  dis- 
missal. The  sentence  was  approved  and  another  officer  was  mustered 
in,  vice  the  dismissed  officer.  Later  it  was  discovered  that  the  sen- 
tence of  the  general  court-martial  was  illegal  and  the  dismissed  officer 
was  returned  to  duty.  Held  that  the  officer  who  was  mustered  in, 
vice  the  dismissed  officer,  was  a  de  facto  officer  and  his  acts  as  far  as 
they  affected  third  parties  were  legal. ^  C.  56 ^  Aug.  15,  and  691  j 
Dec.  4,  1894. 

IV  E  1  c.  Held  that  dismissal  by  sentence  of  a  general  court- 
martial  does  not  render  an  officer  ineligible  for  appointment  to  office 
in  the  militarv  estabhshment  (R.  36,  830,  Mar.,  1875);  or  for  enlist- 
ment as  a  soldier  {R,  7,  263,  Feb.,  1864);  or  for  holding  civil  office 
under  the  United  States.  R,  8,  601,  June,  1864;  22,  617,  Dec,  1866; 
and  31,  486,  June,  1871.     P.  38,  96,  Jan.,  1890;^  40,  14,  Mar.,  1890. 

IV  E  2  a.  Dismissal  by  Executive  order  is  quite  distinct  from  dis- 
missal by  sentence.  'The  latter  is  a  'punishment;  the  former  is 
removal  from  office.^  The  power  to  dismiss,  which,  as  being  an  inci- 
dent to  the  power  to  appomt  public  officers,  had  been  regarded  since 
1789  as  vested  in  the  President  by  the  Constitution,^  was,  for  the  first 
time  in  1866  (by  the  act  of  July  13  of  that  year,  reenacted  in  the 
second  clause  or  the  present  ninety-ninth  article  of  war  and  in  section 
1229,  R.  S.),  expressly  divested  by  Congress  in  so  far  as  respects  its 
exercise  in  time  of  peace.*  By  the  statute  law  it  is  now  authorized 
only  in  time  of  war.  C.  13323,  Sept.  18,  1902;  13654,  Nov.  13,  1902. 
Durmg  the  War  of  the  Rebellion  it  was  exercised  in  a  great  number  of 
cases,  sometimes  for  the  purpose  of  summarily  ridding  the  service  of 
unworthy  officers,  sometimes  in  the  form  of  a  discharge  or  muster-out 
of  officers  whose  services  were  simply  no  longer  required.  The  dis- 
tinction between  this  species  of  dismissal  and  dismissal  by  sentence  is 
illustrated  by  the  fact  that  the  former  has,  with  the  sanction  of  legal 
authority,  been  repeatedly  ordered  in  cases  where  a  court-martial  has 
previously  acquitted  the  officer  of  the  very  offenses  on  account  of 
which  the  summary  action  has  been  resorted  to.®  R.  23,  265,  Oct., 
1866;  26,  5,  Sept.,  1867;  31,  557,  Aug.,  1871;  42,  470,  July,  1880; 
48,  243,  Jan.,  1884.     C.  4953,  Sept.  24,  1898;  10513,  May  16, 1901. 

IV  E  2  a  (1).  A  board  appointed  under  the  provisions  of  section  14 
of  the  act  of  April  22,  1898  (30  Stat.  363),  ''to  provide  for  temporarily 
increasing  the  military  establishment,"  is  not  rec[uired  either  by 
statute  or  regulation  to  be  sworn  or  to  record  the  evidence  taken.  It 
was  evidently  intended  as  a  summary  j)roceeding  adapted  to  time  of 
war,  and  may  be  regarded  as  merely  in  aid  of  the  President's  authority 
in  time  of  war  to  dismiss  an  officer  without  trial.  It  is  doubtful 
whether  in  the  present  state  of  the  law  it  would  be  proper  to  swear  the 
members.  The  boards  appointed  under  section  1  of  the  act  of  July 
15,  1870  (16  Stat.  318),  were  sworn,  but  those  appointed  under  the  act 

^  An  officer  can  not  maintain  an  action  for  his  salary  unless  he  has  a  legal  title  to 
the  office.  Mere  occupancy  is  not  sufficient.  See  Runkle  v.  U.  S.  19  Ct.  Cls.,  396 
(reversed  on  other  grounds). 

2See7  0p.  Atty.  Gen.,251. 

^  See,  as  amon»  the  principal  authorities  on  this  subject,  Commonwealth  1;.  Bus- 
sier,  5  Sergt.  &  Rawle,  461;  Ex  parte  Hennen,  13  Peters,  258,  259;  United  States  v. 
Guthrie,  17  Howard,  307;  4  Op.  Atty.  Gen.,  1,  609-613;  6  id.,  5-6;  7  id.,  251;  8  id.,  230- 
232;  12  id.,  424-426;  Sergeant,  Const.  Law,  373;  2  Story's  Cons.  §  1537,  note;  1  Kent's 
Corns.,  310;  2  Marshall's  Washington,  162;  and  114  U.  S.,  619. 

^See  16  Op.  Atty.  Gen.,  315. 

«See  12  Op.  Atty.  Gen.,  427. 


820  OFFICE   IV  E   2  b. 

of  July  22, 1861  (12  Stat.  270),  were  not.  Those  sections  were  similar 
to  the  one  under  consideration.  Where  the  proceedings  of  a  board 
appointed  under  this  later  statute  did  not  show  that  the  members 
were  sworn,  and  did  not  contain  a  report  of  the  evidence  taken,  Jieldy 
the  President  having  approved  the  report  and  in  accordance  therewith 
discharged  the  officer,  that  the  discharge  was  legal.  C.  4-^4^,  Aug., 
1898. 

IV  E  2  b.  A  summary  dismissal  of  an  officer  does  not  properly  take 
effect  until  the  order  of  dismissal  or  an  official  copy  of  the  same  is 
delivered  to  him,  or  he  is  otherwise  officially  notffied  of  the/ac^  of  the 
dismissal.!  P.  49,  91,  and  176,  Sept.,  1891;  C.  4842,  Feb.  2,  1900; 
16823,  Sept.  13, 1904, 

IV  E  2  b  (1).  Held  that  the  President,  when  dismissing  an  officer 
by  order,  may  fix  a  date  in  futuro  when  the  discharge  shall  become 
operative.  When  such  date  has  been  fixed  in  futuro  he  can  not  be 
discharged  or  mustered  out  as  of  a  previous  date  by  order  of  the  War 
Department.^  Held,  further.  That  all  the  acts  of  such  officer,  whether 
of  command  or  in  connection  with  staff  duty,  if  he  be  a  staff  officer, 
are  legal  until  he  receives  notice  of  his  order  of  discharge.  C.  16823, 
Sept.  13,  1904. 

IV  E  2  c  (1).  A  summary  dismissal  ''by  order  of  the  Secretary  of 
War"  is  in  law  the  act  of  the  President.^  R.  6,  319,  Nov.,  1863;  P. 
36,  322,  Nov.,  1889;  C.  15973,  Mar.  1,  1904. 

IV  E  2  c  (2).  A  department  or  Army  commander  can  have  of  course 
no  authority  to  summarily  dismiss  or  discharge  an  officer  from  the 
military  service.  R.  11,  4O6,  Feb.,  1865;  16,  553,  Sept.,  1865;  4I,  84, 
Jan.,  1878;  42,  263,  Apr.,  1879.  P.  47,  191,  May  13,^  1891.  But 
where  in  a  case  of  a  E-egular  officer  this  authority  was  in  fact  exer- 
cised during  the  Civil  War  and  the  President,  treating  his  office  as 
vacant,  proceeded  to  fiU  the  vacancy  by  a  new  appointment,  lield 
that  he  had  made  the  dismissal  his  own  act  by  appointment  of  a  suc- 
cessor. R.  41,^  84,  Jan.,  1878.  So  where  (in  1863)  an  officer  of  vol- 
unteers was  dismissed  by  the  order  of  an  Army  commander,  which 
was  never  ratified  in  terms  by  the  President,  but  a  successor,  ap- 
pointed to  the  vacancy  by  the  governor  of  the  State,  was  accepted 
and  mustered  in  by  the  United  States;  held  that  the  office  vested  in 
the  new  incumbent  at  muster  in.  R.  44,  82,  July,  1880;  G.  3728, 
Dec,  1897. 

IV  E  2  d.  There  can  be  no  revocation  of  a  legally  executed  order  of 
dismissal,  however  unmerited  or  injudicious  the  original  act  may  be 
deemed  to  have  been.  For  distinct  as  dismissal  by  order  is,  in  its 
nature,  from  dismissal  by  sentence,  the  effect  of  the  proceeding  in 
divesting  the  office  is  the  same  in  each  case.  An  officer  dismissed 
by  an  order,  though  his  dismissal  may  have  involved  no  disgrace,  is 
assimilated  to  an  officer  dismissed  by  sentence  in  so  far  that  he  is 
completely  relegated  to  a  civil  status,  having  in  law  no  nearer  or  other 
relation  to  the  military  service  than  has  any  civilian  who  has  never 
been  m  the  Army.  C.  691,  Dec,  1894;  S735,  Mar.,  1898;  4586,  July, 
1898;  4954,  Mar.  26,  1908;  13323,  Sept.  18,  1902;  14882,  June  27, 
1903;  15767,  Jan.  12,  1904.  Thus  an  order  assuniing  to  revoke  a 
legal  order  of  dismissal  is  as  unauthorized  as  it  is  ineffectual.     The 

1  Gould  V.  U.  S.,  19  Ct.  Cls.,  593,  595;  IV  Comp.  Dec,  601;  V  id.,  419. 

2  Allsteadt  v.  U.  S.,  3  Ct.  Cls.,  284. 

3  See  12  Op.  Atty.  Gen.,  421;  McElrath  v.  United  States,  12  Ct.  CI.  R.,  202. 


OFFICE  IV  E  2  d  (l).  821 

original  dismissal  is  an  act  done  which  can  not  be  undone,  and  the 
order,  which  is  the  evidence  of  it,  is  therefore  incapable  of  revocation 
or  recall.*  C.  4586,  July  13,  1898.  Nor  can  that  be  eilected  mdi- 
rectly  which  can  not  legally  be  done  directly.  An  officer  dismissed 
by  Executive  order  can  not  be  relieved  by  being  allowed  to  resign  or 
be  retired,  or  by  bemg  granted  an  honorable  discliarge.  For,  in  order 
to  be  discharged,  etc.,  from  the  Army,  he  must  first  be  in  the  Army, 
and  there  is  but  one  mode  by  which  an  officer  once  legally  separated 
from  the  Army  can  be  put  mto  it,  viz,  by  a  new  appointment  accord- 
ing to  the  Constitution.^  R.  31,  60^,  July,  1871;  35,  392,  466,  May 
and  July,  1874;  36,  216,  330,  Jan.  and  liar.,  1875;  37,  451,  Apr., 
1876;  38,  61,  159,  Jan.  and  July,  1876;  39,  248,  Oct.,  1877,  and  474, 
Mar.,  1878;  41,  153,  Mar.,  1878,  and  611,  July,  1879;  42,  73,  Dec, 
1878;  P.  35,  251,  Sept.,  1889;  36,  323,  Nov.,  1889;  52,  384,  Mar., 
1892;  59,  80,  Am.,  1893;  65,  51,  May,  1894;  O.  4953,  Sept.,  1898; 
15973,  Mar.  1,  Apr.  13,  and  May  7, 1904;  18318,  July  18,  1905. 

rV  E  2  d  (1).  Wliile  an  order  assuming  to  revoke  an  executed  legal 
order  or  sentence  of  dismissal  is  void  and  inoperative,  yet  where  such 
dismissed  officer  enters  upon  the  duties  of  the  office  under  the  void  order, 
held  that  he  was  during  the  period  he  thus  performed  such  duties  a 
de  facto  officer,  so  far  as  the  rights  of  third  persons  were  concerned. 
C,  691,  Dec,  1894;  3735,  Mar.,  1898;  15973,  Mar.  1,  1904.  HeU, 
further,  that  where  such  revoking  order  was  forged  by  the  interested 
officer  he  was  indebted  to  the  United  States  for  the  pay  drawn  by 
him  as  a  de  facto  officer.     C.  9121,  Oct.  13,  1900. 

IV  E  2  e.  Held  that  the  summary  discharge  of  an  officer  is  a  dis- 
charge without  honor  in  the  same  manner  that  the  summary  dis- 
charge of  an  enlisted  man  is  a  discharge  without  honor.  P.  52,  403, 
Mar.  21,  1892;  60,  250,  June  30,  1893;  C.  1789,  Oct.  18,  1895. 

IV  E  2  f .  A  dismissal  of  an  officer  by  executive  order  does  riot 
operate  to  disqualify  him  for  reappointment  to  military  office,  or  for 
appointment  to  civil  office  under  the  United  States.  R.  36, 330,  Mar., 
1875. 

IV  E  2  g  (1)  (a).  Held,  that  the  President  has  authority  to  dis- 
miss cadets  from  the  United  States  Military  Academy  without  trial 
by  court-martial  for  cause.^     O.  10513,  May  20,  1901. 

IV  E  2  g  (1)  (&).  Held,  in  the  case  of  certain  cadets  at  the  United 
States  Mffitary  Academy  who  had  been  dismissed,  that  after  notice 
of  such  dismissal  had  been  served  upon  them  the  President  was  with- 
out power  to  restrict  or  revoke  the  order  dismissing  them,  or  to 
pardon  them  so  as  to  restore  them  to  their  former  status  at  the  Mili- 
tary Academy.     C.  25471,  Aug.  24,  1909. 

IV  E  2  g  (1)  (c).  The  summary  dismissal  of  a  cadet  is  a  discharge 
without  honor.     C.  2533,  Aug.  17, 1896. 

IV  F.  An  officer  was  promoted  from  the  grade  of  first  lieutenant  to 
that  of  captain,  subject  to  examination.     When  examined  he  failed 

»  See  4  Op.  Atty.  Gen.,  124;  12  id.,  424-428;  14  id.,  520;  15  id.,  658.  A  contrary  view 
expressed  by  the-  Court  of  Claims,  in  its  earlier  period,  in  a  series  of  cases — see  Smith 
v.  United  States,  2  Ct.  Cls.,  206;  Winters  -y.  United  States,  3  id.,  136;  Barnes  v.  United 
States,  4  id.,  216;  Montgomery  v.  United  States,  5  id.,  93 — was  finally  practically  aban- 
doned in  McEhath  -y.  United  States,  12  id.,  201.  See  also  U.  S.  v.  Carson,  114  U.  S., 
619. 

2  See  8  Op.  Atty.  Gen.,  235;  12  id.,  421;  13  id.,  5;  McElrath  v.  United  States,  12  Ct. 
Cls.,  201. 

'Hartigan  v.  United  States,  38  Ct.  Cls.,  346;  id.  196,  U.  S.,  169. 


822  OFFICE   IV  G. 

for  reasons  other  than  physical  in  Une  of  duty.  Held,  that  upon  the 
date  when  the  Secretary  of  War  approved  the  adverse  findings  of  the 
examining  board  tlie  officer  reverted  from  the  grade  of  captain  to  that 
of  first  lieutenant  and  entered  upon  the  year's  suspension  as  first 
lieutenant  required  by  the  act  of  October  1,  1890.  G.  23096,  May  25, 
1910. 

IV  G.  Held,  that  the  detail  of  a  battalion  adjutant  to  duty  with  the 
chief  of  police  in  a  city  under  military  control  does  not  relieve  him  as 
battahon  adjutant.     0.  16906,  Sept.  27,  190^. 

Similarly  held  that  the  detail  of  a  battalion  quartermaster  and 
commissary  at  the  school  of  musketry  does  not  relieve  him  as  bat- 
talion quartermaster  and  commissary.     0.  28998,  Sept.  26,  1911. 

V  A  1.  Held  that,  in  the  absence  of  statutory  regulation,  the 
Executive  has  power  to  prescribe  rules  governing  the  appointment 
and  promotion  of  officers  of  the  volunteer  forces.  C.  12599,  May  9, 
1902. 

V  A  2.  In  case  of  an  officer  of  volunteers  who  was  mustered  out  of 
service  before  his  appointment  to  a  higher  grade  reached  him;  held, 
that  as  his  acceptance  was  essential  to  the  completion  of  the  appoint- 
ment tendered  him,  his  appointment  was  not  completed.  C.  12599, 
May  9,  1902. 

V  A  3  a.  Held  that  the  restoration  to  command  of  dismissed  volun- 
teer officers  while  the  Volunteer  Army  and  the  organization  to  which 
they  belonged  were  still  in  existence  should  be  regarded  as  a  new 
appointment.     C.  23071,  Apr.  11,  1908. 

V  A  3  b.  In  a  case  of  a  volunteer  officer  unjustly  dismissed  by  sen- 
tence or  order  during  the  Civil  War,  and  applying  for  restoration, 
there  is  the  obstacle  (not  encountered  in  a  case  of  a  regular  officer) 
that  the  volunteer  contingent  of  the  Army  has  been  long  since  dis- 
banded, so  that  a  restoration  to  ofiice  in  the  same  is  impracticable. 
And  as  a  dismissed  officer  can  not,  of  course,  be  granted  an  honor- _ 
able  discharge  from  the  Army  without  first  being  readmitted  to  the 
Army  by  a  new  appointment,  and  a  volunteer  officer  can  not  as  such 
be  so  readmitted,  advised,  in  a  case  of  a  volunteer  officer  applying 
for  relief  on  account  of  an  unjust  dismissal,  that  the  form  of  relief 
most  apposite  to  his  case  would  be  a  special  enactment  giving  him 
pay  from  the  date  of  his  dismissal — reciting  that  the  same  was  based 
upon  insufficient  grounds — to  the  date  of  the  final  muster-out  of  his 
regiment,  precisely  as  if  he  had  continued  regularly  in  the  service 
during  the  interval.     R.  J^3,  235,  Feb.,  1880.^ 

V  A  4  a.  Upon  a  question  of  the  constitutionality  of  the  appoint- 
ment of  officers  of  State  volunteers  by  the  executives  of  the  States, 
held  that  in  the  absence  of  a  decision  of  the  Supreme  Court  to  the 
effect  that  such  appointments  in  the  past  have  been  unconstitutional, 
and  considering  that  we  have  for  many  years  proceeded  upon  the 
theory  that  legislation  which  authorized  such  appointments  was 
valid,  we  should  not  now  question  the  legality  of  such  past  appoint- 
ments.i     0.  9773,  Feb.  26,  1901. 

^  Approved  by  the  Secretary  of  War  and  published  to  the  service  in  circular  form 
Mar.  18,  1901. 

During  the  Civil  War  all  officers  who  were  not  appointed  by  the  President,  by  and 
with  the  consentof  the  Senate,  were  mustered  into  the  service.    (See  R.  and  P.,  456829.) 

The  President,  in  his  proclamation  of  May  3,  1861,  which  embodied  the  first  call 
for  volunteers  during  the  late  war,  announced  that  the  men  called  for  would  be  mus- 


OFFICE  V  A  4  b.  823 

V  A  4  b.  Heldy  that  in  appointing  an  officer  of  volunteers  under  the 
act  of  April  22,  1898  (30  Stat.  363),  the  governor  of  a  State  acts  by 
authority  and  on  behalf  of  the  United  States  and  not  for  or  by  the 
authority  of  his  State.     C.  5161,  Oct.  26,  1898. 

V  A  4  c.  The  officers  of  the  State  volunteer  forces  authorized 
during  the  Civil  War  held  office  in  the  volunteer  military  service 
analogous  to  military  office  in  the  Regular  Army,  the  incumbents  of 
which  were  inducted  into  office  in  the  operation  of  the  constitutional 
appointing  power.  It  became  necessary  to  provide  some  means  by 
miich  military  offices  in  the  volunteer  forces  could  be  filled,  and  a 
requirement  that  such  offices  should  be  filled  by  election,  which  was 
embodied  in  section  10  of  the  act  of  July  22, 1861  (12  Stat.  270) ,2  was 
subsequently  replaced  by  a  requirement  of  section  3  of  the  act  of 
August  6,  1861  (12  Stat.  318),  which  vested  power  in  the  governors  of 
the  several  States  to  fill  vacancies  thereafter  occurring  in  regiments 
and  other  volunteer  organizations  furnished  by  said  States  for  service 
m  the  Volunteer  Army.  Officers  so  appointed  were  "accepted"  as 
officers  of  the  organizations  in  which  they  had  been  duly  appointed  by 
the  governors  of  the  several  States  by  "  muster-in"  by  a  duly  author- 
ized mustering  officer  representing  the  United  States.  U.  25831, 
Nov.  22,  1909. 

V  A  4  d.  When  State  volunteer  troops  are  raised  as  those  of  the 
Civil  War  and  of  1898  were,  there  are  three  parties  to  the  act — the 
individual  entering  the  service,  the  State,  and  the  United  States,  and 
it  is  the  acceptance  by  the  United  States  that  completes  the  act. 
Held  that  the  well-established  method  of  accepting  the  officers  was 
by  muster-in.  Held  also  after  a  regiment  had  been  mustered  in  if  a 
vacancy  occurred  and  a  new  appointment  of  an  officer,  whether  by 
promotion  or  otherwise,  was  to  be  made  that  there  were  the  same  three 
parties  to  the  act — the  individual  entering  the  service,  the  State,  and 
the  United  States.  The  concurrence  of  the  United  States  in  this 
appointment  was  likewise  essential  in  order  to  give  it  effect,  and  this 
concurrence  was  evidenced  by  a  muster-in  in  the  office  to  which  the 
appointment  was  made.  The  former  muster  into  service  only  related 
to  the  appointment  then  made;  it  could  not  possibly  cover  a  subse- 
quent appointment  to  another  office.'  C.  9774,  Feb.  25,  1901;  9773, 
Feb.  26,  1901;  U587,  Jan.  12,  1904;  25831,  Nov.  22,  1909. 

V  A  4  e.  The  act  of  Congress  approved  April  22,  1898  (30  Stat. 
363),  prescribed  "that  all  the  regimental  and  company  officers  shall 
be  appointed  by  the  governors  of  the  States  in  which  their  respective 
organizations  [volunteer]  are  raised."  Held,  that  this  included  not 
only  the  original  appomtmehts  in  such  organizations,  but  appoint- 

tered  into  the  service,  and  that  the  details  of  "enrollment  and  organization  "  would  be 
made  known  through  the  Department  of  War.  On  the  following  day  the  War  Depart- 
ment published  a  "plan  of  organization"  which  provided,  among  other  things,  for 
the  appointment  of  certain  commissioned  officers  of  each  regiment  by  the  governor 
of  the  State  furnishing  it;  and  shortly  afterwards  the  department  sent  out  to  mustering 
officers  and  others  instructions  relative  to  mustering  into  service  the  organizations 
that  should  present  themselves.     Ibid. 

^  The  class  of  officers  who  were  mustered  in  without  previous  appointment  or  com- 
mission was  composed  chiefly  of  officers  raised  hastily,  notably  in  Missouri,  Kentucky, 
Tennessee,  and  Maryland,  early  in  the  war.     (See  R.  &  P.  456829.) 

2  Approved  by  the  Secretary  of  War  and  published  to  the  service  in  circular  form 
Mar.  15.  1901. 


824  OFFICE  V  A  5  a. 

merits  to  fill  vacancies  thereafter  occurring.^     C.  4084,  4228,  April 
and  June,  1898. 

V  A  5  a  (1).  The  date  on  which  a  volunteer  officer,  appointed  by 
the  President,  formally  accepts  his  appointment  should  be  considered 
as  the  date  of  the  commencement  of  his  mihtary  service.  No  such 
officer  should  be  recognized  as  having  been  in  the  military  service 
under  his  appointment  because  of  any  service  that  may  have  been 
rendered  by  him  prior  to  his  formal  acceptance  of  that  appointment. 
C.  66U,  June,  1899. 

V  A  5  a  (2).  During  the  War  with  Spain  regiments  of  United 
States  Volunteers  were  organized.  Held  that  the  commissioned 
officers  of  such  regiments  did  not  hold  office  until  they  were  commis- 
sioned. Held  further  that  the  remedial  legislation  of  March  3,  1899 
(30  Stat.  1073),  which  appropriated  money  for  the  payment  of  such 
organizations  for  a  time  preceding  commissioning  of  the  officers  was 
a  recognition  of  the  fact  that  the  officers  were  not  in  the  service  of 
the  United  States  during  the  period.  C.  7050,  Sept.,  1899,  and 
Oct.,  1900. 

VA5b  (1).  Although  men  may  undoubtedly  become  soldiers 
in  the  military  service  of  the  United  States  without  formal  enlist- 
ment, held  that  the  War  Department  has  never  admitted  that 
volunteer  officers  appointed  by  governors  of  States  could  become 
officers  in  the  service  of  the  United  States  without  muster-in,^  i.  e., 
they  can  not  be  constructively  mustered  in.  C.  9773,  Feb.  26,  1901; 
25881,  Nov.  28,  1909. 

V  A  5  b  (2).-  The  act  of  July  22,  1861  (12  Stat.  261),  vested  the^ 
authority  to  appoint  all  commissioned  officers  of  the  volunteer  forces* 
in  the  governors  of  the  several  States.  Held  that  office  did  not  fully 
vest  in  such  appointees  until  they  had  been  formally  mustered  in  by 
a  duly  authorized  commissary  of  musters  acting  in  behalf  of  the 
United  States.  Held,  further,  that  until  such  muster-in  had  been 
accomplished  the  appointment  was  revocable  by  the  governor.  Held, 
further,  that  after  muster-in  the  power  of  the  governor  in  respect 
thereto  was  exhausted  and  the  subsequent  tenure  of  the  incumbent 
was  determined  by  the  laws  of  Congress  relating  to  the  maintenance 
of  volunteer  forces.^     C.  1^587,  Jan.  12, 1904;  16516,  July  5,  1904. 

V  A  5  b  (3).  Held  that  the  War  Department  can  not  recognize  the 
authority  of  a  mustering  officer  to  muster  in  an  officer  on  one  date,  to 
date  from  an  earlier  date,  nor  can  it  recognize  the  officer  so  mustered 
in  as  of  the  grade  conferred  by  such  muster-in  from  the  earlier  date 
mentioned  in  the  muster-in  roU.^     C.  9778,  Feh.  26, 1901 . 

V  A  6  a.  Officers  of  Volunteers  appointed  by  the  governors  of  States 
under  the  act  of  April  22,  1898  (30  Stat.  361),  who  performed  serv- 

1  The  majority  of  all  officers  of  Volunteers  during  the  Civil  War  were  appointed  by 
the  governors  and  mustered  into  the  service  of  the  United  States  by  duly  appointed 
United  States  mustering  officers.  (See  R.  &  P.  456829.)  See  a  previous  opmion  of 
the  Attorney  General  to  the  contrary,  22  Op.  Atty.  Gen.,  536,  July  18,  1899. 

2  Approved  by  the  Secretary  of  War  and  published  to  the  service  in  circular  form 
Mar.  18,  1901. 

3  Only  officers  of  the  Regular  Army,  including  additional  aides-de-camp  appointed 
by  the  President  under  the  law  of  Aug.  5,  1861,  and  even  these  only  when  detailed  to 
do  so  by  competent  authority  could  act  as  muster-in  officers  (G.  0.  No.  66,  1861;  G.  O. 
No.  48, 1863,  and  the  Mustering  Regulations  of  Nov.  20,  1863).  See  R.  and  P.  456829. 
Also  see  23  Op.  Atty.  Gen.,  412. 

*  This  opinion  was  approved  by  the  Secretary  of  War  and  published  in  circular  form 
Mar.  18,  1901. 


OFFICE  V  A  7  a.  825 

ice  and  were  treated  as  though  in  office,  and  were  recognized  in  con- 
temporaneous official  record  but  not  mustered  in,  woulcl  not  acquire 
rights  based  upon  such  defective  title,  but  held  that  their  lawful  acts, 
so  far  as  the  rights  of  third  persons  are  concerned,  if  done  within  the 
scope  and  bv  the  apparent  authority  of  the  offices,  are  as  valid  and 
binding  as  if  such  officers  were  legally  qualified  for  the  offices  and  in 
full  possession  thereof.^     C.  9773,  Feb.  26,  1901. 

V  A  7  a.  A  captain  of  New  York  Cavalry  accepted  during  the  Civil 
War  the  office  of  captain  and  assistant  quartermaster  of  volunteers. 
Held  that  his  acceptance  of  that  office  vacated  the  office  of  captain 
of  Cavalry,  which  he  had  theretofore  occupied.  P.  40,  158,  Apr., 
1890. 

V  A  7  b.  An  enlisted  man  was  appointed  to  the  office  of  captain 
in  another  organization  and  accepted  such  appointment.  Upon  the 
issuance  of  an  order  purporting  to  revoke  his  appointment  he  returned 
to  service  as  a  private,  as  directed  in  the  order.  Held  that  he  aban- 
doned the  office  of  captain  and  it  thereby  became  vacant.  C.  2293, 
June  2,  1896. 

V  A  7  c.  In  view  of  the  fact  that  the  tenure  of  office  of  a  volunteer 
officer  is  for  a  fijk:ed  term  and  for  a  limited  time  only,  the  President 
has  not  the  same  power  of  dismissal  as  in  the  case  of  a  regular  officer, 
since  dismissal  in  the  case  of  a  volunteer  officer  is  not  an  incident  of 
the  appointing  power.  Held,  however,  that  where  the  President 
directed  the  cancellation  of  the  muster  in  of  a  volunteer  officer  on 
account  of  unfitness  to  hold  commission  it  was  a  legal  exercise  of 
the  authority  of  summary  dismissal  for  cause  vested  in  the  President 
by  section  17  of  the  act  of  July  17,  1862  ^  (12  Stat.  594).  P.  46, 
102,  Mar.,  1891;  52  496,  Mar.  1892;  61,  264,  Aug.,  1893. 

V  A  7  d  (1).  Held  that  in  view  of  the  fact  that  the  Government 
does  not  need  or  demand  a  complete  and  final  severance  of  a  volun- 
teer officer's  relation  with  civil  life,  as  he  is  not  permanently  engaged 
in  the  military  service,  that  a  civil  officer  does  not  vacate  such  office 
by  accepting  and  holding  a  commission  in  the  Volunteer  Army.^  C. 
4223,  June  1,  1898.  Held,  however,  that  the  acceptance  by  an  offi- 
cer of  Volunteers  after  muster  in  of  the  position  oi  a  member  of  the 
State  legislature  would  vacate  his  office  in  the  Volunteers."*  G.  4233, 
June  2, 1898. 

V  A  7  d  (2)  (a).  The  act  of  Congress  approved  May  28,  1898  (30 
Stat.  421),  provided  that  officers  of  the  Regular  Army  receiving  com- 
missions in  the  Volunteer  Army  should  not  be  held  to  vacate  their 
offices  in  the  Regular  Army  by  accepting  the  same,  and  the  act  of 
Congress  approved  March    2,    1899    (30  Stat.   979),  provided  that 

1  This  reverses  a  previous  opinion  of  Mar.  31,  1879  (R.  41,  535),  in  the  case  of  so- 
called  Chaplain  Blake. 

Approved  by  the  Secretary  of  War  and  published  to  the  service  in  circular  form 
Mar.  18,  1901. 

2  See  Mechem  on  Public  Ofl&cers,  p.  283,  sec.  445;  and  Parsons  v.  United  States,  30 
Ct.  Cls.,  222. 

The  act  of  July  17,  1862,  ceased  to  exist  after  the  completion  of  the  Civil  War;  it 
has  been  the  practice  of  Congress,  however,  in  subsequent  legislation  authorizing  the 
employment  of  Volunteers  to  vest  in  the  President  during  the  period  of  the  war  power 
to  dismiss  officers  of  such  Volunteers. 

2  22  Op.  Atty.  Gen.,  88,  June  10,  1898. 

*  The  governor  of  a  State  has  no  power  to  depose  an  officer  or  interfere  with  the  organ- 
ization of  a  regiment  to  which  he  belongs  after  such  regiment  is  accepted  and  mustered 
into  the  service  of  the  United  States.     (10  Op.  Atty.  Gen.,  279,  306,  and  22  id.,  536. 


826  OFFICE  V  A  7  d  (2)  (h). 

Regular  Army  officers  continued  or  appointed  as  field  or  staff  officers 
of  Volunteers  under  the  provisions  of  that  act  should  not  vacate 
their  Regular  Army  commissions.  The  foregoing  enactments  were 
obviously  intended  to  apply  to  officers  already  in  commission  in  the 
Regular  Army  at  the  date  when  the  Volunteer  Armies  of  1898  and 
1899  were  organized  and  enabled  them  to  hold  higher  military  office 
in  such  volunteer  forces  without  vacating  their  Regular  Army  offices. 
a  16823,  Sept  13,  1904. 

V  A  7  d  (2)  (6).  Held,  that  an  officer  of  Volunteers  who  in  the 
operation  of  the  act  of  February  2,  1901  (31  Stat.  748),  and  subse- 
quent acts  amendatory  thereof,  "had  been  appointed  to  office  in  the 
Regular  Army  might  lawfully  continue  to  hold  his  Volunteer  com- 
mission and  to  exercise  the  functions  and  perform  the  duties  which 
are  incident  to  his  office  in  the  Volunteer  establishment;  and  that 
office  in  such  Volunteer  forces  is  not  vacated  merely  because  the  in- 
cumbent has  been  appointed  to  office  in  the  Regular  Army.  0. 16823, 
Sept.  13,  1904. 

V  A  7  6.  The  abolishment  of  an  office  through  operation  of  law 
necessarily  changes  the  status  of  the  person  who  had  occupied  the 
office  before  its  abolishment  from  that  of  an  officer  to  that  of  a 
civilian.  '  Held  that  the  rules  which  govern  the  matter  of  dismissing 
an  officer  from  an  office  which  continues  to  exist  do  not  apply  here. 
Held,  therefore,  in  a  particular  case  where  a  man  held  the  office  of 
supernumerary  second  lieutenant  of  Company  G,  Eleventh  Kentucky 
Cavalry,  and  the  office  was  abolished  by  the  act  of  March  3,  1863,  that 
the  status  of  that  man  changed  from  that  of  officer  to  civilian  on  the 
date  of  the  approval  of  the  act  of  March  3,  1863.  P.  53,  452,  May  21, 
1892;  C.  23071,  Apr.  11,  1908;  I4148,  Dec.  15,  1911. 

V  A  7  f .  An  officer  was  sentenced  by  a  general  court-martial  to  be 
cashiered,  and  the  sentence  was  approved  and  published  in  orders. 
It  is  not  shown  that  the  order  was  communicated  to  the  officer,  who, 
pending  its  publication  was  returned  to  duty  ''without  prejudice  to 
sentence  of  court-martial,"  and  remained  thereafter  in  performance 
of  duty  with  the  company  until  it  was  mustered  out.  Held  that  the 
sentence  of  the  court  was  not  carried  into  effect  prior  to  the  muster 
out  of  the  officer  and  for  that  reason  was  without  force.  P.  37,  4^7, 
Jan.  6,  1890. 

CROSS    REFERENCE. 

Abolishment  of See  Volunteer  Army  I V  D  I  a  (5)  (a). 

Army  officer,  eligibility  for  commission  in 

National  Guard See  Militia  III  F;  XVI  K. 

Description  of,  in  bond See  Bonds  II  M. 

Distinguished  from  rank See  Command  I  A. 

Engineer  Brigade,  United  States  Volunteers.  See  Volunteer  Army  III  A  to  B, 

Is  not  rank See  Rank  I  A. 

Medical  Reserve  Corps See  Army  I  G  3  d  (3)  (c)  [2]. 

Militia,  not  Federal  office See  Militia  II  to  III. 

Retired  enlisted  men See  Retirement  II  B  2;  D  to  E. 

Retired  officer j See  Claims  X. 

Retirement  I  G;  G  2  to  4. 

Right  to See  Discipline  VIII  G  1  c. 

Without  rank See  Rank  I  A  1 . 

Vacation  of,  by  disbursing  officer See  Bonds  II  E. 

Volunteers See  Office  V  to  VI . 

Volunteer  Army  II  F  1  to  2. 


i 


OFFICER — OFFICER   OF   THE  DAY.  827 

OFFICER. 

See  Army  I  C  to  D. 

Abuse  of  soldier See  Discipline  V  D  2  a;  XIV  E  9  d  (1)  (6); 

XVII  B  1  a  to  g. 

Desertion  IX  K. 

Articles  op  War  LXII  D. 

Arrest  of. See  Discipline  I  D  1  to  4. 

Bonded,  relief  of. See  Absence  I  B  1  f . 

Can  not  serve  foreign  Governments See  Army  I  C  3. 

Certificate  of  merit '. See  Insignia  op  merit  II  I. 

College  instructors See  Military  instruction  II  B  1  to  2. 

Congress,  correspondence  vnth See  Communications  IV  B  2. 

Conservator See  Discipline  III  E  5  a. 

Contract  by See  Contracts  II. 

Court  of  inquiry See  Articles  op  War  CXV  A;  CXIX  A; 

B*  CXXI  A 

Debts  of See  Army  I  B  2  a  (2);  (2)  (a). 

Defense  of,  in  civil  courts See  Army  I  B  5  a. 

Deprivation  of  pay  and  allowances See  Pay  and  allowances  III  A  to  B. 

Desertion  of. See  Desertion  XX  A  to  F. 

Opfice  IV  D  4. 

Discharge  of. See  Discharge  II A 1;  2;  XVIIA;B;XXI 

A;  B. 

Examination  for  promotion See  Retirement  I  B  6  to  8. 

Expert  accountant,  Inspector  General's  De- 
partment  See  Civilian  employees  I  A  1. 

Forage See  Pay  and  allowances  II  A  2  d  to  e. 

Heat  and  light See  Pay  and  allowances  II  A  1  c  to  d. 

Horse,  sale  to  Government See  Army  I  G  3  b  (2)  (6) 

Impersonation  of. See  Uniporm  I  C. 

Improper  attempt  to  influ£nce  War  Dept. .  .See  Communications  IV  B  1. 

Indians,  instruction  of. See  Army  II  C  1. 

Interment  of. See  Pay  and  allowances  II  A  2  c  to  d. 

Intoxicants See  Intoxicants  III  D  to  E. 

Jury  duty  and  road  tax See  Civilian  employees  III  A. 

Militia  duty  ivith See  Militia  VI  A  2  a. 

Mounted See  Pay  and  allowances  I  B  7  to  8. 

Patent  by See  Patent  VII  to  VIII. 

Pay See  Pay  and  allowances  I  B  to  C. 

Pay  can  not  be  attached See  Army  I  C  2, 

Quarters See  Pay  and  allowances  II  A  2  b  to  c. 

Refuses  to  sign  certificate See  Articles  op  War  XXI  C  1  a. 

Regular,  holding  office  in  militia See  Militia  XVI  K. 

Opfice  IV  A  2  d  (1). 

Relief  of,  by  act  of  Congress See  Army  I  B  6  a. 

Residence See  Residence  I. 

Retired  status See  Retirement  I  G. 

Retirement  of. See  Retirement  I  to  II. 

Servant See  Officer's  servant. 

A.RTICLES  OP  War  XXI  C  2  a. 

Supplies  purchased  from See  Contracts  XV  to  XVI. 

Taxation See  Tax  I  to  II. 

Transportation See  Pay  and  allowances  II  A  2  a  to  b. 

Unassigned  list See  Army  I  G  2  b  (2). 

OFFICER   IN    CHARGE    OF   PUBLIC    BUILDINGS   AND    GROUNDS 

IN   WASHINGTON. 

Status  of See  Command  I  C. 

OFFICER   OF   THE   DAY. 

Drunk See  Articles  op  War  XXXVIII  B  3. 


828  officer's  servant — official  records  I  a  1. 

OFFICER'S   SERVANT. 
I.  CHINESE. 
n.  FILIPINO. 

A.  Private  Arrangement. 

B.  Officer's  Control  Over  Servant. 

I.  As  the  enforcement  of  the  Chinese  exclusion  acts  is  in  the 
Treasury  Department,  lield  that  an  officer  should  apply  to  that 
department  for  authority  to  introduce  a*  Chinese  servant  into  the 
United  States.     C.  11127,  Aug.  22,  1901. 

II  A.  An  Army  officer  has  no  greater  authority  over  Filipino  boys 
brought  back  with  him  from  the  Philippine  Islands  than  has  any 
other  citizen.     C.  20468,  Oct.  5,  1905. 

II  B.  If  Filipino  boys  are  brought  to  this  country  on  the  condition 
that  they  act  as  servants  and  with  the  understanding  that  they 
shall  be  transported  back  to  the  Philippine  Islands  at  the  expense 
of  the  officer  oringing  them  over  here,  and  they  leave  the  service 
of  such  officer,  JieM,  that  the  officer  would  be  under  no  liability  to 
get  them  back  to  the  Philippines.     C.  20468,  Aug.  31,  1909. 

CROSS  reference. 

Admission  to  hospital See  Army  I  G  3  d  (8)  (a). 

As  cavip  follower See  Articles  of  War  LXIII  A  1. 

Soldier  can  not  be See  Articles  of  War  XXI  C  2  a; 

Army  I  C  1. 

OFFICIAL   RECORDS. 

I.  OFFICIAL  PAPERS. 

A.  On  File  in  War  Department. 

1.  Confidential  archives,  copies  may  be  furnished Page  828 

2.  Copies  furnished Page  829 

a.  To  civil  courts  upon  certificate  as  to  necessity. 

3.  No  official  can  change  a  record, 

B.  On  File  at  Department  Headquarters. 

1.  Charges  and  specifications Page  830 

C.  Useless  Papers. 

1.  Outside  of  War  Department. 

a.  May  be  destroyed  by  order  of  Secretary  of  War. 

I  A  1.  The  official  papers  on  file  in  the  War  Department  are  not 
public  records  open  to  the  inspection  of  any  citizen;  but,  except  in  so 
far  as  law  or  usage  has  provided  for  the  furnishing  of  copies  of  the 
same  or  the  publication  of  their  contents,  as  in  the  case  of  the  records 
of  military  courts,  such  papers  are  confidential  archives  of  the  Gov- 
ernment which  may  be  consulted,  or  of  which  copies  may  be  furnished, 
only  by  the  authority  of  the  Secretary  of  War,  except  where  the 
courts  of  law  may  properly  require  their  exhibition  in  evidence.' 
The  Secretary,  in  his  capacity  as  an  agent  of  the  public,  will  of  course 
be  disposed  to  grant  to  proper  persons  such  facilities  for  obtaining 
information  from  the  records  of  his  department  as  may,  with  due 
regard  to  the  public  interests,  be  accorded.  Where  application  is 
made  for  copies  of  papers,  it  will  be  for  him,  in  view  of  the  nature  of 

1  The  admission  of  copies  in  evidence  is  authorized  by  sec.  882,  R.  S.,  as  follows: 
"Copies  of  any  books,  records,  papers,  or  documents  in  any  of  the  executive  depart- 
ments, authenticated  under  the  seals  of  such  departments  respectively,  shall  be 
admitted  in  evidence  equally  with  the  originals  thereof." 


OFFICIAL  RECORDS  I   A  2.  829 

the  information  sought,  the  use  proposed  to  be  made  of  the  same,  etc., 
to  determine,  in  his  discretion,  whether  the  private  interests  involved 
are  such  as  properly  to  outweigh  any  public  considerations  which  may 
exist  against  granting  the  privilege.  In  furnishing  copies,  a  distinc- 
tion wul  properly  be  made  between  documents  in  the  nature  of  per- 
manent records,  such  as  general  or  special  orders,  muster  rolls, 
discharges  of  soldiers,  commissions  of  officers,  etc.,  and  the  reports 
and  communications  of  officers  addressed  to  military  superiors  or  to 
the  Secretary  of  War  in  the  line  of  their  official  duty.  The  latter  are 
generally  regarded  as  privileged  communications  which  even  the  courts, 
on  grounds  of  public  policy,  will  in  general  hold  to  be  incompetent 
testimony  and  of  whicn  they  will  refuse  to  require  the  production  in 
evidence.*  i?.  19,  375,  and  21,  142,  Jan.,  1866;  24,  27,  Nov.,  1866; 
28,  26,  July,  1868;  C.  7912,  Apr.,  1900. 

I  A  2.  It  is  the  weU  established  practice  of  the  War  Department 
to  decline  to  furnish  copies  of  records,  save  upon  a  call  from  Congress 
or  one  of  its  committees,  or  upon  the  order  of  a  court  of  the  United 
States  or  a  request  from  some  other  branch  of  the  executive,  for  its 
official  use,  as  from  the  accounting  officers  of  the  Treasury,  or  from 
the  Land  Office,  the  Indian  Bureau,  etc.  This  practice  is  believed 
to  be  general  among  the  executive  departments.^  C.  7912,  Oct.  5, 
1910.  The  same  rule  would  apply  as  to  furnisliing  copies  of  Govern- 
ment papers  and  records  whicn  are  not  a  part  of  the  records  of  the 
War  Department.  C.  26841,  June  1,  1910.  Where  a  request  was 
received  from  a  Member  of  Congress  for  a  copy  of  certain  papers  in 
the  War  Department  to  enable  him  to  prepare  a  bill  for  legislative 
relief  of  the  family  of  a  citizen  who  was  killed  by  a  stray  shot  while 
troops  were  engaged  in  target  practice,  recommended  that  the  copies 
be  not  furnished.     C.  7912,  Oct.  5,  1910;  23069,  Dec.  9,  1911. 

I  A  2  a.  Where  copies  of  bonds  and  other  papers  and  records  of 
the  War  Department  are  necessary  to  aid  in  the  administration  of 
justice,  and  are  applied  for,  it  is  usual  to  require  a  certificate  of  the 
tribunal  before  which  the  matter  is  pending  to  the  effect  that  the 
same  is  necessary  and  material  to  such  proceeding.  C.  19264,  July 
9  and  Sept.  10,  1909. 

I  A  3.  No  official  of  the  War  Department,  or  other  executive 
officer,  is  empowered  to  change  a  record  oifact — to  so  alter  the  official 
record  of  a  soldier  that  it  shall  state  that  as  a  fact  which  is  not  a  fact, 
whatever  may  be  the  equities  of  the  case.  It  can  not,  for  example,  be 
made  to  appear  on  such  a  record  that  the  soldier  has  been  discharged, 

1  See  Dawkins  v.  Ld.  Rokeby,  8  Q.  B.  255;  Dawkins  v.  Ld.  Paulet,  5  L.  Reps.,  Q.  B. 
94;  Dickson  v.  Earl  of  Wilton,  1  Fos.  &  Fin.  419;  Home  v.  Ld.  Bentinck,  2  Brod.  & 
Bing.  130;  Beatson  v.  Skene,  5  Hurl.  &  Nor.  837,  855  (Am.  Ed.);  Gardner  v.  Ander- 
son, 22  Int.  Rev.  Rec.  41;  1  Greenl.  Ev.,  sec.  251;  11  Opins.  Atty.  Gen.  142;  15 id.  378, 
415.  In  the  recent  case  of  Maurice  v.  Worden,  54  Md.  233 — an  action  for  damages  on 
account  of  a  libel  claimed  to  have  been  contained  in  a  communication  of  the  class 
indicated  in  the  text — it  was  held  that,  while  such  a  communication  is  not  "abso- 
lutely privileged,"  it  is  privileged  to  the  extent  that  the  occasion  of  making  it  rebuts 
the  presumption  of  malice,  and  throws  upon  the  plaintiff  the  onus  of  proving  that  it 
was  not  made  from  duty  but  from  actual  malice  and  without  reasonable  and  probable 
cause."  But  see  dissenting  opinion  of  Miller,  J.  See  also  Am.  and  Eng.  Ency.  of 
Law  (Isted.),  v.  19,  123;  Best,  Principles  of  Ev.,  561,  note  (a);  Wharton  Law  of  Ev., 
V.  1,  sec.  604;  Worthington  v.  Scribner,  109  Mass.,  487;  Appeal  of  Hartranft  et  al,  85 
Pa.  St.,  433;  U.  S.  v.  Six  Lots  of  Ground,  1  Woods,  234  (Fed.  Cases,  No.  16,299). 

2  See  Boske  v.  Cumingore,  177  U.  S.,  459;  Barney  v.  Schmeider,  9  Wall.,  248;  Mar- 
bury  V.  Madison,  1  Cranch,  137;  United  States  ex  rel  Dunlap  v.  Black,  128  U.  S.,  40; 
United  States  ex  rel  Boynton  v.  Blaine,  139  U.  S.,  306. 


830  OFFICIAL   RECORDS   I   B   1. 

mustered  out,  reenlisted,  or  mustered  in,  when  in  fact  he  has  not  been. 
Congress  alone  can  grant  rehef  in  such  cases  by  authorizing  such 
entries  of  record  as  would  in  effect  accomplish  the  object  sought — as 
it  has  indeed  done  in  repeated  instances.^  P.  35,  357, 393,  and 36, 1 75, 
Oct.,  1889;  40,  225,  Apr.,  1890;  C,  2931^,  Feb.  10,  1897;  8962,  Sept., 
1900.  The  general  rule  is  that  only  erroneous  records  shall  be 
amended,  and  the  object  of  their  amendment  should  be  to  make 
them  state  the  truth  (by  correction  by  the  person  who  made  them  or 
such  entry  thereon  by  another  as  may  be  duly  authorized).  The 
exception  to  the  general  rule  is  where  a  statute  requires  a  certain 
amendment  to  be  made.  But  in  such  an  instance  the  statute  should 
be  strictly  observed  and  applied  only  to  the  class  of  cases  falling  within 
its  purview.     P.  56,  352,  Nov.,  1892. 

>  I B  1 .  The  charge  and  specifications  which  are  referred  to  a  court  mar- 
tial for  trial  are  a  public  document,  and  I  know  of  no  authority  for  its 
destruction.  The  paper  has  no  further  official  function  after  the  ar- 
raignment has  been  made  and  the  record  of  the  court  contains  the 
charges  upon  wliich  the  accused  is  to  be  tried.  The  official  character 
of  the  paper  suggests  the  disposition  which  should  be  made  of  it. 
It  was  referred  to  the  judge  advocate  of  the  court  by  the  convening 
authority,  and  should  be  returned  to  him  for  file  in  his  office.  The 
statement  of  service,  in  a  case  where  there  has  been  a  conviction  of 
desertion,  should  be  forwarded  to  the  office  of  the  Judge  Advocate 
General;  in  all  other  cases  it  should  be  returned  to  department  head- 
quarters for  file  in  the  judge  advocate's  office.     C.  15833,  Jan.  28,1904-. 

I  C  1  a.  Held  that  all  useless  and  valueless  official  papers  per- 
taining to  the  records  of  military  headquarters,  posts  or  stations, 
could  legally  be  destroyed  by  an  order  of  the  Secretary  of  War  without 
a  resort  to  legislation.     P.  63,  120,  Jan.,  1894- 

Held  that  the  term  '^ Executive  departments"  as  used  in  the  act 
of  February  16,  1889  (25  Stat.  672),  and  in  prior  legislation  in  pari 
materia  which  authorized  the  destruction  of  certain  useless  papers, 
had  obvious  relation  to  the  executive  departments  in  the  city  of 
Washington.2     C.  16319,  May  12,  1904. 

CROSS    REFERENCE. 

Alteration See  Volunteer  Army  IV  H  1. 

'  Amendment See  Discharge  XVI  B  2 ;  XIX. 

Changed  by  act  of  Congress See  Discharge  XVI  H. 

Confidential See  Army  I  G  3  a  (3);  (4)  (a)  [2]. 

Evidence See  Discipline  XI  A  17  a  to  b. 

Desertion  IV  A  to  O. 

Medal  of  honor See  Insignia  I  A  2  a. 

Mistake See  Desertion  V  F  4  a. 

Muster-in  rolls See  Volunteer  Army  II  D  to  E. 

Muster-out  date See  Volunteer  Army  IV  D  3  c. 

Mutilation,  improper See  Desertion  XVI  C  1;  3;  Dla;  b. 

Name  changed See  Name  IV. 

Nunc  pro  tunc See  Enlistment  I  A  8  c. 

Pardon  does  not  change See  Desertion  XV  A. 

Rule  as  to  furnishing See  Army  I  B  2  c  (1) ;  (2). 

Summary  court  record See  Discipline  XVI  E  8  a. 

^  But  see  the  act  of  Mar.  3,  1909  (35  Stat.  836),  in  which  the  Congress  authorized 
the  appointment  of  a  court  of  inquiry  with  jurisdiction  to  pass  on  the  question  of 
the  character  of  service  of  men  who  had  been  discharged  without  honor,  and  to  correct 
their  records. 

^  For  rule  as  to  destruction  of  old  regimental  and  company  papers  see  par.  258  and 
281  A.  R.,  1910,  ed. 


OPEN    MARKET  TRANSACTION — PARDON:    SYNOPSIS.  831 

OPEN   MARKET   TRANSACTION. 

See  Contracts  VII  E  5;  XXVIII. 

OPIUM. 

Restraint  of  sale See  Intoxicants  II  E. 

Use  of. See  Articles  of  War  XXXVIII  A. 

OPTION. 

See  Contracts  XXXIV. 
Renewal  of  lease See  Public  Property  VII  A  4. 

ORDERS. 

See  Communications  I  to  II. 

Convening See  Discipline  III  to  IV. 

For  revision See  Discipline  IX  N  2. 

Nunc  pro  tunc See  Communication  I  D. 

Promulgating See  Discipline  XIV  to  XVI. 

Retiring,  irrevocable See  Retirement  II  G. 

Revoking  order  null See  Pardon  XVI  B. 

To  home  for  discharge .See  Volunteer  Army  IV  D  2  a  (1);  (2). 

"Waitin{i" See  Pay  and  allowances  I  B  2. 

ORDNANCE   DEPARTMENT. 

See  Army  I  G  3  b  (4)  to  (5). 
Retirement  of  officer See  Retirement  I  B  4  a. 

ORGANIZATION. 

Militia See  Militia  III  to  IV. 

Regiments See  Laws  II  A  1  d. 

Volunteers See  Volunteer  Army  III  to  IV. 

ORIGINAL   PACKAGE. 

Delivery  of  intoxicants  in See  Intoxicants  II  A  1. 

OTHER   FORCES. 

See  Articles  of  War  LXXVII  A  to  B. 

PANAMA. 

Intervention See  War  I  C  8  c  (1). 

United  States  responsible  for  order See  Territories  V  A. 

PARDON. 

I.  AUTHORITY  TO  GRANT. 

A.  President's  Power  is  Complete Page  832 

1.  Prisoner  transferred  from  department  in  which  tried. 

B.  Congress  May  Not  Control  Pardoning  Power  of  the  President. 

1.  Can  not  confer  pardoning  power  on  Secretary  of  War. 

n.  MUST  BE  DELIVERED  AND  ACCEPTED PageSSS 

A.  May  Be  Revoked  Before  Delivery, 
m.  REMOVES  ALL  UNEXPECTED   PENALTIES. 

A.  Including  Punishments. 

B.  State  Statutes  Excepted Page8S4 


832  PARDON   I  A. 

IV.  EXTENDS  TO  CONTINUING  PUNISHMENTS. 

A.  Application  of  Pardon  to  Loss  of  Files. 
V.  RESTORES  CITIZENSHIP  FORFEITED  BY  DESERTION. 
VI.  GROUNDS  UPON  WHICH  PARDON  IS  RECOMMENDED— CASES.    See 

also  Discipline  xv  F  to  G. 
vn.  CONDITION   PRECEDENT. 

A.  To  Pardoning  Embezzler  or  Thief Page  835 

B.  To  Pardoning  Deserter  at  Large. 

Vm.  NOT  RETROACTIVE— CASES Page  836 

IX.  DOES  NOT  REACH  EXECUTED  SENTENCES— CASES. 

X.  PARDON  OF  ENEMY Page  837 

XI.  PARDON  FOR  POLITICAL  OFFENSE  DOES  NOT  EXTEND  TO  CRIME. 
Xn.  MEN  AVHO  LEAVE  COUNTRY  IN  TIME  OF  WAR  NOT  PARDONED. 
Xm.  SUMMARY  DISCHARGE  WHILE  SERVING  SENTENCE. 
XIV.  DOES  NOT  CONFER  ELIGIBILITY  FOR  ENLISTMENT. 
XV.  CONSTRUCTIVE  PARDON. 

A.  Withdrawal  of  Charge  in  View  of  Pledge,  is  Not Page  833 

B.  Reappointment  of  Dismissed  Officer,  is  Not. 

C.  Promotion  of  Officer. 

1.  Before  sentence  is  promulgated. 

2.  During  execution  of  sentence. 

a.  To  retain  place  on  lineal  list. 

3.  By  selection. 

4.  By  seniority  alone. 

5.  LTnder  orders  for  summary  dismissaL 

D.  Ordering  to  Duty. 

1.  Officer  or  soldier  under  sentence. 

2.  By  authority  inferior  to  the  convening  authority Page  839 

a.  Division  commander,  convening  authority;  department  com- 
mander, restoring  officer  to  duty. 

3.  After  charge  is  preferred,  before  sentence  is  promulgated. 

4.  Of  deserter  without  trial. 
XVI.  REMISSION. 

A.  Release  From  Punishment. 

1.  Disqualification  to  hold  office Page  840 

B.  Irrevocable. 

C.  Sentence  Credited  With  Time  Previously  Served Page  841 

D.  Discharge  of  Soldier  Serving  Sentence. 

E.  In  Double  Sentence,  Remission  of  Unexecuted  Portion  of  One 

Does  Not  Affect  the  Other. 

I  A.  Held  that  Article  II,  section  2,  paragraph  1  of  the  Constitu- 
tion confers  complete  power  on  the  President  to  grant  pardons.^ 
C.  mSO,  Apr.  10,  1902. 

I  A  1.  The  President  alone  may  grant  pardon  in  cases  where  a 
prisoner  has  been  transferred  from  the  department  in  which  he  was 
tried.     C.  2001,  Jan.  22,  1896. 

I  B.  Congress  can  not  control  the  exercise  of  the  pardoning  power 
by  the  President.^     C.  12430,  Apr.  16,  1902. 

I  B  1 .  Where  it  was  proposed  to  authorize  and  direct  the  Secretary 
of  War,  by  act  of  Congress,  'Ho  revoke  and  set  aside  the  proceedings 

1  See  par.  501,  Dig.  2d  Comp.  Dec,  Vol.  III.     Sec.  20  Op.  Atty.  Gen.,  330  and  368. 

2  See  22  Op.  Atty.  Gen.,  36;  20  id.,  330.  For  power  of  Congress  as  to  granting  par- 
dons, see  Brown  v.  Walker,  161  U.  S.,  591,  and  U.  S.  v.  Wilson,  32  U.  S.,  150. 


PARDON   II.  833 

had  by  a  court-martial  *  *  *  during  the  month  of  November, 
1865,  and  to  remit  the  sentence  promulgated  thereunder  by  order  of 
April  13,  1866,"  held  that  it  was  beyond  the  constitutional  power  of 
Congress  to  thus  invest  the  Secretary  of  War  with  the  pardoning 
power  ^  {C.  I243O)  and  to  extend  it  to  a  sentence  long  since  carried 
mto  execution.  The  pardoning  power  of  the  President  under 
Article  II,  section  2,  paragraph  17,  of  the  Constitution,  can  neither 
be  added  to  nor  detracted  from  hy  legislation,^  and  it  has  been 
repeatedly  held  with  reference  to  this  power  that  it  can  not  reach 
an  executed  sentence.  It  must  be  therefore  beyond  the  authority 
of  Congress  to  vest  in  a  subordinate  official  a  power  to  pardon 
which  the  constitutional  pardoning  power  can  not  exercise.  Con- 
gress can  not  in  this  or  any  other  way  undo  the  executed  judgment 
of  a  court-martial.     P.  51,  357,  Jan.,  1892,   C.  23068,  Feb.  11,  1909. 

II.  A  pardon,  like  a  deed,  must  be  delivered  to  and  accepted  by 
the  party  to  whom  it  is  granted.^  Held,  that  there  can  be  no  pardon 
of  a  deceased  officer  or  soldier  even  though  requested  by  the  party's 
widow  or  heir,  who  is  to  be  pecuniarily  benefited  thereby.  R.  15, 
486,  654,  July  and  Sept,  1865;  21,  564,  and  22,  291,  July,  1866. 
Or  even  requested  for  the  purpose  of  having  the  stigma  removed 
from  the  record  in  the  service  of  an  officer  who  had  died  while 
under  suspension.     R.  7,  138,  Feb.,  I864. 

II  A.  A  pardon  was  issued  in  favor  of  a  general  prisoner  confined 
at  Alcatraz  Island,  CaL,  but  before  it  was  delivered  and  accepted  by 
the  prisoner  he,  by  means  of  a  forged  instrument,  secured  his  release, 
and  when  the  pardon  was  received  at  Alcatraz  was  at  large  as  an 
escaped  prisoner.  Held  that  the  pardon  could  be  legally  revoked 
and  the  subject  of  the  pardon  apprehended  and  compelled  to  com- 
plete his  sentence.''     C.  11380,  Nov.  6,  1903;  28879,  Apr.  23,  1911. 

III.  Held,  that  a  full  pardon  (otherwise  of  a  mere  remission  of  the 
punishment)  removes  all  unexecuted  penal  consequences  and  all  dis- 
abilities, attached  by  United  States  statute  (or  army  regulation)  to 
the  office,  or  to  the  conviction  or  sentence.^     R.  31,  183,  Feb.,  1871. 

III  A.  It  is  the  effect  of  the  exercise  of  the  pardoning  power  by  the 
President  to  relieve  the  party  from  all  punishment  remaining  to  be 
suffered.  Where,  therefore,  he  remits  the  unexecuted  portion  of  a 
term  of  imprisonment,  an  additional  penalty  which,  by  the  express 
terms  of  the  sentence,  was  to  be  incurred  at  the  end  of  the  adjudged 
term,  as  a  dishonorable  discharge  from  the  service,  can  not  be  enforced. 
The  pardon  having  intervened,  the  sentence  ceases  to  have  any  effect 
whatever  in  law,  and  the  soldier,  the  remainder  of  his  service  being 

1  Ex  parte  Garland.    71  U.  S.,  380,  Dec,  1866;  22  Op.  Atty;!  Gen.,  36,  Feb.  9,  1898. 

^  See  Senate  Doc.  No.  708,  60th  Congress,  2d  session,  which  publishes  a  message  of 
the  President  of  the  United  States,  in  which  he  vetoed  an  act  which  provided  for 
the  vesting  of  such  portion  of  the  pardoning  power  in  the  secretaries  of  the  Army 
and  Navy  as  should  be  necessary  to  restore  the  rights  of  citizenship  which  had  been 
forfeited  by  desertion  from  the  Army  or  Navy,  for  the  reason  that  such  act  was  an 
attempt  to  transfer  to  his  subordinates  a  portion  of  the  pardoning  power  which  had 
been  vested  in  the  President  by  the  Constitution. 

3  United  States  v.  Wilson,  7  Peters,  150;  In  re  De  Puy,  3  Benedict,  307;  6  Op.  Atty. 
Gen.,  403.  And,  in  the  absence  of  an  express  rejection,  it  is  conclusively  presumed 
to  be  accepted  on  actual  or  constructive  notice. 

^  The  pardon  was  revoked  on  the  ground  that  the  prisoner  secured  his  release  on 
a  forged  order. 

5  12  Op.  Atty.  Gen.,  81;  Ex  parte  Garland,  4  Wallace,  380;  8  Op.  Atty.  Gen.,  284; 
9  id.,  478;  14  id.,  124.    And  see  People  v.  Bowen,  43  CaL,  439. 

31106°— 12 53 


834  PARDON   III  B. 

regular — must  be  honorably  discharged.  R.  8,  669,  July,  1864; 
20,  460,  Mar.,  1866;  C.  2174,  Mar.  28,  1906;  4678,  July  27,  1898; 
7848,  Mar.  17,  1900. 

III  B.  Held,  that  a  pardon  by  the  President  will  be  ineffectual  to 
remove  a  disquahiication  incurred  by  the  offender  under  a  State 
statute.!  R.  29,  251,  Sept.,  1869;  41,  465,  Nov.,  1878;  C.  6573,  July 
12,  1899;  10806,  July  11,  1901;  12430,  Apr.  10,  1902,  with  citations; 
3531,  Feb.  9,  1910. 

IV.  The  pardoning  power  extends  to  continuing  punishments,  or 
punishments  which  are  never  fully  executed,  remitting  in  each  case 
the  punishment  from  and  after  the  taking  effect  of  the  pardon. 
C.  2174,  Mar.  28,  1906.  Of  this  class  is  the  punishment  of  disquali- 
fication to  hold  mihtary  or  pubhc  office,  as  also  that  of  the  losing  of  or 
reduction  in  ^'files''  (or  relative  rank)  in  the  list  of  officers  of  the 
offender's  grade;  these,  being  continuing  punishments,  may  be  put 
an  end  to  at  any  time  by  a  remission  by  the  pardoning  power.^  R.  30, 
262,  Apr.,  1870;  31,  24,  Nov.,  1870;  41,  158,  Mar.,  1878;  P.  41,  380, 
July,  1890;  56,  4H,  Dec,  1892;  60,  348,  July,  1893;  C.  14389,  May 
15,  1906. 

IV  A.  Held  that  a  pardon  in  the  case  of  an  officer  suffering  a  sen- 
tence of  a  loss  of  files  would  operate  to  restore  him  to  his  former  rank- 
according  to  the  date  of  his  commission,  the  ofiFicer  losing,  of  course, 
such  opportunities  for  promotion  as  might  in  the  meantime  have 
accrued.^     C.  14389,  Aug.  8,  1907. 

V.  Where  a  soldier  has  been  duly  convicted  of  desertion,  the  loss 
of  the  rights  of  citizenship  incident  thereto  is  in  practice  restored  by 
a  formal  pardon  from  the  President;  a  remission  of  the  punishment 
adjudged  by  the  court-martial  does  not  have  such  effect.  R.  31,  183, 
Feb.,  1871;  G.  3010,  June,  1897;  4H6,  May  19,  1898;  11345,  Oct.  7, 
1901;  16215,  Apr.  27,  1904.^ 

VI.  The  pardon  or  remission  of  the  unexpired  punishments  of 
soldiers,  where  favored  by  the  Judge  Advocate  General,  has  been 
recommended  on  grounds  of  which  the  principal  were  the  following: 
That  the  soldier  was  a  minor  at  enlistment.  G.  19577,  Bee.  12,  1907. 
That  he  was  enlisted  under  false  representations  as  to  the  kind  of 
service  which  would  be  required  of  him,  made  by  the  recruiting 
officer.  That  he  enlisted  as  a  mere  recruit,  did  not  have  the  Articles 
of  War  read  to  him,  and  had  no  proper  comprehension  of  the  gravity 
of  his  offence;  that  he  did  not  compreJiend  his  military  obligations 
on  account  of  an  imperfect  knowledge  of  the  English  language;  that 
he  was  an  Indian  scout  unacquainted  with  our  language  or  with  the 
Articles  of  War;  that  his  offence  was  whoUy  or  in  part  induced  by 
Tiarsh  or  injudicious  treatment  by  a  military  superior ;  that  excessive 
or  unreasonable  duty  had  been  required  of  him,  or  that  he  had  been 
put  on  duty  (as  a  guard  or  sentinel,  for  example)  when  unfit  for  the 
same  on  account  of  illness  or  partial  intoxication;  that  his  offence 
was  committed  under  a  provocation,  or  was  accompanied  by  circum- 
stances of  extenuation,  to  which  the  court  had  not  given  due  weight; 
that  prior  to  his  trial  and  sentence  he  had  been  adeguately  disciplined 
by  his  commander;  that  he  had  been  improperly  held  in  irons,  or 

1  7  Op.  Atty.  Gen.,  760. 

2  See  12  Op.  Atty.  Gen.,  547;  17  id.,  31,  656;  G.  C.  M.  O.,  54,  1884,  and  S.  O.,  116, 
A.  G.  O.,  1886;  also  G.  C.  M.  O.,  85,  A.  G.  O.,  1891. 

3  17  Op.  Atty.  Gen.,  31. 


PARDON  VII  A.  835 

handcuffed,  pending  the  trial;  that  his  confinement  had  so  seriously 
impaired  his  health  that  if  continued  it  would  endanger  his  life ;  that 
an  unreasonable  time  was  allowed  to  elapse  between  his  arrest  and 
trial,  or  after  trial  and  before  the  approval  and  promulgation  of  the 
sentence.  These  and  other  grounds  have  been  taken  into  considera- 
tion, sometimes  alone  and  sometimes  in  combination  or  in  connec- 
tion with  such  further  favorable  circumstances  as  voluntary  return 
in  case  of  desertion,  previous  good  character,  good  conduct  under 
sentence,  etc.  In  cases  of  oficers,  the  prhicipal  grounds  for  recom- 
mending pardon  or  remission  have  been — a  previous  good  record 
for  efficiency  in  the  service,  especially  in  time  of  war,  a  high  personal 
character  or  reputation,  and  an  apparent  absence  of  a  fraudulent 
or  criminal  intent  in  the  offence  as  committed.  R.  9,  2^5,  695,  June 
and  Sept.,  1864;  i3,  99,  Dec,  1864;  26,  640,  Apr.,  1868;  27,  605,  Feb., 
1869;  28,  340,  Jan.,  1869;  32,  675,  June,  1872;  34,  661,  Dec,  1873; 
P.  40,  386,  May,  1890;  4I,  273,  June,  1890;  C.  14389,  Apr.  24, 1905. 

The  following  have  also  been  the  bases  for  recommending  pardon, 
viz: 

Deserted  soon  after  enlistment.  C.  11915,  Jan.  25,  1902;  16601, 
July  20,  1904;  19577,  Jan.  11,  1907. 

Faithful  service  in  previous  enlistments.  C.  13099,  Aug.  I4,  1902; 
17519,  Feb.  10,  1905;  19577,  Feb.  27  and  Mar.  6,  1907. 

Did  not  appreciate  gravity  of  offence.     C.  19577,  May  3,  1907. 

No  specially  aggravating  circumstances  connected  with  the  deser- 
tion.    C.  2974,  Aug.  6,  1898. 

For  good  service  during  San  Francisco  catastrophe.  C.  19577, 
Sept.  12,  1907. 

Trompt  surrender  after  deserting.  C.  12270,  Mar.  24,  1902; 
13099,  Aug.  I4,  1902;  13555,  Oct.  27,  1902. 

Also  recommendation  to  the  reviewing  authority  for  clemency 
by  the  members  of  the  court  and  the  judge  advocate.  C.  15747, 
Jan.  16,  1904. 

Insane  since  before  the  preferring  of  the  charges.  C.  17386,  Oct.  8, 
1907.    See  also  Discipline  XV  Fto  G. 

VII  A.  In  certain  cases  of  military  offenders  convicted  of  larceny  of 
pubhc  property  or  conversion  of  public  funds  (or  who  had  escaped 
irom  mihtary  custody  while  under  charges  for  such  offenses)  and 
applying  for  pardon,  advised  that,  even  if  otherwise  thought  worthy 
01  pardon,  no  pardon  should  be  extended  to  them  except  upon  the 
condition  precedent  of  their  making  good  the  funds  appropriated,  or 
the  property  stolen  or  its  value.  R.  1,  366,  Oct.,  1862;  19,  132,  Nov., 
1865;  26,  648,  July,  1868.  ^ 

VII  B.  In  cases  in  which  military  offenders — such  as  deserters 
from  the  Army  remaining  at  large  or  officers  or  soldiers  who  have 
escaped  from  military  custody  while  in  arrest  or  under  sentence — 
have  applied  from  their  places  of  refuge  for  Executive  pardons,  it  has 
almost  invariably  been  advised  by  the  Judge  Advocate  General  that 
the  application  be  not  entertained  till  the  fugitive  from  justice 
should  return  and  surrender  himself  to  the  military  authorities  to 
stand  his  trial  or  abide  by  his  sentence.  R.  17,  264,  Sept.,  1865; 
19, 132,  Nov.,  1865,  and  690,  Sept.,  1866;  22,  285,  July,  1866;  23, 309, 
Oct.,  1866;  26,  648,  July,  1868;  34,  661,  Dec,  1873;  35,  651,  Aug., 
1874;  38,  607,  652,  May  and  June,  1877;  39,  324  and  326,  Nov.  1877; 
43,  171,  Jan.  1880;  P.  39,  482,  Mar.,  1890;  44,  390,  Dec,  1890; 
C.  3304,  3656,  June  and  Nov.,  1897;  5342,  5733,  5885,  Jan.' and  Feb., 
1899;  9947,  June  13,  1901;  22725,  Feb.  8,  1908;  25069,  Jwm  4,  1909. 


836  PARDON   VIII. 

VIII.  A  pardon  is  not  retroactive.  C.  4678,  July  27,  1898; 
2174,  Mar.  28,  1906.  It  can  not  remit  an  executed  punishment  or 
restore  an  executed  forfeiture  resulting  either  by  operation  of  law  or 
sentence.  It  can  not,  therefore,  restore  the  forfeitures  incident  upon 
desertion.  Further,  it  can  not  modify  past  history,  or  reverse  or 
after  the  facts  of  a  completed  record.  C.  12430,  Apr.  16,  1902; 
20342,  Sept.  7,  1906.  From  and  after  the  taking  effect  of  a  pardon 
the  recipient  is  innocent  in  law  as  to  any  subsequent  contingencies, 
but  the  pardon  does  not  annihilate  the  fact  that  he  was  guilty  of  the 
offense.  The  pardon,  indeed,  proceeds  upon  the  theory  that  the 
party  was  guilty  in  fact.  The  asking  for  it  is  an  admission  of  guilt, 
and  the  granting  of  it  is  a  recognition  of  the  fact  of  guilt. ^  Thus 
held  that  the  President  could  not,  by  a  pardon,  remove  the  charge  of 
desertion  from  the  record  of  a  former  soldier  (C.  3794,  Jan.  18,  1898; 
4678,  July  27,  1898)  who  had  long  since  become  a  civilian  by  reason 
of  the  muster  out  and  nonexistence  of  the  Volunteer  Army  to  which 
he  had  belonged  in  the  Civil  War;  and  that  the  effect  of  his  pardon 
would  not  be  to  give  him  an  honorable  discharge.  A  pardon  would 
not  only  not  remove  a  charge  of  desertion,  but  would,  in  fact,  con- 
firm it  and  constitute  an  additional  reason  for  retaining  it  on  the 
record.  And  a  party  can  not,  by  an  Executive  act,  be  discharged 
from  the  service  unless  he  is  in  the  service.  R.  50,  395,  June,  1886; 
P.  42,  4O6,  Aug.,  1890;  43,  36,  Sept.,  1890;  48,  232,  July,  1891;  C. 
8125,  Apr.,  1897;  3794  and  3810,  Jan.,  1898. 

IX.  A  pardon  can  not  reach  or  remit  a  fully  executed  sentence, 
though  the  same  may  have  been  unjustly  imposed.     R.  8,  228,  Apr. 
1864;  S6,  631,  Aug.,  1875;  G.  2174,  Mar.  28,  1896;  3531,  Sept.  23, 
1897;  4094,  May  7,  1898;  42430,  Apr.  16,  1902;  13879,  Jan.  5,  1903; 
I86I4,  Sept.  22,  1905;  26007,  Bee.  11,  1911.     A  pardon  can  not  of 
course  undo  a  corporal  punishment  fuUy  inflicted  ;2  nor  can  it  avail 
to  restore  to  the  Army  an  officer  legally  separated  therefrom  and 
made  a  civilian  by  a  duly  approved  sentence  of  dismissal,^  or  a 
soldier  by  a  dishonorable  discharge.*    R.  12,  427,  and  I4,  568,  June 
1865;  20,   302,    Jan.,    1866;   4I,   465,    Nov.,  1878;    C.  2049,  2216 
2174,  2809,   Feb.  to  Dec.,  1896;  3810,  Jan.,  1897;  2809  and  3531 
Sept.  23, 1897;  5624,  Jan.,  1899;  12430,  Apr.  16, 1902;  I86I4,  Sept.  22 
1905.     Nor  can  it  restore  a  fine  paid  {R.  16,  305,  June,  1865;  35,  471 
July,  1874)  or  pay  forfeited  ^  {R.  20,  90,  Oct.,  1865;  28,  567,  May 
1869),  when  the  amount  of  the  same  has  once  gone  beyond  the  con- 
trol of  the  Executive  and  been  covered  into  the  United  States  Treas- 
ury and  become  public  funds,®  whatever  may  have  been  the  merits 

1  See^a;  par^e Garland,  4  Wallace,  333;  Knote  v.  U.  S.,  95  U.  S.,  153;  In  re  Spenser, 
5  Sawyer,  195  (Fed.  Cases,  No.  13234). 

2  See  8  Op.  Atty.  Gen.,  284. 

3  12  Op.  Atty.  Gen.,  548;  Ex  parte  Garland,  4  Wallace,  381. 

4  27  Op.  Atty.  Gen.,  179,  Feb.  17,  1909. 

^  Digest  2d  Comp.  Dec,  Vol.  II,  par.  73G,  and  Vol.  Ill,  par.  502.  XII  Comp.  Dec, 
276. 

®  2  Op.  Atty.  Gen.,  330;  XVI,  id.  1.  This,  because  the  same  Constitution  which  con- 
fers the  pardoning  power  contains  a  provision  "  of  equal  efficiency  "  (Art.  1,  sec.  9,  par. 
7),  to  the  effect  that  money  in  the  Public  Treasury  shall  not  be  withdrawn  except  by 
an  appropriation  made  by  law.  VIII,  id.  281.  Compare,  in  this  connection,  Knote  v. 
United  States,  5  Otto,  149,  where  it  was  held  that  an  Executive  pardon  would  not 
entitle  a  party  to  the  proceeds  of  certain  personal  effects,  confiscated  and  sold  by  the 
United  States  as  the  property  of  an  enemy,  after  such  proceeds  had  been  duly  paid  into 
the  Treasury. 


PAEDON   X.  837 

of  the  case.  R.  36,  192,  Jan.,  lS7o;  37,  U5,  Mar.,  1876;  P.  34,  334, 
Auq.,  1889;  C.  3810,  supra.  Otherwise,  however,  where  the  money 
still  remains  in  the  hands  of  a  military  disbursing  officer  or  other 
intermediate  ofRcial.^  R.  16,  676,  Nov.,  1865;  P.  61,  226;  Aug.  29, 
1893;  C.  2174,  ^pr.  8,  1896.  Wliere,  however,  any  portion  of  a 
punishment  remains  unexecuted,  that  portion  may  be  remitted  by  the 
pardoning  power.^  R.  2,  29,  Feb.,  1863.  Congress  alone  can  restore 
pay  fully  forfeited  to  the  tlnited  States,  or  otherwise  pecuniarily 
mdemnify  an  officer  or  soldier  for  the  consequences  or  a  legally 
executed  sentence.  R.  44,  270,  Jan.,  1881;  P.  34,  334,  Aug.,  1889, 
a  11034,  Aug.  17,  1901. 

X.  Held,  that  a  pardon  extended  to  an  enemy  for  his  offense  or 
offenses  as  such,  committed  during  the  wtxr,  did  not  entitle  him  to  be 
paid  rent  for  the  occupation  of  his  real  estate  by  the  United  States 
military  authorities  wliile  occupying  by  the  right  of  conquest  the 
region  of  country  in  which  sucli  estate  was  situated.  R.  22,  5,  16, 
Mar.,  1866. 

XI.  A  party  who  has  been  pardoned  by  the  President  for  a  political 
offense,  or  has  taken  advantage  of  a  proclamation  of  amnesty  (such 
as  that  of  May  29,  1865,  or  Dec.  25,  1868),  is  not  thereby  reheved 
from  amenability  to  trial  and  punishment  for  a  crime,  not  of  a  political 
character,  committed  by  him,  or  from  the  legal  consequences  of  the 
commission  of  such  a  crime.  R.  28,  394,  Feb.,  1869;  29,  35,  June, 
1869. 

XII.  In  cases  of  deserters  from  the  Army  and  from  the  draft,  who, 
during  the  Civil  War,  when  men  of  patriotism  and  honor  were  offering 
their  lives  in  the  service  of  their  country,  took  refuge  in  Canada — 
shirking  a  grave  public  duty  at  a  critical  period  of  national  peril — 
and  remained  there  till  the  close  of  the  war,  when,  in  the  prospect 
of  returnmg  peace,  they  addressed  to  the  Executive  applications 
for  pardon,  advised,  invariably,  that  such  applications  be  denied. 
R.  17,  208,  Aug.,  1865;  20,  44,  Oct.,  1865. 

XIII.  Held,  that  a  soldier  may  be  summarily  discharged  while  in 
confinement  under  sentence,  but  a  summary  discharge  under  such  cir- 
cumstances would  not  only  discharge  him  from  the  service  but  would 
effect  a  remission  of  so  much  of  the  sentence  as  remained  unexecuted 
on  the  date  of  the  discharge.^  P.  53,  409,  May,  1892;  C.  1906  and 
1907,  Bee.  16  and  1912,  Dec.  17,  1895;  3695,  Nov.  30,  1897;  6034, 
Mar.  15,  1899;  11393,  Oct.  17,  1901. 

XIV.  Held  that  the  full  pardon  of  a  deserter  would  not  render  him 
eligible  for  reenlistment  if  his  service  during  his  last  preceding  term 
was  not  honest  and  faithful.*  C.  1883,  Feb.  25,  1899;  1765,  Oct.  4, 
1895;  3125,  Apr.  and  June,  1897;  4513,  July  12,  1898;  4645,  July, 
1898;  5280,  Nov.  11,  1898;  6729,  July  14,  1899;  10994,  Aug.  7,  1901; 
11028,  Aug.  14,  1901;  15288,  Sept.  26,  1903;  16323,  May  11,  1904; 
16151,  Aug.  18,  1904;  17661,  Apr.  17,  1908;  19577,  July  13,  1909; 
26007,  Jan.  3,  1910,  Nov.  28  and  29,  1911,  Dec.  11,  1911. 

1  14  0p.  Atty.  Gen.,  601. 

^  And  the  Executive,  in  the  exercise  of  the  pardoning  power,  "may  pardon  or  remit 
a  portion  of  the  sentence  at  one  time  and  a  different  portion  at  another. ' '  3  Op.  Atty. 
Gen.,  418. 

^  That  a  discharge  by  reason  of  expiration  of  term  of  service  given  pending  the  exe- 
cution of  a  period  of  confinement,  which  extends  beyond  the  term  of  enlistment,  does 
not  have  such  effect,  see  G.  O.,  138,  A.  G.  O.,  1899. 

*See  22  Op.  Atty.  Gen.,  36,  Feb.  9,  1898. 


838  PARDON  XV  A. 

XV.  A.  Held,  that  a  withdrawal  by  a  department  commander  of  a 
pending  charge  against  a  soldier,  upon  his  giving  a  pledge  to  abstain 
in  the  future  from  the  conduct  which  was  the  subject  or  the  charge, 
did  not  operate  as  a  pardon  and  could  not  be  pleaded  as  such.  Had  it 
been  done  by  an  order  of  the  President,  it  could  have  had  no  further 
operation  than  as  a  quasi  conditional  pardon,  leaving  the  charge  legally 
renewable  upon  a  repetition  of  the  offense.     P.  35,  ^23,  Oct.,  1889. 

XV  B.  The  reappointment  to  the  Army  of  a  dismissed  officer  does 
not  operate  as  a  condonation.^  The  dismissal  remains  a  dishonorable 
separation  from  the  service.     C.  2893,  Jan.  1897. 

XV  C  1.  The  promotion  of  an  officer  while  under  charges,  while 
awaiting  trial  by  court-martial,  or  while  awaiting  action  on  the 
sentence  does  not  operate  as  a  constructive  pardon  as  he  is  presumed 
to  be  innocent  until  his  guilt  is  established  by  an  approved  sentence 
of  a  court-martial.  C.  14389,  Aug.  13,  1903;  10600,  July  12,  1901, 
and  Apr.  23,  1902. 

XV  C  2.  The  promotion  of  an  officer  who  is  suffering  punishment 
under  a  duly  approved  sentence,  held  to  be  a  constructive  pardon  if 
the  promotion  is  inconsistent  with  the  further  operation  of  the  sen- 
tence; otherwise  not.^     C.  14389,  Aug.  13,  1903. 

XV  C  2  a.  Where  an  officer  was  sentenced  ''to  retain  his  number 
on  the  lineal  list  of  second  lieutenants  of  infantry  for  three  years," 
held  that  the  sentence,  while  operative,  rendered  him  ineligible  for 

Eromotion  under  the  act  of  October  1,  1890  (26  Stat.  562),  and  that 
is  promotion  pending  the  execution  of  the  sentence  would  operate 
as  a  pardon.     P.  47,  293,  May,  1891. 

XV  C  3.  Should  an  officer  be  selected  for  appointment  to  a  higher 
office  in  the  Army  outside  of  the  line  of  promotion  in  the  branch  of 
the  line  of  the  department  or  stajff  to  which  he  belongs,  held  that  such 

Eromotion  would  be  a  constructive  pardon  of  any  offense  that  he  may 
ave  been  charged  with  committing.     C.  25574,  Apr.  27,  1910. 

XV  C  4.  If  an  officer  is  promoted  on  seniority  alone,  without  any 
other  test,  held  that  it  can  not  be  contended  that  such  advancement 
in  the  operation  of  law  has  the  effect  of  condoning  offenses  committed 
by  the  officer,  i.  e.,  of  a  constructive  pardon.  C.  25574,  Apr.  27, 
1910. 

XV  C  5.  An  officer  was  ordered  summarily  dismissed,  but  before 
he  received  notice  he  was  promoted.  Held,  that  such  promotion 
did  not  operate  as  a  constructive  pardon,  and  that  he  should  be 
dismissed  under  his  new  rank.     R.  6,  558,  Nov.,  1864- 

XV  D  1.  Ordering  or  authorizing  an  officer  or  soldier,  when  under 
sentence,  to  exercise  a  command  or  perform  any  other  duty  incon- 
sistent with  the  continued  execution  of  his  sentence,  has  been  viewed 

^  The  appointment  of  an  officer  to  a  new  commission  is  constructive  pardon  of  a 
previous  sentence  pronounced  but  not  yet  executed  (6  Op.  Atty.  Gen.,  123). 

2  The  opinion  by  the  Attorney  General,  6  Op.,  123,  Sept,  20, 1853,  and  the  statement 
in  Winthrop's  Military  Law  and  Precedents,  2d  Edition,  p.  724,  was  based  on  the  case 
of  an  officer  under  sentence  of  suspension  from  the  naval  service  on  half  pay.  This 
status  deprived  the  officer  of  all  right  to  promotion  while  the  sentence  was  in  force. 
The  promotion  of  the  officer  during  such  time  was  not  required  by  law,  and  as  it  was 
inconsistent  with  the  continued  operation  of  the  sentence  it  could  not  be  otherwise 
construed  than  as  a  constructive  pardon. 


PARDON  XV  D  2.  839 

as  a  constructive  pardon/  but  held,  that  to  allow  an  officer,  while 
under  a  sentence  of  suspension  from  rank,  to  perform  certain  slight 
duties  in  closing  his  accounts  with  the  United  States,  could  not  be 
regarded  as  havmg  any  such  effect.  R.  37,  190,  Dec,  1875;  C.  12292, 
Mar.  29,.  1902. 

XV  D  2.  Held,  that  restoration  to  duty  by  an  authority  inferior 
to  the  authoritjr  which  is  competent  to  order  the  trial  of  the  officer 
or  enlisted  man  is  not  a  constructive  pardon.     C.  24694,  Apr.  8, 1909. 

XV  D  2  a.  A  department  commander  preferred  charges  against 
an  officer  on  his  staff.  Later  he  released  the  officer  from  arrest, 
relieved  him  from  duty  at  department  headquarters,  and  ordered  him 
to  join  his  company.  Upon  the  trial  of  this  officer  ordered  by  the 
division  commander  it  was  contended  in  a  special  plea  that  the  above 
was  an  assignment  to  duty  under  circumstances  which  made  it  a 
constructive  pardon.  The  court  overruled  the  plea.  Held,  that  the 
ruling  of  the  court  was  correct  and  that  the  action  of  the  department 
commander  did  not  constitute  a  constructive  pardon,  u.  20731, 
Mar.  2,  1907. 

XV  D  3.  Held,  that  while  placing  a  soldier  on  a  duty  which  is  incon- 
sistent with  a  sentence  which  he  is  serving  has  been  viewed  as  a 
pardon;  that  such  action  while  the  soldier  is  under  charges  or  await- 
mg  the  result  of  trial  would  not  ordinarily  be  so  construed,  and  that 
if  the  soldier  is  placed  on  duty  by  an  authority  inferior  to  that  which 
ordered  his  trial,  it  would  clearly  not  be  a  constructive  pardon. 
C.  11 868,  Jan.  15,  1902. 

XV  D  4.  The  restoration  of  a  deserter  to  duty  without  trial  is 
practically  a  pardon  before  conviction;  it  is  termed  by  some  military 
writers  ''a  constructive  pardon,"  ^  and  is  a  valid  plea  in  bar  of  trial 
for  desertion.  As  all  pardons  proceed  upon  the  hypothesis  of  the 
legal  guilt  of  the  person  pardoned,  the  restoration  of  a  deserter  to 
duty  without  trial  presupposes  the  commission  of  desertion.  A 
pardon,  like  a  deed,  must,  in  order  to  take  effect,  be  delivered  to, 
and  accepted  by  the  party  to  whom  it  is  granted.  In  military  cases 
the  acceptance  is  commonly  indicated  by  the  soldier  voluntarily  sub- 
mitting to  the  proceeding  or  performing  the  act  required  as  a  con- 
dition. This  acceptance  of,  or  submission  to,  the  restoration  to  duty 
without  trial  is  virtually  a  confession  of  his  guilt;  his  desertion  thus 
becomes  an  established  fact,  as  much  as  if  he  had  been  tried  and 
convicted.3    P  21,  223,  Dec.,  1887. 

XVI  A.  Remission  is  relieving  the  person  from  a  punisTiment  or 
the  unexecuted  portion  of  a  punishment,  but  not  pardoning  the 
offense  as  such,  or  removing  the  disabilities  or  penal  consequences 
attaching  thereto  or  to  the  conviction.*  The  pardoning  of  ''punish- 
ment," authority  for  which  is  vested  in  certain  commanders  by  the 
one  hundred  and  twelfth  article  of  war,  is  remission.  An  offender 
can  be  completely  rehabilitated  only  by  Sifull  pardon  granted  under 

^  Restoration  to  duty  remits  any  unexecuted  portion  of  the  sentence  for  forfeiture. 
(Par.  507,  Digest  of  2d  Comp.  Dec,  Vol.  Ill,  Nov.  20,  1888.) 
See  6  Op.  Atty.  Gen.,  714. 

2  Winthrop,  380. 

3  See  Circ.  4,  A.  G.  0.,  1884;  A.  R.  132  of  1895,  and  143  of  1901. 

*  Compare  Perkins  v.  Stevens,  24  Pick.  277;  Lee  v.  Murphy,  22  Grat.  799;  1  Bish. 
Cr.  L.  sec.  763;  2  Opins.  Atty.  Gen.  329;  5  id.  588;  8  id.  283-284. 


840  PAEDON   XVI  A  1. 

the  pardoning  power  of  the  Constitution.  ^  R.  21^.,  679,  July,  1867; 
37,  613,  June,  1876;  57,  89,  Oct.,  1888;  P.  32,  401,  May,  1889. 

XVI  A  1.  Disqualification,  or  incapacity  to  hold  office  under  the 
United  States,  is  a  punishment  certainly  sanctioned  by  precedent  in 
the  military  service.^  Being  a  continuing  punishment,  it  may  of 
course  be  removed  by  a  remission  of  the  same  by  the  pardoning 
power  at  any  time  during  the  life  of  the  party.  R.  31,  24,  Nov., 
1870;  41,  158,  Mar.,  1878;  42,  636,  May,  1880. 

XVI  B.  After  a  sentence  is  once  unconditionally  remitted,  it  can 
not  be  renewed  or  revived.     An  order  purporting  to  revoke  the 

1  Ex  parte  Garland,  4  Wallace,  380. 

2  It  is  indeed  specifically  authorized  in  two  articles  of  war,  Nos.  6  and  14  (providing 
for  the  punishment  of  false  muster  and  like  offences),  but  is  here  apparently  intended 
not  as  an  independent  punishment  but  as  a  penal  consequence  incident  upon  convic- 
tion and  sentence  of  dismissal.  As  a  distinctive  punishment,  however,  it  has  been 
imposed  in  many  cases,  and  has  apparently  been  regarded  as  a  particularly  suitable 
penalty  in  cases  of  embezzlement  of  public  funds  or  other  fraud  upon  the  Government. 

Instances  of  sentences,  including  (generally  with  dismissal)  the  punishment  of 
disqualification,  are  to  be  found  in  the  following  orders  of  the  War  Department  (or 
Hdqrs.  of  Army),  published  before  the  Civil  War,  the  instances  being  none  of  them 
cases  of  conviction  of  false  muster:  G.  O.  of  April  2,  1818;  do.  of  Sept.  25,  1819;  do. 
71  of  1829;  do.  15  of  1860.  The  infrequency  of  this  punishment  in  the  early  orders 
may  perhaps  be  owing  in  part  to  the  fact  that  it  was  considered  that  "cashiering" — a 
sentence  often  then  adjudged — involved  disqualification.  Similar  instances  of  the 
same  punishment  occur  in  the  following  orders  issued  from  the  War  Department 
during  and  since  the  Civil  War:  G.  0. 18,  94,  159,  184,  242,  249,  332,  389,  of  1863;  do. 
36,  51,  69,  of  1864;  G.  C.  M.  O.  175,  251,  277,  369,  395,  404,  of  1864;  do.  6,  46,  85,  125, 
201,  205,  219,  232,  238,  260,  270,  315,  365,  397,  432,  541,  565,  584,  602,  649,  of  1865; 
do.  22,  68,  82,  89,  111,  161,  181,  of  1866;  do.  21,  52,  56,  62,  89,  91,  98,  of  1867;  do.  2,  58, 
of  1868;  do.  44  of  1869;  do.  14,  15,  of  1870.  Instances  of  this  punishment  have  also 
been  noted  in  the  following  orders  issued  from  the  military  departments,  armies, 
&c.:  G.  O.  60,  64,  76,  86,  89,  99,  106,  of  1863;  do.  2,  4,  20,  24,  28,  30,  32,  51,  of  1864; 
do.  9,  12,  of  1865— Army  of  the  Potomac.  G.  O.  18,  81,  of  1864;  do.  11  of  1865— Dept. 
of  the  East.  G.  O.  81  of  1864— Dept.  of  Pennsylvania.  G.  O.  96  of  1864;  do.  23,  27,  of 
1865— Middle  Department.  G.  O.  22  of  1865— Middle  Military  Division.  G.  O.  15  of 
1863;  do.  30  of  1865— Dept.  of  West  Virginia.  G.  O.  34,  113,  175,  of  1864;  do.  49,  82, 
of  1865— Dept.  of  Virginia  and  North  Carolina.  G.  O.  32,  33,  of  1864— Dept.  of  the 
Ohio.  G.  O.  19  of  1865— Dept.  of  Kentucky.  G.  O.  17,  21,  33,  of  1863— Dept.  of  the 
Tennessee.  G.  O.  3  of  1863;  do.  6,  22,  of  1864— Dept.  and  Army  of  the  Tennessee. 
G.  O.  14  of  1865;  do.  5  of  1866— Dept.  of  Tennessee.  G.  O.  21  of  1863;  do.  24  of  1864; 
do.  77,  112,  of  1865— Dept.  of  the  Missouri.  G.  O.  8  of  1866— Dept.  of  Florida.  G.  O. 
67  of  1863;  do.  74,  of  1865— Dept.  of  the  Gulf.  G.  O.  55  of  1864— Mil.  Div.  of  W. 
Mississippi.  G.  O.  87  of  1867 — Second  Mil.  Dist.  This  punishment,  however,  has, 
since  1870,  been  discontinued  in  the  practice  of  our  courts  martial,  and  this  discon- 
tinuance is  to  be  traced  to  the  ruling  of  the  Attorney  General  in  an  opinion  addressed 
to  the  Secretary  of  the  Navy  in  1868  (12  Opins.  528)  to  the  effect  that  a  sentence 
of  a  naval  court  martial  by  which  a  contractor  for  naval  supplies  was  excluded  from 
future  dealings  for  such  supplies  with  the  Government,  was  illegal;  sentences  of 
disability  in  general  being  further  held  to  be  "not  in  accordance  with  the  custom  of 
the  service  except  where  expressly  authorized  by  law."  This  ruling  was  applied  to 
a  military  case  in  G.  C.  M.  O.  22  (as  also  in  do.  57,)  to  War  Dept.,  &c.,  of  1870,  and 
the  punishment  of  disqualification  imposed  upon  an  officer  disapproved  as  unauthor- 
ized. But  whatever  may  have  been  the  usage  of  naval  courts  martial,  the  very 
numerous  precedents  of  cases  in  which  such  punishment  had  been  adjudged  by 
military  courts  for  a  great  variety  of  offences,  were,  it  is  considered,  quite  sufficient 
to  have  established  that  this  penalty  was  sanctioned  by  custom  in  the  Army.  In 
some  instances  the  disqualification,  as  adjudged,  has  extended  to  the  holding  of 
public  office  in  general;  in  others  it  has  been  confined  to  the  holding  of  military 
office.  But,  while  the  disqualification  for  military  office  is  less  objectionable  than  the 
more  general  form,  it  may  well  be  doubted  whether  this  species  of  punishment, 
inasmuch  as  it  assumes  in  effect  to  inhibit  the  exercise  by  the  Executive  of  the 
appointing  power,  is  within  the  authority  of  a  court  martial.  As  will  be  perceived 
from  the  above,  this  punishment  has  been  discontinued  in  our  service,  but  on  another 
and  less  tenable  ground. 


PAKDON — PARTIES  TO  CONTRACTS.  841 

order  promulgating  the  remission,  would  be  void  and  of  no  effect. 
C.  2170,  Apr.,  1896. 

XVI  C.  Where  a  soldier,  prior  to  his  entering  upon  a  term  of 
imprisonment  under  sentence,  has  been  held  confined  in  the  guard- 
house, it  has  been  a  practice  of  the  War  Department  to  credit  him 
with  so  man^r  days  on  his  term  as  he  was  so  confined  in  excess  of  30 
days.  This  is  a  form  of  remission  of  so  many  days  of  the  term 
imposed  by  his  sentence.  R.  11,  380,  Jan.,  1865;  28,  340,  482,  Jan. 
and  Apr.,  1869;  P.  57,  371,  Jan.,  1893;  62,  368,  Nov.,  1893. 

XVI  D.  The  discharge,  bv  executive  authority  under  the  fourth 
article  of  war,  of  a  soldier  whose  enlistment  has  not  expired  but  who 
is  undergoing  a  term  of  imprisonment  imposed  upon  him  by  a  sen- 
tence of  court-martial  (whicli  did  not  also  include  the  penalty  of  dis- 
honorable discharge,  or  imposed  it  to  take  effect  at  the  end  of  the 
imprisonment),  lield  to  operate  not  merely  as  a  discharge  of  the 
soldier  from  his  enlistment  but  as  a  remission  of  the  unexecuted  term 
of  his  confinement  and  to  entitle  him  to  be  set  at  liberty.*  R.  31, 
556,  Aug.,  1871;  41,  350,  July,  1878;  C.  11393,  Oct.  17,  1901;  19972, 
June  27, 1906;  21722,  July  9, 1907. 

XVI  E.  A  sentence  to  confinement  with  forfeiture  of  pay  imposes 
two  distinct  and  independent  punishments.  Held  that  the  remis- 
sion of  an  unexecuted  portion  of  one  would  not  affect  the  other.^ 
R.  38,  329,  Oct.,  1876;  P.  45,  287,  Feb.,  1891;  C.  1780,  Oct.,  1895; 
19145,  Feb.  9,  1906. 

CROSS   REFERENCE. 

See  Articles  of  War  CXII  A  to  E. 

After  execution  of  sentence See  Discipline  XV  I  2  a. 

Before  conviction See  Discipline  XVII  A  4  g  (G). 

Can  not  create  office See  Office  II  A  1 . 

Deserter See  Desertion  XV  A  to  F;  X  A;  XII  A  1; 

XIV  B. 
Enlistment  I  D  3  c"  (7). 

Eligibility  for  enlistment  not  restored See  Enlistment  I  B  3  a;  D  3  c  (5);  (6); 

(8);  (9);  (10). 

PARENT. 

Applies  for  discharge  of  minor See  Discharge  XII  A. 

Dependency  of. See  Discipline  XV  F  8. 

Right  over  minor See  Desertion  III  G. 

Enlistment  I  B  1  b  to  2. 

PAROLE. 

By  civil  courts See  Discipline  I  E  3. 

Prisoner  of  war See  War  I  C  11  d  (2)  to  (3). 

Violation  of. See  Discipline  II  D  1  c. 

War  I  C  11  b;  c  (4). 

PARTIES   TO   CONTRACTS. 

See  Contracts  I  to  II. 

^  This  opinion  was  approved  and  published  in  Circular  letter  from  the  War  Depart- 
ment to  department  commanders,  Aug.  12,  1871.  And  note  an  instance  of  its  appli- 
cation— to  the  cases  of  twenty-three  prisoners — in  G.  C.  M.  O.  118,  Dept.  of  the  Mis- 
souri, 1871. 

2  Circular  No.  63,  War  Department,  1906. 


842  PAKTISANS — PATENT  I. 

PAKTISANS. 

Trial  of,  by  civil  courts See  War  I  C  11  c  (3). 

PARTNERSHIP. 

See  Contracts  XXX;  XXXI. 

Bonds  by See  Bonds  I  R. 

One  partner  guarantor  for  other See  Bonds  I  D. 

Signature  by See  Contracts  LVI. 

PASS. 

See  Absence. 

Injury  v)hile  on See  Desertion  XVI  C  5. 

Gratuity  I  A  3. 

Line  of  duty  status See  Gratuity  I  A  5  a. 

Medical  attendance  on See  Claims  VIII. 

PATENT. 

I.  GRANT  OF  LETTERS  PATENT  IS  PRIMA  FACIE  EVIDENCE  THAT 

PATENTEE  WAS  INVENTOR Page  842. 

n.  ROYALTY. 

A.  Is  a  Legal  Lien  Upon  a  Patented  Article. 
m.  ASSIGNMENT  OF  PATENTED  RIGHT  TO  UNITED  STATES. 

A.  Does  Not  Preclude  Assignment  to  Another  Country Page  843. 

IV.  QUESTION  OF  INFRINGEMENT. 

A.  United  States  Requires  Bond  for  Indemnification  Against  Loss. 
V.  INVENTOR  CAN  NOT  SERVE  ON  BOARD  WHICH  IS  CONSIDERING 

HIS  INVENTION. 
VI.  INVENTION  NOT  YET  PATENTED. 

A.  Is  A  Property  Right. 
Vn.  PATENT  BY  OFFICER. 

A.  Without  Fee,  Government  Does  Not  Pay  Royalty Page  844- 

B.  Rule  as  to  Use  of,  by  Government. 

C.  Assignment  of  Patent. 

I.  The  presumption  in  favor  of  the  validity  of  a  patent,  arising 
from  the  action  or  the  authorities  in  granting  it,  can  be  overcome  only 
by  reliable  and  certain  proof.^  The  grant  of  letters  patent  is  prima 
facie  evidence  that  the  patentee  was  the  first  inventor  of  the  device 
described  in  the  letters,  and  of  its  novelty.^  So,  held  that  a  claim  by  a 
patentee  for  a  reasonable  royalty  for  the  use  of  his  patent  by  the 
IJnited  States  was  not  impugned  by  the  affidavits  of  a  third  party  to 
the  effect  that  he  was  the  real  inventor,  when  such  party  had  taken  no 
action  to  contest  the  issuance  of  the  patent  nor  resorted  to  the  courts 
for  his  legal  remedies.  P.  S3,  4^6,  May,  1892.  The  use  of  a  patent 
with  the  knowledge  and  consent  of  the  patentee  is  an  implied  promise 
or  agreement  to  pay  for  the  same.  C.  725,  Dec.,  1894;  ^107,  Mar. 
23,  1899;  8321,  Aug.  20,  1900;  22877,  Mar.  10,  1908. 

II  A.  An  existing  royalty  on  a  patented  article  is  in  the  nature  of  a 
legal  lien  upon  it,  to  be  paid  off  oef ore  it  can  be  safely  used,  and  is 
also  an  element  properl}^  entering  into  the  price  to  be  paid  for  it,  if 
purchased.     The  article  is  in  law  sold  subject  to  tliis  claim.     So,  held 

^  Osborne  v.  Glazier,  31  Fed.  Rep.  402. 
2  Cantrell  v.  Wallick,  117  U.  S.  695. 


PATENT   III  A.  843 

that  the  United  States,  in  purchasing  a  patented  article,  as  being 
necessary  to  the  due  prosecution  of  a  certain  work  provided  to  be  done 
by  an  appropriation  act  should  justly  pay  a  price  estimated  by  the 
intrinsic  value  of  the  article,  augmented  by  the  probable  amount  of 
the  royalties  likely  to  accrue  as  income.  P.  44}  ^^^)  Dec,  1890;  G. 
8321,  Aug.  20,  1900;  17647,  Mar.  10,1905. 

III  A.  The  assignment  to  the  United  States  of  a  patent  right, 
for  use  in  the  public  service/  does  not  preclude  the  assignor  from  also 
assigning  the  right  to  a  foreign  government,  provided  the  original 
assignment  were  not  absolute  in  its  terms.  A  sale  of  patent  right 
for  use  in  one  district  is  not  incompatible  with  a  sale  for  use  in  another, 
such  sales  being  in  the  nature  of  independent  licenses.  But,  as  a 
general  rule,  the  United  States  should  accept  in  such  a  case  nothing 
short  of  an  absolute  assignment.     P,  64,  214,  June,  1892. 

IV  A.  Where  the  lowest  bidder  for  a  dredging  contract  proposed 
to  use  a  dredging  macliine  which  had  become  the  subject  of  a  suit 
against  him  for  infringement  of  a  patent,  advised  that  if  deemed 
proper  to  accept  the  bid  and  enter  mto  a  contract,  a  clause  should 
be  required  to  the  effect  that  in  the  event  of  any  legal  proceedings 
by  other  parties  against  the  United  States  or  any  or  its  officers  or 
agents  for  the  infringement  of  any  patent  or  claimed  patent,  during 
the  execution  of  the  work,  or  afterwards,  the  contractor  shall  hold  the 
United  States  harmless  and  refund  to  it  all  expenses,  damages  and 
outlays  of  every  kind  it  may  be  subjected  to  on  account  of  the  same. 
And  that  if  said  proceedings  tend  to  create  delay  in  the  execution 
of  the  work,  the  United  States  shall  have  the  right  to  immediately 
employ  other  parties  to  complete  the  same,  the  contractor  to  reim- 
burse the  United  States  for  any  extra  amount  it  may  have  to  pay 
for  such  completion  over  and  above  the  amount  which  the  contractor 
would  have  been  entitled  to  for  the  same  work.  C.  725,  Dec,  1894; 
4558,  July,  1898;  23546,  July  3,  1908. 

V.  While  it  is  clearly  a  violation  of  law  (act  of  Feb.  18,  1893,  27 
Stat.  461)  for  the  inventor  of  a  device  (range  finder)  considered  and 
adopted  by  the  Board  of  Ordnance  and  Fortification  'Ho  be  a  mem- 
ber or  serve  on  said  board, ''  the  act  does  not,  where  he  has  in  fact 
so  served,  prohibit  the  purchase  of  the  instrument  invented  by  him. 
It  merely  affects  his  ehgibifity  for  membership  of  or  service  on  the 
board.     C.  6941,  Aug.,  1899. 

VI  A.  An  invention  is  property  though  it  be  not  patented,  and  an 
injunction  wiU  be  granted  to  restrain  an  infringement  though  the 
patent  has  been  merely  applied  for.  Thus  it  is  safer  for  the  United 
States  not  to  purchase  the  right  to  use  an  invented  article  from  any 
person  other  than  the  inventor,  since  a  fiability  to  the  latter  might 
thus  attach.2  P.  43,  264,  Oct.,  1890.  Held  that,  should  the  Govern- 
ment make  a  purchase — from  a  person  other  than  the  inventor  but 
claiming  to  be  such — of  telephones,  the  sale  of  which  had  been  en- 
joined by  the  real  patentee,  tne  United  States  would  be  fiable  to  him 
m  damages,  whether  or  not  the  fact  of  infringement  or  illegal  sale 
was  actually  known  at  the  time  of  the  purchase.     P.  57,  297,  Jan., 

^  See  act  of  June  25,  1910  (36  Stat.  851)  under  which  the  United  States  is  entitled 
to  free  use  of  any  patent  by  any  one  in  its  employment  or  service. 
2  See  James  v.  Campbell,  104  U.  S.,  356. 


844  PATENT  VTI  A. 

1893.  The  Government  becomes  a  tort-feasor  in  permitting  the 
use  in  its  service  of  an  infringed  patent.^     C.  725,  Dec,  1894. 

VII  A.  Provision  for  the  issuance  of  a  patent  to  persons  who  in- 
vent or  discover  ''any  new  and  useful  art,  machine,  manufacture 
or  composition  of  matter,  or  any  new  and  useful  improvement  thereof 
not  known  or  used  by  others  in  this  country,  and  not  patented  or 
described  in  any  printed  pubhcation  in  this  or  any  foreign  country," 
etc.,  is  made  by  law.  Held  that,  under  the  act  of  March  3,  1883  (22 
Stat.  625),  an  officer  of  the  army  is  entitled  to  the  issuance  of  a  patent 
without  any  fee  for  an  invention  of  the  class  enumerated  above  and 
if  so  patented  the  United  States  is  entitled  to  use  the  patent  without 
payment  of  royalty .^     G.  12517,  Apr.  28,  1902. 

VII  B.  It  is  well  settled  by  decisions  of  the  United  States  courts 
that  where  a  person  in  the  employ  of  the  United  States,  using  Govern-' 
ment  time  and  Government  funds  for  the  purpose  and  in  the  line  of 
his  duty,  makes  an  invention  and  takes  out  a  patent  on  the  same,  the 
Government  has  an  implied  license  to  use  the  invention,  with  an 
unrestricted  right  to  manufacture  it  or  have  it  manufactured  for  its 
use ;  but  that  where  a  person  in  Grovernment  employ,  and  not  specific- 
ally employed  for  the  purpose  makes  an  invention  he  is  entitled  to  the 
benefits  of  the  same.^  Held,  therefore,  that  an  ofhcer  was  entitled  to 
compensation  for  the  use  by  the  United  States  of  his  patented  pneu- 
matic gun.  P.  31,  106,  Mar.  15,  1889.  AJso  held,  with  respect  to 
certain  portable  field  ovens  invented  by  officers  and  soldiers  in  the 
line  of  their  duty  and  at  the  cost  of  the  United  States,  that  the  United 
States  had  the  right  to  manufacture  or  have  manufactured  for  its  use 
the  patented  articles.  C.  25188,  June  25, 1909,  July  29, 1909,  and  Oct. 
31,  1910.  Similarly  held,  with  respect  to  a  process  for  forage  rations 
{id.,  Dec.  28, 1910) ;  with  respect  to  machinery  for  operating  lock  gates 
of  the  Isthmian  Canal  (id.,  Apr.  21,  1911);  with  respect  to  a  blast 
meter  (id.,  June  28, 1911);  and  with  respect  to  a  device  for  an  oscillat- 
ing tool  box  (id.,  Nov.  27,  1911). 

VII  C.  Held  that  the  act  of  June  25,  1910  (36  Stat.  851),  gives  to  a 
bona  fide  patentee  a  right  to  recover  reasonable  compensation  for  an 
article  patented  by  him  which  is  used  by  the  United  States,  but 
enables  the  United  States  to  avaU  itself  of  any  and  all  defenses,  general 
or  special,  which  might  be  pleaded  by  a  defendant  in  an  action  for 
infringement;  it  also  provides  that  the  benefits  of  this  act  shall  not 
inure  to  any  patentee  who,  at  the  time  of  making  his  claim,  is  in  the 
employment  or  service  of  the  United  States  and,  what  is  more  impor- 
tant, makes  the  act  applicable  to  the  assignee  of  any  such  patentee. 
C.  27038,  July  15,  1910. 

1  See  Schillinger  v.  U.  S.,  155  U.  S.,  163. 

2  See  Act  of  June  25,  1910  (36  Stat.  851). 

3  See  U.  S.  V.  Burns  (12  Wal.,  246);  Solomons  v.  U.  S.  (21  Ct.  Cls.,  479-83,  and  22 
id.,  335);  Solomons  v.  U.  S.  (137  U.  S.,  346);  Gill  v.  U.  S.  (160  U.  S.,  426);  Gill  v. 
U.  S.  (25  Ct.  Cls.,  415);  McAleer  v.  U.  S.  (150  U.  S.,  424);  and  Fager  v.  U.  S.  (35  Ct. 
Cls.,  556-568).  See,  however,  act  of  June  25,  1910  (36  Stat.  851),  which  authorizes 
a  suit  against  the  United  States  for  infringement  of  patent  rights  with  the  proviso  that 
the  act  shall  not  "apply  to  any  device  discovered  or  invented"  by  an  employee  of  the 
United  States,  "durmg  the  time  of  his  employment  or  service."  While  no  suit  for 
infringement  can  be  brought  under  the  statute  in  respect  to  such  device,  the  statute 
stops  short  of  changing  the  law  as  above  stated. 


PATENT — PAY  AND  ALLOWANCES:   SYNOPSIS.  845 

CROSS    REFERENCE. 

Infringement  of '. See  Claims  II. 

PAY. 

See  Pay  and  allowances. 

Absaice  without  leave See  Absence  II  A  2. 

Armed  civilian  employees  in  Philippine 

Islands See  Insignia  op  merit  III  B  3. 

Board  of  officers  on  damaged  property See  Militia  XI  I. 

Cadet  onfarlongh See  Army  I  D  2  a.   • 

Can  not  be  attached See  Army  I  C  2. 

Can  not  he  stopped  to  pay  private  debts See  Private  debts  II. 

Certificate  of  merit See  Insignia  of  merit  II  D. 

Chief  of  Philippine  Constabulary See  Command  I  C. 

Deposit  of See  Command  VI  B. 

Engineer  officer See  Navigable  waters  X  B  1  a. 

Extra See  Civilian  employees  X  to  XI. 

Extra  duty See  Discipline  IV  B  2  a. 

Extra  to  mounted  ojjicers See  Militia  XI  F. 

Extra  while  on  detail See  Communications  I  C. 

Forfeiture  of See  Discipline  XII  B  3  e  (1)  to  (5). 

Joint  encampment See  Militia  VI  B  2  d. 

Longevity See  Militia  XI  G. 

Longevity  of  retired  officers See  Retirement  I  L  I. 

Militia See  Mililia  XI  to  XII. 

Muster  for,  is  not  muster-in See  Volunteer  Army  II  A  2. 

Of  deserters See  Desertion  V  D  to  E  6;  XIV  A  to  F. 

Of  discharged  soldier See  Articles  of  War  LX  E  4. 

On  furlough See  Absence  I  C  4  h. 

On  leave See  Absence  I  B  1  g  (2);  1  m  (1). 

Reduced  by  law See  Enlistment  I  A  5. 

Retired  soldier See  Retirement  II  B  5;  C  to  D. 

Seaman See  Civilian  employees  XV  A. 

Stoppage See  Civilian  employees  II  to  III. 

Government  agencies  I  B,  C 

Suspension  from See  Discipline  XII  B  3  f  (3)  {d^ 

Suspension  of  cadet  without See  Army  I  D  3  b  (1). 

Volunteers  previous  to  muster-in See  Office  V  A  5  a  (2). 

While  m  hands  of  civil  authorities See  Command  V  A  2  c 

PAY  ACCOUNT. 

Not  commercial  paper See  Pay  and  allowances  I  B  4. 

Not  signed  in  blank » See  Pay  and  allowances  IBS. 

PAY  AND   ALLOWANCES. 

I.  PAY. 

A.  In  General. 

1.  Right  to,  by  officers  and  enlisted  men. 

a.  Begins  and  ends  with  period  of  legal  service Page  849 

b.  Can  be  overthrown  only  by  operation  of  law Page  850 

c.  Not  affected  by  status  of  arrest. 

d.  Foreign-service  pay.     {See*Pay  Manual.) 
B.  Officers'  Pay. 

1.  Rule  as  to  when  right  to,  begins. 

■a.  Appointment  with  back  pay  requires  act  of  Congress. 

2.  WTiile  on  "waiting  orders." 

3.  Pay  accounts  should  not  be  receipted  in  blank Page  851 

4.  Pay  account  is  not  commercial  paper. 

5.  May  be  paid  to  guardian. 

a.  Even  to  a  wife. 


846  PAY  AND  allowances:  synopsis. 

I.  PAY— Continued. 

B.  Officers'  Pay — Continued. 

6.  Longevity  pay.     {See  Pay  Manual). 

a.  Service  as  medical  cadet  counts. 

7.  Extra  pay  when  mounted,  etc. 

a.  Duty  must  require  officer  to  be  mounted Page  852 

(1)  Assistant  quartermaster  at  quartermaster  depot. 

b.  Mount  must  be  "suitable." 

C.  Enlisted  Men's  Pay. 

1.  Title  passes  to  soldier  upon  receipt  of  pay. 

2.  Not  entitled  to  pay  while  absent  without  leave,  and,  if  deserter,  until 

restored  to  duty Page  853 

3.  No  pay  while  in  hands  of  civil  courts,  if  convicted Page  854 

4.  Payment  may  be  made  to  guardian. 

5.  Continuous-service  pay. 

a.  In  counting   continuous-service   deduct  all    absence  without 

leave. 

b.  Continuous  service  can  not  be  carried  back  to  a  date. 

(1)  Preceding  a  discharge  without  honor. 

(2)  Preceding  a  dishonorable  discharge. 

c.  Philippine  Scouts  not  entitled  to  reenlistment  bonus.  Page  855 

6.  Extra-duty  pay. 

a.  Paid  only  for  labor  which  may  be  legitimately  performed  in 

military  service  by  soldier. 

b.  For  constant  labor  for  a  period  of  not  less  than  10  days. 

(1)  To  clerks  at  post  and  regimental  headquarters. 

(2)  To  school-teacher  at  arsenal. 

(3)  To  enlisted  men  of  staff  department  for  duty  in  other 

departments. 

(4)  To  cooks  not  regularly  appointed Page  856 

(5)  To  messenger  at  post  laundry. 

c.  Not  paid  in  time  of  war. 

(1)  Except  from  company,  bakery,  or  post-exchange  funds, 

d.  Paid  out  of  special  appropriations. 

7.  Deposits. 

a.  Money  deposited  to  secure  a  discharge  is  unconditional  like 
any  other  deposit. 
(1)  And  can  not  be  refunded Page  857 

8.  Allotments. 

a.  Voluntary. 
n.  ALLOWANCES. 
A.  In  General. 

1.  Heat  and  light. 

a.  Furnished  only  to  buildings  used  by  officer  or  enlisted  man  at 

his  post  of  duty. 

b.  No  limit  fixed  on  cost  of  heat  and  light  to  Government. 

c.  Allowance  to  officers. 

(1)  Right  accrues  after  assignment  to  quarters  or  allowance 

of  commutation. 

(2)  Heat  and  light  is  an  allowance  in  kind  and  can  not  be 

commuted  into  money Page  858 

(3)  Officer  drawing  commutation  of  quarters  does  not  lose 

right  to  heat  and  light  for  temporary  absence  in  hos- 
pital for  treatment. 


PAY  AND  ALLOWANCES;    SYNOPSIS.  847 

ALLOWANCES— Continued . 
A.  In  General — Continued. 

1.  Heat  and  light — Continued, 

c.  Allowance  to  officers — Continued . 

(4)  Chief  and  the  assistant  chiefs  of  Constabulary  entitled 

to  allowance  of  heat  and  light  on  their  actual  rank  in 
the  Army  only. 

(5)  Right  to  increased  allowance  accrues  at  date  of  promo- 

tion. 

(6)  An  officer  who  retains  quarters  at  a  post  or  draws  commu- 

tation of  quarters  while  on  leave  of  absence  is  entitled 
to  his  allowance  of  heat  and  light. 

d.  Allowance  to  enlisted  men. 

(1)  In  leasing  quarters  for  enlisted  men  lease  should  stipu- 

late that  heat  and  light  will  be  furnished. 

(2)  Right  to  heat  and  light  not  affected  because  enlisted  man 

draws  commutation  of  quarters Page  859. 

(3)  EnUsted  men  living  outside  of  reservation  not  entitled 

to  heat  and  light. 

e.  Not  to  be  sold  to  others  than  officers  and  enlisted  men. 

2.  Allowance  to  officer. 

a.  Transportation. 

(1)  For  himself.     {See  Mileage  in  Pay  Manual  and  Army 

Regulations,  and   Transportation  of  officer  in  Army 
Regulations.) 

(2)  Of  horse. 

(a)  When  changing  station. 

[1]  Reimbursement  of  expense  of. 
(6)  From  other  place  than  last  station. 

(3)  Of  ba^age.     {See  Army  Regulations,  Transportation  of 

the  Army — Baggage.) 

b.  Quarters.     {See  Army  Regulations.) 

(1)  Commutation  of  quarters Page  860. 

(2)  Use  of  quarters  by  officer's  family  while  officer  is  on 

duty  that  carries  commutation. 

(3)  Stops  when  traveling  on  duty Page  861 . 

c.  Interment,  expense  of. 

•        (1)  Not  allowed  if  officer  on  sick  leave. 

(2)  Temporary  interment  does  not  preclude  permanent 
interment  elsewhere. 
d..  Forage. 

(1)  A  horse  must  be  owned  and  actually  kept. 

(a)  Act  of  May  11,  1908,  does  not  change  that  fact. 
(6)  Duty  requires  a  mount Page  862. 

(2)  Ficticious  assumption  of  ownership  does  not  carry  right 

to  forage. 

3.  To  enlisted  men. 

a.  Clothing  allowance. 

(1)  Not  a  part  of  pay. 

(2)  Not  credited  when  pay  is  not  earned. 

(3)  Forfeiture.     {See  Pay  and  Allowances  III  C  to  D.) 

(a)  Forfeited  by  sentence  of  court-martial.  Page86S. 

(4)  Clothing  issued  in  kind. 

(a)  Does  not  become  private  property. 


848  PAY  AND  allowances:  synopsis. 

n.  ALLOWANCES— Continued. 
A.  Ill  General — Continued. 

3.  To  enlisted  men — Continued. 

a.  Clothing  allowance — Continued. 

(4)  Clothing  issued  in  kind — Continued. 

(6)  When  discharged  without  honor  for  fraudulent 
enlistment  soldier  not  permitted  to  take  cloth- 
ing drawn  in  excess  of  allowance  with  him, 

(c)  Upon  return  from  desertion  a  soldier  can  not  claim 

clothing  left  behind  at  desertion  as  private 
property. 

(d)  Gratuitous  issues. 

[1]  To  replace  clothing  destroyed. 

[a]  In  campaign. 

[b]  To  prevent  contagion Page  864 

[c]  By  fire. 

(e)  To  dishonorably  discharged  soldier. 

[1]  Not  authorized  unless  sentenced  to  con- 
finement. 

b.  Rations.     (See  Army  Regulations  and  Subsistence  Manual.) 

(1)  Commutation. 

(a)  Rates  of  are  fixed  by  Secretary  of  War. 
(6)  When  traveling. 

[1]  Limited  to  the  trip. 
in.  DEPRIVATION  OF  PAY  AND  ALLOWANCES. 

A.  Of  Officer. 

1.  Can  not  be  done  by  summary  dismissal Page  865 

a.  Or  by  nunc  pro  tunc  summary  dismissal. 

2.  Can  not  be  done  by  implication. 

a.  Case  of  suspension  from  service. 

B.  Stoppage. 

1.  In  connection  with  arrest  as  deserter.     (See  Desertion.) 

2.  May  be  collected  in  monthly  amounts. 

3.  Overpayments  to  employees  may  be  stopped  against  the  dis- 

bursing ofiicer. 

4.  Can  not  be  stopped  to  satisfy  private  claims Page  866 

5.  Is  a  "charge  on  account"  to  make  good  a  loss. 

6.  Can  not  be  made  to  reimburse  a  personal  indebtedness. 

a.  Which  grows  out  of  an  incorrect  final  statement Page  867 

7.  May  be  made  to  reimburse  company  fund. 

a.  Even  in  paying  account  of  deceased  officer. 

C.  Forfeiture. 

1.  By  sentence  of  court-martial. 

a.  Of  pay  earned. 

(1)  If  sentenced  to  dishonorable  discharge. 

(a)  Forfeits  pay  due  at  discharge. 

[1]  If  discharge  remitted,  forfeits  pay  due  at 

date  of  receipt  of  order  at  post. 
[2]  If  paid  before  discharge,  title  to  money 
paid  passes Page  868 

(2)  Applies  only  to  current  enlistment. 

b.  Of  pay  to  be  earned. 

(1)  Sentence  operates  from  date  of  promulgation. 


PAY  AND   ALLOWANCES   I  A  1  a.  849 

m.  DEPRIVATION  OF  PAY  AND  ALLOWANCES— Continued . 

C.  Forfeiture — Continued. 

1.  By  sentence  of  court-martial — Continued. 

c.  Of  pay  and  allowances  due  and  to  become  due. 

(1)  Forfeits  commutation  of  quarters,  fuel,  and  rations. 

d.  Of  "all  pay  and  allowances"  for  a  certain  period. 

(1)  Necessary  clothing  and  subsistence  may  be  issued. 

e.  Destruction  of  record  before  approval. 

(1)  Forfeitures  nullified. 
i.  Sentenced  to  dishonorable  discharge. 

(1)  Forfeits  travel  pay. 
g.  Money  forfeited  returns  to  the  Treasury. 

(1)  There  credited  to  the  pay  of  the  Army  even  if  accrues 
from  forfeitures  in  volunteers Page  869 

2.  Forfeitures  otherwise  than  by  sentence. 

a.  Clothing  allowance  on  discharge  without  honor  for  fraudulent 

enlistment. 

b.  Pay  and  allowances  while  absent  without  leave. 

c.  Travel  allowances. 

(1)  When  discharged  without  honor  for  fraudulent  enlist- 

ment. 

(2)  When  discharged  without  honor  on  account  of  convic- 

tion by  civil  court. 

(3)  When  discharged  by  way  of  favor. 

(4)  WTien  dishonorably  discharged. 

d.  Public  property  lost  charged  to  soldier Page  870 

D.  Fines. 

1.  Accrue  only  by  sentence  of  court-martial. 

2.  Accrue  to  United  States  only.  ^ 

3.  Distinguished  from  stoppage. 

E.  Remission  of  Forfeiture. 

1.  Operates  only  on  pay  not  due. 

F.  Commutation  of  Dismissal  of  Cadet  to  Suspension. 

1.  Does  not  forfeit  pay. 

I  A  1  a.  The  right  to  pay  begins  and  ends  with  the  period  of  legal 
service.  Except  by  special  authority  of  Congress,  an  officer  or  soldier 
can  not  be  paid  for  military  service  rendered  hefore  appointment, 
enlistment,  or  muster  in.  R.  38, 120,  July,  1876.  A  soldier,  however, 
who  by  accident  or  through  some  exigency  of  the  service,  is  held  to 
service  for  a  period  after  the  date  on  which  his  term  of  enlistment 
expired,  is  properly  entitled  to  be  paid  for  such  additional  period. 
R.  29,  424,^  Nov.,  1869;  38,  662,  July,  1877.  So,  a  soldier,  detained 
in  the  service,  after  his  term  of  enlistment  has  expired,  by  reason  of 
the  pendency  of  proceedings  under  charges  preferred  against  him,  and 
who,  upon  trial  is  acquitted  or  sentenced  to  a  punishment  not  includ- 
ing forfeiture  of  pay,  and  is  thereupon  discharged,  is  entitled  to  be 
paid  up  to  the  date  of  discharge.  R.  21,  4^8^  June,  1866.  An 
officer  separated  from  the  service  by  dismissal,  by  being  ''wholly" 
retired,  or  by  resignation,  is  entitled  to  be  paid  up  to  the  day  on 
which  he  personally  receives  official  notice  of  the  order  or  act  thus 
detaching  him  from  the  Army  and  making  him  a  civilian.  R.  27, 423, 
Mar.,  1869;  30,  549,  Aug.,  1870.  An  officer  or  soldier  can  not 
31106°— 12 54 


850  PAY  AND  ALLOWANCES   I  A  1  b. 

be  dismissed,  discharged,  or  mustered  out  as  of  a  prior  date,  with  the 
effect  of  depriving  him  of  pay  accrued  between  that  date  and  the  date 
of  the  actual  discharge,  etc.^  R.  16,  4O6,  July,  1865;  22,  606,  Dec, 
1866;  C.  17173,  Nov.  17,  1904;  20U6,  Sept.  27,  1906. 

I  A  1  b.  While  he  remains  in  the  military  establishment,  an  officer 
or  soldier,  whether  or  not  actually  performing  military  service,  can  be 
deprived  of  his  legal  pay  only  through  a  duly  adjudged  and  approved 
sentence  of  court  martial,  or  by  the  operation  of  law  under  some  express 
statutory  enactment  or  Army  regulation.^  The  fact  that  an  officer  or 
soldier  is  under  charges,  in  arrest,  or  waiting  sentence,  can  not  (except 
in  so  far  as  his  case  may  be  within  the  application  of  Army  Regula- 
tions, affect  in  any  manner  his  right  to  the  regular  pay  of  his  rank. 
R.  12,  230,  Jan.,  1865;  C.  14787,  June  12,  1903;  16955,  Sept.  29, 
1904. 

I  A  1  c.  The  imposition  of  an  arrest  affects  in  no  manner  the  right 
of  an  officer  or  soldier  to  receive  the  pay  and  allowances  of  his  rank. 
R.  9,  64,  May,  1864;  1^,  2S0, 1865;  13,  386,  Feh.,  1865;  23, 18,  June, 
1866.  Except  in  a  case  of  a  deserter  no  legal  inhibition  exists  to 
paying  a  soldier  while  in  arrest — either  before  trial  or  while  awaiting 
sentence — his  regular  pay  and  emoluments.^  R.  30,  419,  June,  1870; 
C.  14787,  June  12,  1903. 

I  B  1 .  Held,  that  in  the  case  of  an  original  appointment  an  officer's 
pay  begins  to  run  from  the  date  of  acceptance  of  the  appointment, 
and  in  the  case  of  promotion  from  the  date  of  vacancy.*  C.  19425, 
Mar.  17,  1906. 

I  B  1  a.  There  can  be  no  question  as  to  the  power  of  Congress  to 
authorize  the  appointment  of  an  officer  with  both  rank  and  pay  from 
a  back  date.  So  the  President  (except  where  expressly  prohibited 
by  statute)  may,  with  the  concurrence  of  the  Senate,  appoint  an 
officer  with  rank  from  an  earlier  date,  though  not,  except  by  express 
authority  of  Congress,  with  back  pay.^    R.  43,  208,  Feb.,  1880. 

I  B  2.  Held,  that  an  officer  ordered  to  his  home  to  await  orders  did 
not  occupy  the  status  of  an  officer  on  leave  of  absence,  and  was  not, 
therefore,  on  haK  pay  during  the  period  of  thus  awaiting  orders,  but 

1  See  Allstaedt  v.  United  States,  3  Ct.  Cls.,  284;  VII  Comp.  Dec.  (dated  Mar.  16, 
1901).  On  the  other  hand,  where  an  officer  who  has  been  dismissed  is  restored  (by 
the  authority  of  Confess)  to  office  with  the  rank  which  he  had  when  dismissed,  or 
other  rank  of  a  date  prior  to  the  restoration,  he  is  not  thereby  entitled  to  back  pay.  In 
such  cases  in  the  absence  of  any  grant  of  pay  in  the  statute  "the  relation  back  is  for 
rank  only,  not  pay."    4  Ops.  Atty.  Gen.,  603;  5  id.,  101,  132;  9  id.,  137. 

2  See,  to  the  same  effect,  the  opinion  of  the  Attorney  General  in  15  Ops.,  175. 

^  See  A.  R.  986,  1910  ed.,  which  provides  that  a  soldier  awaiting  result  of  trial  will 
not  be  paid  before  the  result  is  known. 

*  In  the  absence  of  a  statute  requiring  adjustment  on  a  different  basis,  pay  of  an 
officer  begins  with  the  date  of  acceptance.  (Dig,  2d  Comp,  Dec,  vol,  3,  sees.  892, 
908,  933.  See,  also,  U.  S.  v.  Flanders,  112  U.  S.,  88;  U.  S.  v.  Eaton,  169  id.,  331; 
16  Op.  Atty.  Gen.,  38;  IV  Comp.  Dec,  496;  VI  id.,  672.)  The  acceptance  may  be 
implied  from  the  entry  upon  the  discharge  of  the  duties  of  the  office  (Am.  &  Eng. 
Ency.  of  Law,  1st  ed.,  vol,  19,  p.  437),  and  such  acceptance  may,  it  seems,  be  of  an 
anticipated  appointment  so  that  it  will  take  effect  and  pay  begin  when  the  appoint- 
ment is  complete  and  prior  to  notice  thereof.  (V  Comp.  Dec,  375;  VII  Comp. 
Dec  511.) 

See  Pay  Manual  496  and  498, 1910  ed. 

s  4  Op.  Atty.  Gen.,  318,  603,  608;  5  id.,  132;  8  id.,  223;  United  States  v.  Vinton,  2 
Sumner,  299. 


PAY  AND  ALLOWANCES   I   B   3.  851 

was  entitled  for  such  period  to  the  full  pay  of  his  rank.^  R.  31,  599, 
Aug.,  1871.  An  officer  relieved  from  duty  and  placed  on  ''waiting 
orders/'  by  the  direction  of  the  Secretary  of  War,  is  not  hable  to  loss 
of  pay  by  reason  of  such  status.     P.  63,  106,  Dec,  1893. 

I  B  3.  Held,  that  the  principle  enunciated  in  Army  Regulations  of 
forbidding  officers  to  take  or  receive  receipts  in  blank  for  public 
money  or  property  is  sound  and  no  good  reason  exists  for  makmg  an 
exception  m  the  case  of  officers'  pay  accounts.  P.  58,  ^26,  Mar.  27 j 
1893. 

I  B  4.  An  officer's  ''pay  account"  is  not  commercial  paper,  but,  in 
its  legal  aspect,  a  mere  receipt.^  So  Jield  that  a  honajiae  assigneee  of 
an  officer's  pay  account  for  a  certain  month,  who,  on  receiving  pay- 
ment thereon  from  a  paymaster,  dehvered  to  the  latter  the  account 
with  his  name  written  on  the  back  of  the  same,  did  not  thereby  incur 
the  obligation  of  an  indorser,  or  render  himself  liable  as  such  for  the 
amount  to  the  paymaster,  on  its  being  ascertained  that  the  officer  had 
already  himself  drawn  his  pay  for  that  month,  and  that  a  double 
payment  had  thus  been  made.*     R.  J^3,  68,  Oct.,  1879. 

I  B  5.  Held  that  where  an  officer  has  been  declared  non  compos 
mentis  the  War  Department  will  on  proper  representation,  recognize 
the  committee  or  guardian  appointed  by  the  civil  authorities  and 
undertake  to  pay  to  such  committee  or  guardian  the  salary  due  the 
officer.     C.  29315,  Dec.  12,  1911. 

I  B  5  a.  The  Government  has  no  power  to  compel  an  officer  of  the 
Army  to  furnish  his  wife,  for  her  support,  with  a  certain  proportion, 
or  any  part,  of  his  pay.  Where  such  an  officer  is  confined  in  an  insane 
asylum,  his  wife  may,  by  having  a  curator  appointed,  be  enabled  to 
avail  herself  of  liis  pay  for  the  support  of  herself  and  her  family.  P. 
59,  348,  May,  1893.  The  wife  of  an  officer  under  treatment  at  the 
Government  Hospital  for  the  Insane,  who  has  been  duly  appointed, 
and  has  given  bond,  as  the  guardian  of  her  husband,  under  the  laws  of 
the  State  of  her  residence,  may,  by  the  authority  of  section  952,  R.  S. 
(District  Code),  collect  and  receive  his  pay  or  other  moneys  that  may 
be  due  him  in  the  same  manner  as  if  her  ''authority  had  been  derived 
from  the  tribunals  of  the  District."     P.  57,  479,  Feb.,  1893. 

1  B  6  a.  In  considering  service  for  the  purpose  of  computing  lon- 
gevity pay  under  section  1262,  R.  S.,  liela  that  service  as  a  medical 
cadet  may  be  counted,  as  such  cadets,  although  not  privates  or  non- 

^  This  opinion  was  affirmed,  in  the  same  case  (United  States  v.  Williamson)  by  the 
Court  of  Claims,  in  1873  (9  Ct.  Cls.,  503),  and  by  the  Supreme  Court,  in  the  next 
year  (23  Wallace,  411).  But  in  United  States  v.  Phisterer,  4  Otto,  219,  it  was  held 
that  an  officer,  ordered  to  his  home  to  await  orders,  was  not  entitled  to  commutation 
for  quarters  and  fuel,  his  home  not  being  a  "station."  See  G.  O.  78,  Hdqrs.  of  Army, 
1877,^  issued  in  consequence  of  this  decision.  But  see  the  case  of  United  States  v. 
Lippitt,  10  Otto,  663,  where  the  officer  was  ordered  to  the  headquarters  of  a  military 
department  to  await  orders. 

2  Note  in  this  connection  the  opinion  of  the  Attorney  General,  in  16  Op.,  191,  to 
the  effect  that  an  approved  account  or  voucher  issued  to  a  contractor  for  an  amount 
due  him  under  his  contract  is  "not  in  any  proper  sense  negotiable  paper." 

3  Under  date  of  Dec.  27,  1911,  the  comptroller  held  that  the  practice  of  drawing 
checks  to  the  order  of  the  indorsee  in  the  payment  of  officers'  monthly  pay  accounts 
indorsed  for  deposit  to  the  credit  of  themselves,  or  other  persons  named,  with  indi- 
viduals or  institutions  is  in  violation  of  sec.  3620,  R.  S.  This  decision  does  not  affect 
the  right  of  an  officer  to  transfer  his  account  on  or  after  maturity  under  the  act  of  Mar.  2, 
1907,  which  reads:  "Hereafter  all  commissioned  officers  of  the  Army  may  transfer  or 
assign  their  pay  accounts,  when  due  and  payable,  under  such  regulations  as  the  Secre- 
tary of  War  may  prescribe." 


852  PAY  AND  ALLOWANCES  I  B  7  a. 

commissioned  officers,  were  clearly  enlisted  men.^  B.  4-3,  196,  Feb. 
14,  1880;  C.  21108,  Feb.  23,  1907. 

I  B  7  a.  The  designation  in  Army  Regulations  of  classes  of  officers 
who  are  required  to  be  mounted  is  not  conclusive  that  such  officers 
are  entitled  under  all  conditions  to  additional  pay  when  they  pro- 
vide suitable  private  mounts,  but  that  the  duty  which  the  officer  is 
performing  is  the  test  as  to  whether  or  not  he  is  required  to  be  mounted, 
and  whether  or  not,  in  view  of  his  providing  suitable  mounts  for 
such  duty,  he  is  entitled  to  mounted  pay  for  the  time  being.^  C. 
27952,  Sept.  8,  1911;  28285,  May  5,1911. 

I  B  7  a  (1).  Held  that,  under  section  1270  R.  S.,  the  duty  of  acting 
assistant  quartermaster,  at  a  general  depot  of  the  Quartermaster's 
Department,  is  one  that  requires  an  officer  to  be  mounted.  C.  19403, 
Mar.  20,  1906. 

I  B  7  b.  Held,  that  the  act  of  May  11,  1908  (35  Stat.  108),  condi- 
tions the  increased  pay  therein  authorized  upon  the  number  of  horses 
owned.  Held,  that  if  one  suitable  mount  is  owned  an  addition  of 
$150  accrues.  If  two  are  owned  the  officer  becomes  entitled  to  $200. 
No  "first"  or  ^'second"  mounts  are  recognized  or  provided  for  in  the 
statute.  All  mounts  for  which  pay  is  drawn  must  be  suitable,  and  if 
suitable  the  owner  becomes  entitled  to  the  allowances  above  indi- 
cated.«     C.  24000,  Oct.  23,  1908. 

I  C  1 .  A  soldier  in  confinement  awaiting  the  result  of  his  trial  by 
court-martial  was,  contrary  to  (paragraph  986)  Army  Regulations 
(1910),  paid  one  month's  pay,  which,  in  compliance  with  instructions, 
he  delivered  to  the  officer  of  the  day,  who  turned  it  over  to  the  adjutant 
of  the  post.  The  latter  delivered  it  to  a  paymaster  with  the  state- 
ment that  at  the  time  of  payment  the  prisoner  was  ' '  awaiting  result 

^  For  the  law  controlling  longevity  pay  see  sec.  1262,  1263,  and  1267,  R.  S.,  and  sec. 
7  of  the  act  of  June,  18,  1878  (20  Stat.  150);  act  of  Feb.  24,  1881  (21  Stat.  346);  act  of 
June  30,  1882  (22  Stat.  118);  act  of  June  30,  1902  (32  Stat.  511);  act  of  Mar.  2,  1903 
(32  Stat.  932);  and  act  of  May  11,  1908  (35  Stat.  108).  See  also  Pay  Manual  Subject, 
Longevity  Pay,  and  Army  Regulation  subject  Longevity  Pay. 

2  See  XVI  Comp.  Dec,  113,  in  which  it  is  remarked  as  follows:  "Bearing  in  mind 
the  purpose  of  the  act  of  May  ll,  1908,  is  to  give  the  same  regular  pay  to  officers  of  the 
Army  of  corresponding  grades  in  all  branches  of  the  service,  whether  mounted  or  not 
mounted,  before  an  officer  is  entitled  to  receive  said  addition  to  his  pay  as  in  said 
act  provided,  it  must  appear  that  he  was  required  to  be  mounted  and  that  he  provided 
himself  with  suitable  mounts  at  his  own  expense.  ''^  *  *  If  a  captain  of  cavalry 
is  not  required  to  be  mounted,  although  he  should  provide  himself  with  mounts  at 
his  own  expense,  he  is  not  entitled  to  said  addition  to  his  pay.  In  this  respect,  as  in 
respect  to  regular  pay  of  officers  of  corresponding  grades,  Army  officers  in  all  1)ranche8 
of  the  service  are  upon  an  equal  footing.  An  assignment  of  a  captain  of  cavalry  to 
duty  on  a  Government  transport,  where  he  is  required  to  perform  duty  at  sea,  is  obvi- 
ously an  assignment  to  a  duty  the  performance  of  which  does  not  require  him  to  be 
mounted.  In  such  case  the  United  States  would  not  furnish  him  with  mounts  and 
horse  equipments  in  kind,  nor  would  he  be  entitled  to  an  addition  to  his  pay  if  he 
should  under  such  circumstances  provide  himself  with  suitable  mounts  at  his  own 
expense.  Upon  such  facts  the  certificate  of  the  officer  that  he  was  required  to  be 
mounted  and  that  he  provided  himself  with  suitable  mounts  at  his  own  expense  would 
not  be  conclusive  upon  the  accounting  officers.  On  the  other  hand,  if  an  Army  officer, 
whether  Cavalry,  Artillery,  or  Infantry,  is  required  to  be  mounted  and  while  so  required 
provides  himself  with  suitable  mounts  at  his  OAvn  expense,  is  temporarily  detached 
from  the  station  where  his  mounts  are  kept,  so  long  as  his  mounts  are  actually  and 
exclusively  owned  and  kept  for  his  use  in  the  military  service,  such  mere  tem- 
porary detachment  from  such  station  would  not  deprive  him  of  his  right  to  said 
additional  pay." 

3  For  definition  of  "suitable  mount,"  see  G.  O.  29,  War  Department,  Washington, 
Mar.  4,  1911. 


PAY  AND  ALLOWANCES  I   C  2.  853 

of  trial."  The  paymaster  deposited  it  to  the  credit  of  the  Treasurer 
of  the  United  States.  Held,  that  upon  payment  to  the  soldier  the 
titk^  to  the  money  vested  in  him,  and  admsed  therefore  that  his  apph- 
catiou  for  reimbursement  be  referred  to  the  Auditor  for  the  War 
Department.  C.  3258,  June,  1897;  14787,  June  12, 1903;  12227,  Feb, 
13,  1907. 

I  C  2.  As  the  enhstment  of  a  soklier  is  a  dvil  obligation,  the  con- 
tractual rights  of  the  Government  or  of  the  soldier  should  be  deter- 
mined, to  some  extent  at  least,  by  the  rules  governmg  the  interpre- 
tation and  execution  of  contracts.  It  has  also  been  the  endeavor  of 
this  office  to  discourage  the  disposition,  in  determining  the  right  to 
pay,  to  attach  too  much  weight  to  the  findings  of  courts-martial,  and 
to  the  acts  of  convening  officers  in  reviewing  records  of  trial. 

Courts-martial  are  executive  agencies  that  are  charged  by  law 
with  the  performance  of  certain  judicial  functions;  but,  like  other 
courts  having  criminal  jurisdiction,  they  are  without  power  to  pass 
upon  questions  of  civil  responsibility  or  contractual  obligation  or  to 
dispose  of  the  pay  of  an  accused  person,  save  to  direct  that  it  be 
applied  in  the  satisfaction  of  a  fine  imposed  by  way  of  punishment 
for  an  offense.  The  tendency  is  to  regard  the  court-martial  as  a 
tribunal  which  is  competent  to  pass  upon  questions  which  relate  to 
the  civil  obligation  of  the  soldier,  and  to  accept  its  judgments  in  that 
regard  as  final. 

It  would  seem  that,  when  an  undertaking  exists  by  which  the  sol- 
dier agrees  to  serve,  for  a  definite  period  of  time,  at  certain  rates  of 
pay,  he  is  entitled  to  pay  for  the  time  he  serves  and,  per  contra,  is  not 
entitled  to  pay  for  time  during  which,  through  the  fault  of  the  soldier, 
no  service  has  been  rendered  under  his  enlistment  contract.  If  it  be 
claimed  in  behalf  of  the  soldier  that  he  was  prevented  from  rendering 
service,  but  that  he  otherwise  stood  ready  to  render  it,  then  the  burden 
would  be  upon  him  to  show  that  such  an  impossibility  of  performance 
existed. 

A  court-martial  has  jurisdiction  to  try  the  criminal  offenses  of 
desertion  and  absence  without  leave;  that  is,  the  court  is  authorized 
by  law  to  determine  whether  an  offense  against  the  thirty-second  or 
forty-seventh  articles  of  war  have  been  committed.  If  the  soldier  be 
tried  for  either  offense,  and  is  acquitted,  the  acquittal  has  weight  in 
determining  whether  service  under  his  enlistment  contract  has  been 
rendered.  But  it  is  not  necessarily  decisive;  and,  under  the  rules 
to  which  I  have  alluded,  it  would  be  possible  to  state  his  accounts, 
under  his  contract,  without  a  reference  to  the  collateral  conclusions 
which  have  been  or  may  be  reached  by  the  court-martial.  C.  17768, 
June  17,  1905.  Held,  in  the  case  of  an  enlisted  man  who  was  con- 
victed of  desertion,  but  whose  conviction  was  set  aside  by  the  con- 
vening authorit;y",  as  the  records  showed  that  for  a  period  of  more  than 
a  year,  the  soldier  had  been  absent  from  duty  and  had  rendered  no 
service  under  his  enlistment  contract,  that  he  was  not  entitled  to  pay 
during  the  period  of  such  unauthorized  absence.  C.  17768,  June  17, 
1905.  In  computing  the  period  during  which  a  soldier  is  not  entitled 
to  pay  on  the  ground  that,  by  reason  of  his  absence,  he  has  failed  to 
render  service  under  his  contract  of  enlistment,  the  view  expressed 
by  the  comptroller  ^  evinces  no  disposition  to  trespass  upon  the  field 

'  XII,  Comp.  Dec,  328.    XV.  id.,  661;  Pay  Manual,  1910  Ed.,  246,  247,  248. 


854  PAY  AND  ALLOWANCES  I  C  3. 

of  activity  prescribed  by  law  for  the  several  bureaus  and  offices  of  the 
War  Department.  Held,  that  where  the  facts  upon  which  compu- 
tations of  time  are  based  are  not  fully  set  forth  upon  the  muster 
rolls  which  have  been  referred  to  an  officer  of  the  pay  department, 
the  facts  as  they  stand  of  record  should  be  obtained  from  The  Adjutant 
General,  who  is  their  legal  custodian.     G.  17768,  Mar,  9,  1906. 

Similarly  lield,  in  the  case  of  a  deserter,  that  he  is  not  entitled  to 
pay  until  he  is  restored  to  a  duty  status.     C.  25833,-  Dec.  14,  1911. 

I  C  3.  The  requirements  of  army  regulations  are  that  officers  and 
enlisted  men  absent  in  confinement  by  the  civil  authorities  receive 
no  pay  during  such  absence;  if  released  without  trial,  however,  or 
after  trial  and  acquittal,  their  right  to  pay  for  the  period  of  such 
absence  is  restored;  held  that  the  reason  for  this  regulation  is  that 
if  a  soldier  is  withdrawn  from  duty  by  his  own  fault,  so  that  he  can 
not  earn  his  pay,  he  is  not  entitled  thereto;  but  that  if  he  is  with- 
drawn from  duty  without  fault  on  his  part,  he  should  not  be  deprived 
of  his  pay.  The  regulation  assumes  that  if  the  civil  authority  released 
him  without  trial,  or  tried  and  acquitted  him,  his  failure  to  render 
service  was  not  due  to  his  fault;  but  that  if  his  trial  resulted  in  con- 
viction, the  arrest  and  consequent  withdrawal  from  duty  was  due 
to  his  fault.     C.  16561 ,  July  8,  1904. 

I  C  4.  A  competent  State  court  appointed  a  guardian  of  the  person 
and  estate  of  a  retired  enlisted  man  of  the  United  States  Army,  resi- 
dent in  that  State,  who  had  been  duly  found  to  be  an  incompetent. 
To  avoid  the  order  of  the  court  the  latter  left  the  State  and  requested 
that  a  paymaster  outside  the  State  make  payment  to  him.  Held  that 
his  pay  could  legally  be  delivered  to  the  guardian.^  '  C.  3676,  Nov., 
1897;  15344,  Oct.  9,  1903. 

I  C  5  a.  In  counting  continuous-service  time  all  absence  without 
leave  should  be  deducted.  There  is  no  legal  relation  between  ^'con- 
tinuous service"  and  "terms  of  enlistment. "  Under  the  former  head 
only  service  unforfeited  by  reason  of  absence  without  leave  can  be 
counted;  a  term  of  enlistment,  upon  the  other  hand,  is  not  affected 
by  the  fact  that  the  soldier  durmg  that  particular  term  may  have 
been  absent  from  his  command  without  leave, ^  C.  18438,  Apr.  4, 
1907,  and  June  24, 1908. 

I  C  5  b  (1).  Where  a  soldier  was  discharged  without  honor  and 
allowed  to  reenlist,  or,  to  speak  more  correctly,  where  service  under 
a  subsequent  fraudulent  enlistment  was  accepted  by  the  department, 
lield,  that  he  is  not  entitled  to  continuous-service  pay,  as  his  dis- 
charge from  his  last  preceding  enlistment  was  not  honorable.  C. 
22855,  Mar.  11, 1908. 

I  C  5  b  (2).  The  operation  of  a  dishonorable  discharge  being  to 
terminate  all  unexpired  enlistments,  where  a  soldier  who  had  been 
dishonorably  discharged  afterwards  enlisted  in  the  volunteer  forces, 
from  which  he  was  honorably  discharged  on  January  29,  and  on 
May  15,  1901,  again  enlisted  in  the  Regular  Army,  held  that  the 
status  of  such  soldier  is  that  of  one  who  enlisted  on  May  15,  1901, 
and  service  in  a  prior  enlistment  terminating  in  a  dishonorable  dis- 

^  Concurred  in  by  the  comptroller  under  date  of  Jan.  8, 1898. 
2  See  XV  Comp.  Dec,  79,  165,  339. 


PAY   AND   ALLOWANCES   I   C   5  C.  855 

charge  can  not  be  considered  in  determining  his  pay  status.*  (7. 
^£333,  Nov.  9,  1907. 

I  C  5  0.  Heldj  that  Phihppine  Scouts  are  not  entitled,  under  sec- 
tion 36  of  the  act  of  February  2,  1901  (31  Stat.,  755),  in  the  absence 
of  regulations  in  furtherance  thereof,  to  the  bonus  for  reenlistment 
which  is  granted  to  enlisted  men  of  the  Regular  Army  in  the  act  of 
appropriation  for  the  support  of  the  Army.     C.  23990,  Oct.  21,  1908. 

I  C  6  a.  The  provision  as  to  extra-duty  pay  of  section  1287,  R.  S., 
is  evidentlj^  intended  to  cover  only  such  laoor  as  may  legitimately  be 
performed  in  the  military  service  by  soldiers  aa  such.  So  held  that 
an  enlisted  man  could  not  legally  be  paid  extra-duty  pay  for  services 
proposed  to  be  rendered  as  a  telegraph  operator  to  a  private  telegraph 
company,  the  same  being  an  employment  for  which  he  could  not 
legallv  bo  detached  from  his  legitimate  duties  as  a  soldier.  R.  51, 
281,  Dec,  1886, 

I  C  6  b.  The  extra-duty  pay  is  payable  only  for  *  'constant  labor  for 
a  period  of  not  less  than  ten  days."  Thus  held,  that  a  noncommis- 
sioned officer  who  acted,  during  a  single  day,  as  auctioneer  at  a  sale 
of  condemned  quartermaster  stores  was  not  legally  entitled  to  the 
payment  of  a  10  per  cent  commission  on  the  proceeds  of  the  sale  or 
to  any  other  compensation  whatever,^  and  that  the  post  quartermaster 
in  paying  him  the  said  commission  was  chargeable  with  a  misappli- 
cation of  public  funds.  P.  60,  363,  July,  1893;  62,  95,  Oct.,  1893; 
C.  6988,  Sept.  12,  1899;  11983,  Feb.  1,  1902. 

I  C  6  b  (1).  The  Army  appropriation  act  of  1885-86  (23  Stat.  359) 
provided  that  thereafter  extra-duty  pay  of  enlisted  men  on  extra  duty 
at  constant  labor  of  not  less  than  10  days  would  ' '  be  paid  at  the  rate 
of  50  cents  per  day  for  mechanics,  artisans,  school-teachers  and  clerks, 
at  Army,  division,  and  department  headquarters,  and  35  cents  per 
day  for  other  clerks,  teamsters,  laborers  and  other  enlisted  men  on 
extra  duty."  Held,  that  this  would  authorize  the  payment  of  extra 
duty  pay  to  enlisted  men  detailed  as  clerks  at  post  and  regimental 
headquarters  whenever  there  is  money  available  for  such  payment; 
but  remarked  that  the  current  Army  appropriation  act  contained  no 
appropriation  from  which  the  payment  could  be  made.^  C.  3762, 
Jan.,  1898. 

I  C  6  b  (2).  Held,  that  an  arsenal  was  a  post  within  the  meaning  of 
section  1231,  R.  S.,  relating  to  the  establishing  of  schools  at  posts, 
etc.,  and  that  an  enlisted  man  detailed  as  a  school-teacher  at  an 
arsenal  was  therefore  entitled  to  the  extra-duty  pay  specified  in  the 
act  of  March  3,  1885,  amending  section  1287,  R.  S.,  the  principle 
being  that  an  enlisted  man  belonging  to  a  particular  staff  department 
is  not  entitled  to  extra-duty  pay  for  services  rendered  in  that  depart- 
ment.    R.  55 J  30,  Sept.,  1886. 

I  C  6  b  (3).  The  principle  governing  the  allowance  of  extra-duty 
pay  to  enlisted  men  belonging  to  the  several  staff  departments  is, 
that  such  enlisted  man  is  not  entitled  to  extra-duty  pay  for  the  per- 

.  1  See  XIV  Comp.  Dec,  367. 

^  This  view  was  concurred  in  by  the  Second  Comptroller  of  the  Treaflury  in  a 
decision  published  in  Circ,  No.  3,  A.  G.  0.,  1894,  overruling  prior  decision  of  May  22, 
1893 

3  See  Brady  v.  U.  S.,  No.  30458,  Ct.  Cls.,  Feb.  12,  1912,  in  which  it  was  held  that  a 
soldier  on  special  duty  as  company  clerk  was  not  entitled  to  extra-duty  pay  for  that 
service.    This  decision  will  appear  in  47  Ct.  Cls. 


856  PAY  AND   ALLOWANCES   I   C   6  b  (4). 

formance  of  duty  pertaining  to  the  department  to  which  he  belongs; 
if,  however,  he  renders  service  in  another  staff  department,  having 
no  relation  to  the  duties  required  of  him  in  his  own  department,  he 
may  properly  receive  extra-duty  pay.     G.  25352,  July  31,  1909. 

I  C  6  b  (4) .  The  Army  regulation  providing  for  the  payment  from 
the  company  fund  of  the  extra  compensation  of  25  cents  per  day  to 
enlisted  men  who  are  cooks  has  reference  to  ordinary  enlisted  men 
and  does  not  apply  to  persons  enlisted  under  the  act  of  July  7,  1898, 
as  cooks  with  the  rank  and  pay  of  corporals.^     C.  4762,  Aug.,  1898. 

I  C  6  b  (5).  Where  enlisted  men  were  paid  for  extra  duty  as  mes- 
sengers in  operation  of  post  laundry  at  Columbus  Barracks,  Ohio, 
from  the  receipts  for  laundry  work,  held  that,  as  the  act  providing  for 
laundry  plant  ^  required  that  the  entire  cost  of  operation  shall  be  paid 
from  receipts  of  laundry  work  before  any  surplus  is  deposited  to  the 
credit  of  appropriation,  the  extra-dutv  pay  was  properly  paid  from 
such  receipts.3     C.  28968,  Sep.  13,  1911. 

I  C  6  c.  War  between  the  United  States  and  Spain  as  declared  by 
act  of  Congress  approved  April  22,  1898,  existed  when  the  act  of 
April  26,  1898,  was  passed.  Held,  therefore,  that  enlisted  men  in  all 
departments  of  the  Army  ceased  to  be  entitled  to  extra-duty  pay 
upon  the  date  of  the  approval  of  the  last-named  act.  C.  4089,  4135, 
4143,  4144,  May,  1898;  4^56,  June,  1898. 

I  C  6  c  (1).  Section  6  of  the  act  of  April  26,  1898,  ''For  the  better 
organization  of  the  line  of  the  Army,"  m  providing  that  in  war  time 
no  additional  increased  compensation  (i.  e.,  additional  to  the  twenty 
per  centum  increase)  shall  be  aUowed  to  soldiers  performing  what  is 
known  as  extra  or  special  duty,  applies  to  increased  compensation 
made  directly  from  appropriations  for  the  support  of  the  Armv  and 
not  to  payments  made  from  the  company,  bakery,  or  post  exchange 
funds.  C.  4414,  4539,  4540,  5442,  June  to  Dec,  1898;  5661,  Jan., 
1899;  20121,  July  25,  1906;  20152,  July  31,  1906. 

I  C  6  d.  Where  appropriations  are  made  for  work  other  than  that 
covered  by  the  items  for  extra-duty  pay,  enlisted  men  may,  under 
proper  restrictions,  be  employed  on  extra  duty  thereon  and  paid  extra 
compensation  from  such  appropriation,  even  though  the  appropria- 
tion itself  does  not  specify  payments  for  extra-duty  services.  In 
such  a  case  the  proper  autnority  may  select  means  of  accomplishing 
the  work  authorized  by  the  appropriation  and  compensate  enlisted 
men  for  extra  duty  thereon  instead  of  doing  it  wholly  by  civilian 
labor.  0,  15827,  Feb.  2,  1904.  So,  held  that  extra-duty  pay  might 
be  paid  to  printers  at  posts  out  of  the  appropriation  for  printing. 
C.  15827,  Feb.  2,  1904,  and  Oct.  21,  1904.  So,  enlisted  men  might 
receive  extra-duty  pay  in  connection  with  the  construction  of  a 
target  range  from  the  money  set  aside  for  the  construction  of  such 
ranges.^     C.  19038,  Jan.  11,  1906. 

I  C  7  a.  Where  a  soldier  deposited  $50,  under  the  act  of  May  15, 
1872,  presumably  in  anticipation  of  his  application  for  purchase  of 
discharge,   and  subsequently  while  such   application  was  pending 

*  The  pay  of  cooks  enlisted  since  the  act  of  Mar.  2,  1899,  is  that  of  sergeants  of 
Infantry. 

2  Act  of  Mar.  23,  1910  (36  Stat.  253). 

3  See  manuscript  decision  of  Comptroller  of  the  Treasury  of  Nov.  20,  1911,  sustain- 
ing above  views  and  reversing  the  Auditor  for  War  Department. 

*  See  "Appropriations "XXII. 


PAY  AND   ALLOWANCES  I   C   7   a  (l).  857 

deserted,  held  that  said  deposit  was  necessarily  unconditional  and 
like  any  other  deposit  was  forfeited  by  desertion.  C.  807,  Jan.,  1895; 
14901,  July  6  and  Aug.  2^,  1903;  17311,  Jan.  4,  1905. 

I  C  7  a  (1).  Held  that  there  was  no  legal  authority  for  ihQ  refund- 
ing, by  the  military  authorities,  of  money  paid  to  purchase  a  discnarge 
under  the  act  of  June  16,  1890.  This  clearly  appears  from  the  terms 
of  the  act  which  provides  that  the  money  when  paid  "shall  be 
deposited  in  the  Treasury"  to  the  credit  of  the  appropriation  for 
pay  of  the  Army,  to  be  "available  for  the  payment  of  expenses 
mcurred  during  the  fiscal  year  in  which  the  discharge  is  made.'^ 
The  act  moreover  authorizes  the  President  to  permit  such  purchases 
"under  such  rules  and  upon  such  conditions  as  he  shall  prescribe,'' 
and  nothing  is  found  in  tlie  rules  actually  prescribed  (G.  O.  81,  108, 
of  1890;  G.  O.  90  June  30,  1911,  which  contemplates  or  refers  to  the 
refunding  of  such  purchase  money.  P.  65,  71,  May,  1894;  G- 14^01, 
July  6,  Aug.  24,  1903. 

I  C  8  a.  Held  that  both  allotments  and  discontinuances  of  allot- 
ments by  soldiers  are  voluntary  and  entirely  within  the  discretion  of 
the  soldier  making  them.     O,  11403,  Nov.  9,  1901. 

II  A  1  a.  The  act  of  March  2,  1907,  creates  an  allowance  in  Icindj 
as  distinguished  from  one  which  can  be  commuted  in  money,  in 
accordance  with  a  rate  or  measure  of  commutation,  which  is  pre- 
scribed by  law,  as  in  the  case  of  commutation  of  quarters  or  rations, 
or  tlie  reimbursement  by  means  of  mileage  of  the  cost  of  travel  per- 
formed in  the  public  service.  C.  19126,  Mar.  6,  1907.  Held  that 
heat  and  light  can  not  be  furnished  at  any  other  place  or  to  any 
other  building  than  that  occupied  by  the  officer  or  enlisted  man  at 
his  post  of  duty.     C.  19126,  Jan.  21,  1909,  Dec.  16,  1911. 

II  A  1  b.  The  act  of  March  2,  1907  (34  Stat.  1167),  is  positive  in 
its  requirements,  and  charges  the  War  Department  with  the  duty  of 
providing  heat  and  light  for  the  quarters  lawfully  occupied  by  com- 
missioned officers  and  enlisted  men.  It  matters  not  whether  the 
quarters  belong  to  the  United  States,  or  are  procured  by  the  Quarter- 
master's Department  in  the  operation  of  leases,  or  are  occupied  by 
commissioned  officers  who  are  in  receipt  of  the  statutory  allowance 
of  commutation.  The  law  simply  provides  that,  as  to  all  the  buildings 
or  parts  of  buildings  so  occupied  by  officers  or  enlisted  men,  it  is  the 
duty  of  the  Quartermaster's  Department  to  furnish  the  necessary 
heat  and  light. 

The  statute  is  silent  as  to  the  method  in  which  such  heat  and 
light  shall  be  provided,  and  it  places  no  limitation  on  its  cost. 
Finally,  the  details  of  execution  are  committed  to  the  discretion  of 
the  Secretary  of  War  by  the  express  requirement  that  the  heat  and 
light  shall  be  furnished  under  such  regulations  as  the  Secretary  of 
War  may  prescribe.     0.  19126,  Aug.  27,  1908.  ^ 

II  A  1  c  (1).  The  right  to  quarters  accrues  in  behalf  of  an  officer 
in  the  operation  of  an  order  from  competent  authority  assigning  him 
to  a  particular  post  or  place  for  duty.  The  duty  of  heating  and 
lighting  is  charged  to  the  Quartermaster's  Department  onljy^  where 
an  officer,  at  the  station  to  which  he  has  been  regularly  assigned  to 
duty,  has  been  provided  with  quarters  in  kind,  or,  there  being  no 
such  quarters  available,  has  been  allowed  commutation.  C.  22467 , 
Dec.  9, 1907. 


858  PAY  AND  ALLOWANCES   II   A  1   C  (2). 

II  A  1  c  (2).  The  furnishing  of  heat  and  light  is  in  the  nature  of 
an  allowance  in  kind,  and  is  not  an  allowance  payable  to  an  officer 
in  money,  as  is  the  case  with  commutation  of  quarters,  mileage,  per 
diems,  etc.  In  other  words,  the  Quartermaster's  Department  is 
charged  by  law  with  the  duty  of  furnishing  heat  and  light,  such  duty 
becoming  operative  when  quarters  are  occupied  by  persons  entitled 
thereto  by  law  or  regulations,  and  payments  when  due  are  not  made 
to  the  officer  who  occupies  quarters  or  obtains  them  in  the  operation 
of  commutation,  but  to  persons  who  furnish  heat,  light,  fuel,  or 
illuminants.     C.  19126,  May  9  and  June  4,  1910. 

II  A  1  c  (3) .  An  officer  in  receipt  of  commutation  of  quarters  was 
ordered  to  Hot  Springs,  Ark.,  for  treatment;  lield  not  to  change  the 
status  of  the  officer,  who  continues  to  be  entitled  to  heat  and  light 
at  his  permanent  station.     C.  19126,  Apr.  18,  1907. 

II  A  1  c  (4) .  Held,  that  heat  and  light  could  lawfully  be  furnished 
for  such  rooms  only  as  the  Chief  and  Assistant  Chiefs  of  Philippine 
Constabulary  are  entitled  to  by  virtue  of  their  actual  rank;  any 
additional  allowance  must  come  from  the  Phihppine  Government. 
C.  19126,  June  26, 1907. 

II  A  1  c  (5).  An  officer  of  the  grade  of  major,  who  was  in  occupa- 
tion of  commuted  quarters,  was  promoted  to  the  grade  of  lieutenant 
colonel  on  April  2,  1910,  his  commission  bearing  date  of  April  14, 
1910;  Tield  that  he  was  entitled  to  pay  and  commutation  of  quarters 
from  the  same  date.  He  would  also  appear  to  be  entitled  to  occupy 
the  number  of  rooms  appropriate  to  his  new  grade  from  the  same 
date;  that  is,  from  the  date  of  the  vacancy;  in  other  words,  if  he 
was  entitled  to  one  additional  room  from  and  after  April  2,  1910, 
the  Quartermaster's  Department,  upon  due  notification,  would  have 
become  charged  with  the  duty  of  furnishing  heat  and  light  for  the 
additional  room  from  the  date  of  the  vacancy.  C.  19126,  May  9, 
1910.  If  the  additional  room  was  actually  used  by  the  officer  from 
and  after  the  date  of  his  promotion,  Tield  that  he  would  seem  to  be 
entitled  to  heat  and  light  therefor  during  such  time,  subsequent  to 
his  promotion,  as  the  room  has  been  occupied  by  him  as  quarters. 
C.  19126,  June  Jf,  1910.  Held  also  that  rights  to  heat  and  light  allow- 
ance begin  to  accrue  at  the  same  time  that  rights  to  pay  begin  to 
accrue.     C.  19126,  Apr.  1,  1911, 

II  A  1  c  (6) .  Where  an  officer  received  a  leave  of  absence,  retaining 
his  quarters  during  the  period  of  such  leave,  held  that  the  quarters 
were  standing  in  his  name  and  that  he  was,  theoretically  at  least, 
occupying  them,  so  that  the  fact  that  he  was  on  leave  was  not  mate- 
rial, the  officer's  occupation  being  such  that  no  junior  could  take  the 
quarters  from  him,  as  he  could  vacant  quarters,  and  his  occupation 
being  also  such  that  he  could  not  occupy  other  quarters  or  draw 
commutation  of  quarters  while  continuing  to  hold  them.  In  other 
words,  his  holding  exhausted  his  rights  to  quarters.  The  occupation 
of  quarters  while  on  leave  is  something  real,  not  a  fiction  merely,  and 
an  officer  if  holding  quarters  or  drawing  commutation  of  quarters 
is  entitled  to  his  allowance  of  heat  and  light  while  on  leave  of  absence. 
a  19126,  Sept.  4,  1909,  and  Feb.  4,  1911. 

II  A  1  d  (1).  Under  the  law  it  is  the  duty  of  the  Quartermaster's 
Department  to  see  that  rooms  furnished  to  enlisted  men  in  the  opera- 
tion of  the  law  and  regulations  are  heated  and  lighted.  If  the  local 
practice  in  renting  is  to  include  heat  and  light,  or  if  the  lease  or  the 


PAY   AND  ALLOWANCES  II   A  1   d  (2).  859 

rates  paid  call  for  it,  the  requirements  of  the  statute  are  satisfied; 
otherwise  heat  and  light  should  be  stipulated  for  in  the  lease  in  order 
that  proper  execution  may  be  given  to  the  statute  (act  of  Mar.  2, 
1907),  wiiich  requires  heat  and  light  to  be  furnished  at  the  cost  of 
the  United  States.     C.  19126,  Aug.  27,  1908. 

II  A  1  d  (2).  The  Quartermaster  General  is  charged  by  law  with 
furnisliing  heat  and  light  to  quarters  furnished  to  officers  and  enlisted 
men,  and  it  is  the  opinion  of  this  office  that  the  right  of  the  enlisted 
men  is  not  defeated  and  the  duty  of  the  Quartermaster's  Department 
is  not  diminished  by  the  fact  that  commutation  of  rations  is  paid  to 
the  soldier  bv  the  Subsistence  Department.  This  view  is  strength- 
ened by  the  tact  that  the  lease  of  the  quarters  in  question  does  not 
stipulate  that  heat  and  light  are  to  be  furnished  oy  the  landlord, 
leaving  it  a  duty  with  the  Quartermaster's  Department  to  furnish 
heat  and  light  in  conformity  to  the  requirements  of  the  statute. 

If  the  existing  requirements  and  regulations  on  the  subject  are 
obscure  or  lacking  in  clearness,  it  is  suggested  that  they  be  amended 
so  as  to  remove  the  doubts  of  the  rights  of  enlisted  men  serving  in 
places  where  public  quarters  are  not  furnished  by  the  United  States. 
C.  19126,  Jan.  11,  1909. 

II  A  1  d  (3).  An  enlisted  man  living  outside  the  military  reserva- 
tion on  wliich  he  is  serving  as  a  soldier  is  not  entitled,  as  of  right,  to 
heat  and  light.     C.  19126,  Dec.  28,  1909. 

II  A  1  e.  In  view  of  the  provisions  of  successive  appropriation  acts 
impliedly  restricting  the  selling  by  the  United  States  of  material  for 
fu5  and  light,  to  sales  to  ''officers,"  and  of  the  previous  practice  to 
that  effect,  held  that  such  sales  should  not  be  permitted  to  be  made 
to  other  classes  of  persons  until  Congress  shall  have  so  authorized. 
P.  58,  470,  Apr.,  1893. 

II  A  2  a  (2)  (a).  An  officer  was  ordered  from  Fort  Custer  to  Wash- 
ington, D.  C.,  to  await  retirement,  but  was  not  in  fact  retired  till  at 
the  end  of  about  five  montlis  after  his  arrival  at  Washington.  Held 
that  he  was  entitled  to  the  regulation  allowance  for  the  transporta- 
tion of  his  horses  from  Fort  Custer,  on  the  ground  that  he  was  chang- 
mg  station.  Washington  became  on  his  arrival,  and  continued  to 
be  during  the  five  months  mentioned,  his  proper  station,  where  he 
was  entitled  to  receive  the  other  allowances  accruing  to  an  officer 
at  his  station — commutation  of  quarters,  forage,  medical  attendance, 
the  right  to  purchase  commissary  stores  and  fuel,  etc.  P.  60,  22, 
June,  1893. 

II A  2  a  (2)  {a)  [1].  A  Cavalry  lieutenant,  ordered  from  Washington 
to  report  to  the  superintendent  of  the  Military  Academy  for  duty  at 
the  academy,  held  entitled  to  be  reimbursed  the  amount  paid  by  him 
for  the  transportation  of  his  horse  to  West  Point,  such  amount 
being  reasonable  and  within  the  regulation  limit.  An  assignment 
to  duty  at  the  academy  is  not  a  "college  detail."     P.  59,  7,  Apr.,  1893. 

II  A  2  a  (2)  (&).  The  act  of  March  23,  1910  (36  Stat.  255),  provides 
that:  *' Hereafter  transportation  may  be  furnished  for  the  owned 
horses  of  an  officer  not  exceeding  the  number  authorized  by  law 
from  point  of  purchase  to  his  station,  when  he  would  have  been 
entitled  to  and  did  not  have  his  authorized  number  of  owned  horses 
shipped  from  his  last  change  of  station,  and  when  the  cost  of  ship- 
ment does  not  exceed  that  from  his  old  to  his  new  station."     Para- 


860  PAY  AND  ALLOWANCES  II  A  2  b  (l). 

gr^ph  1114  Army  Regulations  of  1910  reads  iii  part  as  foUows: 
' '  4.  When  horses  are  purchased  by  officers  at  pomts  other  than  their 
station  the  Quartermaster's  Department  will  transport  them  from 
points  of  purchase  to  the  station  of  the  officer,  provided  the  cost  of 
shipment  from  point  of  purchase  to  new  station  does  not  exceed  the 
cost  of  shipment  from  the  old  to  new  station  on  last  change  of  sta- 
tion, and  provided  the  officer  has  not  had  his  authorized  private 
mounts  shipped  from  his  old  to  his  new  station."  Held  that  a  mount 
purchased  at  Fort  Reno,  Okla.,  by  an  officer  of  the  Army,  may 
not  legally  be  shipped  to  him  at  San  Francisco,  Cal.,  whoUy  at  the 
expense  of  the  Government,  for  the  reason  that  the  cost  of  shipment 
from  Fort  Reno  to  San  Francisco  would  exceed  the  cost  of  shipment 
from  San  Diego,  Cal.,  the  officer's  last  preceding  station,  to  San 
Francisco,  his  present  station  (Aug.  5,  1911).  G.  24000,  Aug.  5, 
1911. 

II  A  2  b  (1).  An  officer  of  the  Army,  acting  as  Indian  agent,  occu- 

Eied  as  his  quarters,  without  rent,  a  house  at  the  agency,  placed  at 
is  disposal  tor  the  purpose  by  the  Interior  Department,  rield  that 
he  was  not  entitled  to  commutation  of  quarters.  Moreover  the  appro- 
priation in  the  Army  appropriation  act  for  commutation  of  quarters 
IS  f or  ^ '  officers  on  duty,"  etc.  Further  held  therefore  that  this  ' '  duty  " 
meant  military  duty,  and  did  not  include  duty  as  an  Indian  agent 
under  the  act  of  June  13,  1893,  which,  in  authorizing  the  detau  of 
officers  of  the  army  as  Indian  agents,  detaches  them  from  military 
service  and  duty  for  the  time  bemg,  and  places  them  '^  under  the 
orders  and  direction  of  the  Secretary  of  the  Interior."^  P.  64,  121, 
Mar.,  1894,  O.  12939,^  July  25,  1902;  14574,  Jan.  8,  1910. 

II A  2  b  (2).  It  is  within  the  power  of  the  Secretary  of  War  to  assign 
an  officer  to  any  military  duty  and  to  give  him  a  station  at  any  place 
within  or  without  the  United  States  where  the  duty  to  which  he  has 
been  assigned  can  most  conveniently  be  performed.  Held  that  to 
meet  the  case  of  an  officer  who  was  on  the  duty  of  mapping  the  coun- 
try, it  is  only  necessary  to  assign  the  officer  to  duty  at  a  place  con- 
venient to  his  work.  And  held  further  that  as  there  are  no  public 
quarters  at  such  place,  he  becomes  entitled  to  commutation.  It  may 
be  necessary  to  accompany  this  action  by  a  grant  of  authority,  when 
an  officer  is  married,  to  permit  his  family  to  continue  in  occupation 
of  quarters  during  the  absence  of  the  officer  so  assigned.     But  this  is  a 

1  See  the  case  of  U.  S.  v.  Dempsey,  decided  Sept.  28,  1900,  by  thelJ.  S.  Circ.  Court, 
D.  Montana  (104  Fed.  Rep.,  197),  in  which  the  court  held — 

1.  That  under  par.  1480,  Army  Regulations  (1322  of  1910)  which  provides  that 
"officers  on  duty,  without  troops,  at  stations  where  there  are  no  public  quarters,  are 
entitled  to  commutation  therefor,"  any  suitable  quarters  provided  by  the  Govern- 
ment for  the  use  of  an  officer  answer  the  requirement  for  "public  quarters,"  though 
not  expressly  built  for  Army  officers ;  and  an  officer  assigned  to  duty  as  an  Indian  agent, 
and  furnished  a  suitable  building  on  the  reservation  for  his  quarters,  without  charge, 
is  not  entitled  to  receive  commutation  for  quarters. 

2.  That  where  an  Army  paymaster  has  paid  an  officer  a  sum  as  a  commutation 
allowance  through  an  error  of  law,  the  United  States  is  not  bound  by  such  payment, 
and  may  recover  the  money  so  paid  in  a  proper  action,  with  interest  from  the  date 
when  the  officer's  accounts  were  settled  by  the  Treasury  Department,  at  the  rate 
established  by  the  laws  of  the  State  in  which  the  action  is  brought,  citing  in  support 
of  the  latter,  McElrath  v.  U.  S.,  102  U.  S.,  441;  Wisconsin  Central  R.  Co.  v.  U.  S.,  164 
id.,  190. 


PAY  AND  ALLOWANCES  II  A  2  b  (s).  861 

matter  falling  entirely  within  the  discretion  of  the  Secretary  of  War.^ 
C.  17407,  Jan.  18, 1905. 

II  A  2  b  (3).  If  an  officer  not  in  the  field  is  on  a  duty  that  requires 
him  to  travel,  and  finds  it  necessary  to  make  frequent  stops  varying 
in  length  from  a  few  days  to  a  few  weeks,  he  is  entitled  during 
such  stops  to  either  quarters  in  kind  or  commutation  of  quarters. 
C.  18963,  Sept.  30,  1904- 

II A  2  c  (1).  Held  that  the  regulation  allowance  for  the  expenses  of 
the  interment  of  an  officer  was  not  payable  in  a  case  of  an  officer  who 
at  the  time  of  his  death  was  on  sicK  leave,  this  not  being  one  of  the 
cases  specified  in  the  Army  appropriation  acts  (see  acts  of  June  30, 
1892,  and  Feb.  27,  1893),  in  wnich  such  allowance  is  authorized  to  be 
paid.  P.  60,  47,  June,  1893.  Similarly  held  in  a  case  of  an  officer 
who  died  at  Hot  Springs,  Arkansas,  when  not  on  duty  but  on  leave 
of  absence.2  P.  47,  263,  May,  1891;  C.  6126,  Mar.  27,  1899;  13698, 
Nov.  11,  1902. 

II  A  2  c  (2).  Held  that  the  fact  that  an  officer  had  been  interred  at 
the  post  where  he  died  did  not  preclude  the  Secretary  of  War  from 
authorizing  his  permanent  interment  elsewhere,  provided  the  entire 
expenses  of  burial  did  not  exceed  the  maximum  amount  of  $75 
allowed  for  such  purposes  by  the  Army  Regulations.  But  held 
further  that,  under  the  provision  on  the  subject  of  the  Army  appro- 
priation act  of  February  27,  1893,'  such  expenses  could  not  be  allowed 
for  the  interment  of  an  officer  dying  at  a  military  post  unless  he  was  on 
duty  there  at  the  time  of  his  death,  and  therefore  could  not  legally 
be  allowed  in  the  case  of  an  officer  who  died  at  a  post  where  he 
was  staying  while  on  sick  leave  of  absence  from  his  station  in  another 
mihtary  department.  P.  66,  183,  June,  1894;  0.  13698,  Nov.  11, 
1902. 

II  A  2  d  (1).  The  acts  of  June  18,  1878  (20  Stat.  150),  and  Febru- 
ary 24,  1881  (21  Stat.  347),  still  regulate  the  issue  of  forage  to  officers, 
who  become  entitled  to  the  allowance  '^only  for  horses  owned  and 
actually  kept  *  *  *  in  the  performance  of  their  official  military 
duties."  Held  that  a  subaltern  officer  who  owns  one  horse  may  draw 
forage  for  one.  If  he  owns  two  he  may  draw  forage  for  two,  pro- 
vided the  conditions  above  cited  in  respect  to  ownership  and  use  are 
compHed  with.     C.  24000,  Oct.  23,  1908. 

II  A  2  d  (1)  (a).  Held,  that  the  act  of  March  2, 1907  (34  Stat.  1166), 
was  never  intended  to  impair  the  efficiency  of  the  acts  of  June  18, 
1878  (20  Stat.  150),  and  February  24,  1881  (21  Stat.  347),  in  which 
the  forage  allowance  of  mounted  officers  is  regulated  and  provided 
for.  Held,  also,  that  the  act  of  May  11,  1908  (35  Stat.  108),  made 
no  change  in  respect  to  issues  of  forage  for  mounts  which  are  owned 
by  commissioned  officers,  but  left  their  forage  supply  to  be  governed 
by  the  acts  of  1878  and  1881.  The  public  animals  issued  to  officers 
for  their  official  use  in  the  operation  of  the  act  of  May  11,  1908,  con- 
tinue to  be  foraged  and  cared  for  by  the  United  States,  as  they 
always  have  been;  and  no  change  has  been  made  in  the  long-estab- 
lished arrangements  for  the  foraging  of  horses  owned  and  actually 

1  See  IX  Comp.  Dec,  379;  Pay  Manual,  126,  1910  ed. 

^  The  transportation  of  the  remains  of  deceased  officers  and  enlisted  men  is  now 
regulated  by  the  requirements  of  the  act  of  Mar.  3,  1909  (35  Stat.  743). 
^  See  act  of  Mar.  3,  1909  (35  Stat.  743). 


862  PAY  AND  ALLOWANCES  II  A  2  d(l)  (&). 

kept  by  the  commissioned  officers  in  the  performance  of  their  official 
military  duties.     C.  23277,  Feb.  16,  1909. 

II A2  d  (1)  Q)).  Held,  that  the  duty  upon  which  a  retired  officer 
is  placed  when  he  is  detailed  as  professor  at  an  educational  institution 
is  not  one  which  requires  him  to  be  mounted.  He  therefore  is  not 
entitled  to  a  forage  allowance,  as  forage  for  private  horses  is  not  a 
part  of  the  allowances  to  which  an  officer  is  entitled,  irrespective  of 
the  duty  on  which  he  is  engaged.     C.  23957,  Oct.  28,  1911. 

II  A2  d  (2).  A  contract  surgeon,  who  was  not  entitled  to  forage, 
purchased  horses  that  were  practically  unbroken  and  untrained,  and 
either  personally  or  through  his  employees  trained  them  as  driving 
horses.  He  accomplished  the  feeding  of  his  horses  by  entering  into 
an  arrangement  with  officers  who  were  by  law  entitled  to  forage 
under  which  arrangement  he  claimed  that  he  had  sold  the  horses 
to  such  officers  and  submitted  as  evidence  the  statement  that  a  bill 
of  sale  had  passed  with  a  consideration  of  $1.00.  Several  officers 
became  parties  to  this  transaction,  and  forage  was  drawn  against 
their  allowance  for  the  feed  and  bedding  of  these  horses.  He  later 
sold  these  horses  to  other  parties  for  considerations  commensurate 
with  their  values.  The  law  allows  forage  to  mounted  officers  for 
horses  ''owned  and  actually  kept"  by  such  officers  ''in  the  perfor- 
mance of  their  official  military  duties."  (Sec.  8,  act  of  June  18, 
1878,  20  Stat.  150;  act  of  Feb.  24,  1881,  21  Stat.  347.)  None  of  the 
horses  in  this  case  could  have  been  used  as  suitable  mounts  in  the 

Performance  of  the  official  military  duties  of  their  putative  owners, 
^one  of  them  were  "kept"  and  cared  for  by  any  of  the  officers. 
They  were  kept  and  trained  by  the  contract  surgeon  and  his  em- 
ployees, but  were  foraged  by  the  Quartermaster's  Department.  Held 
that  these  horses  were  not  "owned  and  actually  kept"  by  the 
mounted  officers  against  whose  forage  allowance  the  horses  were 
subsisted  "in  the  performance  of  their  official  military  duties."  ^ 
C.  23277,  Feb.  16,  1909. 

II  A3  a  (1).  Where  a  soldier  was  sentenced  to  dishonorable  dis- 
charge "forfeiting  all  pay  due  or  to  become  due,"  held  that  his  right 
to  clothing  allowance,  if  there  was  any  due  him  at  date  of  discharge, 
was  wholly  unaffected  by  the  sentence;  "allowances"  being  distinct 
from  "pay."     R.  49,  526,  Dec,  1885. 

II A  3  a  (2).  Pay  and  allowances  are  given  to  a  soldier  because  he 
earns  them  or  is,  without  fault  on  his  part  and  by  circumstances  not 
within  his  control,  prevented  from  doing  so ;  and  when  pay  is  with- 
held from  him  for  the  reason  that  he  (by  his  own  fault)  failed  to  earn 
it,  his  clothing  allowance  should  be  withheld  for  the  same  reason. 
Thus  Tield  that  a  soldier  absent  without  leave  by  his  own  fault,  or  in 
the  hands  of  the  civil  authorities  serving  sentence  of  a  civil  court, 
should  not  be  allowed  either  pay  or  clothing  allowance  for  the  period 
of  such  unauthorized  absence  from  duty.  C.  12025,  Feb.  6,  1902; 
2010,  Feb.,  1896;  14642,  May  22, 1903;  17518,  Feb.  13,  1905;  16966, 
July  17,  1905. 

1  See  G.  0.  206,  War  Department,  Washington,  Dec.  17,  1908,  which  published  the 
finding  and  opinion  of  a  court  of  inquiry  on  this  case.  See  also  G.  O.  202,  War  Depart- 
ment, Washington,  Dec.  12,  1908,  which  promulgated  the  sentences  awarded  by  the 
ensuing  courts-martial  in  this  case. 


PAY  AND  ALLOWANCES  II  A  3  a  (s)  (a).  868 

II  A  3  a  (3)  (a).  A  soldier  was  sentenced  ^'to  be  confined  at  hard 
labor  with  forfeiture  of  all  pay  and  allowances  for  six  months"  and 
while  serving  such  sentence  he  drew  clothing  to  the  value  of  about 
thirty  dollars  which  amount  was  charged  against  his  clothing  allow- 
ance accruing  prior  and  subsequently  to  the  period  of  confinement. 
Held  that  he  forfeited  his  clothmg  allowance  during  the  period  of  con- 
finement under  the  terms  of  the  sentence,  and  that  it  was  proper  to 
charge  the  same  against  him  as  stated.  This  is  understood  to  accord 
with  the  practice  in  such  cases.     C.  1525,  July,  1895. 

II  A  3  a  (4)  (a) .  Held  to  be  manifest  from  the  provisions  of  sec- 
tions 1242,  1296,  1303  and  5438,  R.  S.,  and  the  seventeenth  article  of 
war,  that  the  clothing  issued  to  soldiers  for  their  use  in  the  military 
service  continues  to  be  the  property  of  the  United  States  * — the  prac- 
tice of  charging  them  with  the  money  value  on  issue  being  required 
by  statute  mer3y  for  convenience  in  accounting  and  to  incite  economy 
in  the  use  and  care  of  the  clo tiling.  R.  45,  552,  Jan.  20,  1883;  P.  51, 
159,  Dec.  30,  1891;  C.  11251,  May  12,  1910;  16107,  Sept.  20,  1911; 
21179,  Dec.  23,  1911. 

II  A  3  a  (4)  (h).  When  a  soldier  is  discharged  without  honor 
because  of  fraudulent  enlistment  held  that  he  should  not  be  permitted 
to  take  clothing  with  him  which  has  been  drawn  in  excess  of  nis  allow- 
ance. C.  2113,  Mar.  9,  1896;  7782,  Mar,  6,  1900;  11251,  Sept.  24, 
1901;  16048,  Mar.  19,  1904. 

II  A  3  a  (4)  (c).  Held  that  upon  the  return  of  a  deserter  to  military 
control  he  can  not  claim  as  private  property  articles  of  uniform  cloth- 
ing which  had  been  issued  to  him  before  his  desertion  and  which  he 
left  behind  at  desertion.  C.  3251,  June  2,  1899;  21179,  Mar.  7, 
1907;  29407,  Jan.  30,  1912. 

II  A  3  a  (4)  id)  [1]  [a].  Under  section  1302,  R.  S.,  '/the  money 
value  of  all  clothing  overdrawn  by  the  soldier  beyond  his  allowance 
shall  be  charged  against  him,"  and  section  1298  provides  for  gratui- 
tous issues  to  replace  clothing  destroyed  to  prevent  contagion,  but 
there  is  no  other  statutory  authority  for  gratuitous  issues  to  enlisted 
men.  Under  section  1296  the  'Tresident  may  prescribe  the  uniform 
of  the  Army  and  quantity  and  kind  of  clothing  which  shall  be  issued 
annually  to  the  troops  of  the  United  States" ;  and  under  this  authority 
tables  are  issued  showing  the  price  of  clothing,  the  allowance  in  kind 

^  The  opinion  of  May  12, 1910,  was  approved  by  the  Secretary  of  War,  and  published 
in  Circular  36,  War  Dept.,  June  6, 1910.  The  views  above  expressed  are  in  accordance 
with  the  decisions  of  the  civil  courts,  where  prosecutions  have  been  had  under  sec. 
5438,  R.  S.,  and  its  reenactment  in  sec.  35  of  the  Criminal  Code,  of  persons  purchasing 
uniform  clothing  from  soldiers.  See  U.  S.  v.  Hart,  146  Fed.  Rep.,  202;  U.  S.  v.  Koplik, 
155  id.,  920;  U.  S.  v.  Smith,  156,  id.,  859;  Lobosco  v.  U.  S.,  183,  Fed.  Rep.,  742; 
Ontai  V.  U.  S.,  188  Fed.  Rep.,  310.  In  Lobosco  v.  U.  S.,  supra,  in  affirming  the  con- 
viction, it  was  said  that  the  uniform  clothing  '  'being  regarded  as  public  property, 
whether  remaining  in  a  public  depot,  or  in  the  possession  of  the  individual  soldier, 
and  this  notwithstanding  the  soldier  is  allowed  to  retain  such  articles  of  clothing  as  he 
has  then  in  use  on  the  expiration  of  his  term  of  service. "  In  Ontai  v.  U.  S.,  in  affirm- 
ing the  conviction,  it  was  said  '  'clothing  furnished  to  a  soldier  by  the  United  States 
under  a  clothing  allowance  does  not  become  his  private  property  which  he  has  a  right 
to  dispose  of  while  in  the  service,  but  is  public  property  within  sec.  35  of  the  Penal 
Code  (act  of  Mar.  4,  1909,  c.  321;  35  Stat.  1095).*'  Sec.  35  of  the  Criminal  Code  is  a 
reenactment  of  sec,  5438  of  the  Revised  Statutes,  with  the  addition  of  the  words 
'  'whether  furnished  to  the  soldier,  sailor,  officer,  or  person,  under  a  clothing  allowance, 
or  otherwise;"  thus  making  it  clear  that  the  clothing  issued  to  a  soldier  is  public 
property. 


864  PAY  AND  ALLOWANCES  II   A  3   a  (4)   (d)  [l]  [&]. 

to  each  soldier  for  each  year  of  his  enhstment,  thus  giving  the  money 
value  of  his  clothing  allowances,  and  these  are  changed  from  time 
to  time  in  orders.  Army  Regulations  provide  for  gratuitous  issues 
of  certain  articles  to  troops  serving  in  extremely  cold  climates,  such 
articles  to  be  charged  to  the  soldier  only  in  case  of  loss  or  damage 
other  than  from  fair  wear  and  tear;  and  these  regulations  while 
purporting  to  provide  for  gratuitous  issues  may  be  treated  as  pre- 
scribing an  increase  of  the  allowance  under  the  conditions  named  in 
the  regulations.  Where,  therefore,  the  department  commander 
directed  a  gratuitous  issue  of  one  suit  of  khaki  uniform,  one  cam- 
paign hat,  one  pair  of  leggings  and  one  pair  of  shoes  to  each  enlisted 
man  who  was  engaged  in  the  campaign  which  ended  with  the  attack 
upon  and  fall  of  Manila,  P.  I.,  on  August  13,  1898,  presumably  to 
replace  articles  lost  or  damaged  under  the  extraordinary  conditions 
of  the  campaign,  the  issues  to  be  made  upon  properly  approved 
requisitions,  etc.,  it  was  held  that  there  was  no  legal  objection  to  a 
regulation  providing  for  an  increase  in  the  clothing  allowance  to 
replace  articles  thereof  which  have  been  practically  destroyed  in  carry- 
ing on  a  campaign  under  the  conditions  of  the  campaign  in  question, 
and  that  the  regulation  could  be  made  retroactive  to  cover  issues 
already  made  with  respect  to  such  conditions.     C.  6862,  Feb.,  1899. 

II  A  3  a  {4)  id)  [1]  [6].  Circular  57,  A.  G.  O.,  1898,  provides  that 
^'whenever  articles  of  clothing  of  enlisted  men  have  been  destroyed 
to  prevent  contagion  a  gratuitous  issue  of  such  articles  of  clothing  will 
be  made  to  the  enlisted  men  to  whom  such  clothing  belonged  upon 
the  certificate  of  the  officer  who  has  personal  knowledge  of  the  facts."  ^ 
Held  that  there  was  no  provision  for  paying  for  the  clothing  destroyed, 
in  lieu  of  the  gratuitous  issue  authorized.  C.  6588,  Jan.,  1899; 
20143,  Aug.  3  and  16,  1906. 

II  A  3  a  (4)  (d)  [1]  [c].  A  soldier  is  not  entitled  to  be  credited  in  his 
clothing  account  with  the  value  of  clothing  lost  by  fire  or  other 
casualty.  This  can  be  made  good  to  him  only  through  the  reimburse- 
ment authorized  by  the  act  of  March  3,  1885  (23  Stat.  350).  P.  63, 
278,  Jan.,  1894;  O.  10026,  Mar.  22, 1901;  20143,  Aug.  2, 16,  and  Sept. 
21, 1906,  and  Oct.  13,  1910. 

II A  3  a  (4)  (e)  [1] .  Held  that  the  provision  in  an  Army  appropriation 
act  ''for  a  suit  of  citizen's  outer  clothing  *  *  *  to  be  issued  upon 
release  from  confinement  to  each  prisoner  who  has  been  confined  under 
a  court-martial  sentence  involving  dishonorable  discharge,"  did  not 
apply  where  the  sentence  of  the  court  adjudged  dishonorable  dis- 
charge without  any  term  of  confinement.^  C.  2926,  Feh.  9,  1897,  and 
Jan.  6,  1912;  I4266,  Mar.  12,  1903. 

II  A  3  b  (1)  (cf).  Authority  to  establish  the  rates  of  the  allowance 
for  commutation  of  rations  has  not  been  given  by  statute,  but 
these  rates  have  been  left  to  be  fixed  by  Army  regulation.  But 
these  amounts  are  recognized  and  sanctioned  in  the  provisions  of  the 
Army  appropriation  acts  relating  to  the  Subsistence  Department. 
P.  49,  441,  Oct.,  1891. 

II A  3  b  (1)  (6)  [1].  The  allowance  for  commutation  of  rations, 
made  payable,  by  the  Army  appropriation  act  of  February  27,  1893, 
''to  enlisted  men  traveling  on  detached  duty,  when  it  is  impracticable 

1  See  sec.  1298,  R.  S.,  and  par.  1188,  A.  R.,  1910  ed. 

2  See  par.  4,  circ.  4,  A.  G.  0.,  1897, 


PAY  AND  ALLOWANCES   III  A  1.  865 

to  carry  rations,"  etc.,  held  to  be  restricted  to  the  period  covered  by 
the  travel,  and  not  to  be  payable  to  a  soldier  for  commutation  of 
rations  consumed  at  the  aestination  where  he  was  placed  by  his 
orders  on  detached  duty,  viz,  for  four  days  board  at  a  hotel  at  the 
terminus  of  his  travel.     P,  59,  38,  Apr.,  1898. 

Ill  A  1 .  A  dismissal  of  an  officer  by  order  of  the  President  does 
not  involve  a  deprivation  of  any  part  of  the  pay  due  him,  and  if  the 
order  is  so  expressed  as  to  dismiss  him  *' without  pay  or  allowances," 
or  in  terms  to  that  effect,  it  is,  as  to  this  portion,  unauthorized  and 
inoperative.  R.  10,  216,  Aug.,  1864;  1^2,  78,  Dec,  1878,  and  470,  Jan., 
1880.  So  where  a  legal  muster  into  service  of  a  volunteer  officer  was 
revoked  by  order,  after  an  interval  of  service  rendered,  with  the  effect 
(given  to  the  order)  of  depriving  him  of  pav  for  such  service,  lield  that 
the  so-called  revocation  was  unauthorized  and  inoperative.  A  legal 
executive  act  can  not  be  thus  nullified  to  the  prejudice  of  a  vested 
right.     R.  42,  470,  Jan.  19,  1880. 

Ill  Ala.  The  Executive,  in  summarily  dismissing  an  officer  in 
time  of  war,  can  not  at  the  same  time  deprive  him  of  pay  due.  Nor 
can  the  right  of  an  officer  to  his  pay  for  any  period  prior  to  a  sum- 
mary dismissal  ordered  in  his  case  be  divested  by  a  dating  back  of 
the  order  of  dismissal.  Such  an  order  can  not  be  made  to  relate 
back  so  as  to  affect  the  status  or  rights  of  the  officer  as  they  existed 
before  the  date  of  the  taking  effect  of  the  dismissal.  R.  6,  879,  405, 
Sept.  and  Oct.,  1864;  10,  1,  4,  July,  1864;  17,  670,  May,  1866;  81, 
125,  Jan.,  1871;  85, 112,  Jan.,  1874;  42,  78,  Dec,  1878,  and  470,  July, 
1880;  C.  16828,  Sept.  18,  1904. 

Ill  A  2  a.  Where  a  sentence  suspended  an  officer  ''from  the 
service  for  the  term  of  six  months,"  held,  in  view  of  the  general  prin- 
ciple that  pay  may  not  be  forfeited  by  implication,  that  such  sentence 
could  not  properly  be  construed  as  intending  a  forfeiture  of  pay,  but 
should  be  regarded  as  imposing  a  suspension  from  rank,  promotion, 
and  command  only;  that  a  larger  meaning  should  not  be  ascribed 
to  its  language  merely  because  it  was  expressed  in  general  terms. ^ 
R.  28,  427,  Apr.,  1867. 

IIIB2.  Section  1766,  R.  S.,  which  prescribes  that  ^'no money 
shall  be  paid  to  any  person  for  his  compensation  who  is  in  arrears  to 
the  United  States,  until  he  has  accounted  for  and  paid  into  the 
Treasury  all  sums  for  which  he  may  be  liable,"  has  not  in  practice 
been  so  strictly  construed  as  to  preclude  the  making  of  stoppages 
against  the  pay  of  officers  and  enhsted  men  in  such  monthly  amounts 
as  to  leave  a  margin  for  necessary  living  expenses.  Thus  where  the 
stoppage  against  an  enlisted  man  was  $100,  advised  that  it  be  col- 
lected at  the  rate  of  $10  per  month.  C.  7415,  Dec,  1899;  8292, 
Dec  18,  1897.  ^ 

III  B  3.  A  civilian,  then  at  Pittsfield,  Mass.,  was  duly  employed, 
by  the  engineer  officer  in  charge  of   a  river  improvement,  as  an 

assistant  at   a  compensation   of   $150   per  month,  and  ordered   to 

• ^__ 

^  The  forms,  "to  be  suspended  from  service"  and  "from  duty, "  are  rarely  employed 
in  the  military  service.  The  form,  "to  be  suspended  from  rank  and  duty,"  occurs, 
however,  in  G.  C.  M.  O.  19,  A.  G.  O.  of  1885.  Suspension/rom  duhj,  as  distinguished 
from  suspension  from  rank,  is  a  recognized  punishment  in  the  naval  service.  Har- 
wood,  134  and  135. 

31106°— 12 55 


866  PAY  AND  ALLOWANCES  III   B  4. 

report  at  Montgomery,  Ala.  In  subsequently  settling  with  him  for 
his  services  the  officer  allowed  and  paid  him,  in  addition  to  his  salary, 
the  amount  of  his  expenses  of  travel  between  Massachusetts  and 
Alabama.  Held,  that  such  allowance  was  unauthorized  as  being  in 
excess  of  the  contract,  which  stipulated  only  for  the  payment  of  the 
salary  named,  and  was  therefore  legally  stopped  by  the  accounting 
officers  against  the  engineer  officer's  pay.^     P.  ^5,  182,  Oct.,  1890. 

Ill  B  4.  Pay  due  an  officer  or  soldier  can  not  legally  be  stopped 
to  reimburse  a  telegraph  company  for  moneys  received  by  a  sergeant 
of  the  then  Signal  Corps  for  transmitting  private  messages  over  its 
line,  the  same  not  being  a  line  ''operated  by  the  United  States,"  in 
the  sense  of  the  act  of  March  3,  1883,  c.  143,  and  the  indebtedness  of 
the  sergeant  being  to  the  telegraph  company  only,  not  to  the  United 
States.  P.  61,  185,  Aua.,  1893;  C.  20083,  July  30,  1906.  An  officer 
or  soldier  can  not  legally  be  mulcted  of  any  part  of  his  pay  for  the 
satisfaction  of  a  private  claim.  P.  33,  171,  June,  1889;  C.  5Ji46, 
Dec,  1898;  8355,  June,  1900;  11383,  Oct.  16,  1901.  ^ 

III  B  5.  A  stoppage  differs  from  a  fine  or  forfeiture,  in  that  the 
latter  is  imposed  as  punishment  for  an  offense,  while  the  former  is  a 
means  of  reimbursement  or  a  ''charge  on  account"  to  make  good  a 
loss.  A  stoppage  can  not  therefore,  in  the  absence  of  a  statute  or 
regulation  authorizing  it,  legally  be  imposed  as  a  punishment  for  an 
offense.  P.  36,  87,  Oct.,  1889.  But  it  is  entirely  legal  to  stop  against 
a  soldier's  pay,  under  the  Army  Regulations,  an  amount  required  to 
reimburse  the  United  States  for  loss  on  account  of  damage  done  to 

Eublic  property,  while  at  the  same  time  bringing  the  soldier  to  trial 
y  court-martial  for  the  offense  involved.     P.  62,  Jf.81,  Dec,  1893;  C. 
18115,  June  7,  1905. 

Ill  B  6.  The  United  States  is  not  authorized  to  stop  against  the 
pay  of  an  officer  or  soldier  an  amount  of  personal  indebtedness  to 
another  officer  or  soldier,  though  such  indebtedness  may  have  grown 
out  of  the  relations  of  the  military  service.  Thus,  in  the  absence  of  a 
sentence  of  court-martial  forfeiting  the  same,  an  officer's  pay  can  not 
legally  be  stopped  with  a  view  to  the  reimbursement  of  enlisted  men 
who  have  deposited  with  him  money  for  safe-keeping,  which  he  has 
failed  to  return  when  required,  the  officer  being  accountable  for  the 
same  in  a  personal  capacity  only.  R.  12,  510,  Aug.,  1865;  16,  637, 
Oct.,  1865;  C.  11383,  Oct.  16, 1901;  20083,  July  30, 1906;  26835,  July 
21, 1910. 

^  It  was  held  by  the  Court  of  Claims  in  Billings  v.  U.  S.,  23  Ct.  Cls.,  166,  that  Sec. 
191,  Kevised  Statutes,  which  declares  that  the  balances  stated  by  the  accounting 
officers  *' shall  be  conclusive  upon  the  Executive  branch  of  the  Government"  did  not  con- 
clude the  Secretary  of  War  in  the  exercise  of  his  legal  discretion  as  to  orders  issued 
to  his  subordinates;  that  under  that  section  the  decision  of  the  accounting  officers  was 
conclusive  as  to  the  "balances"  stated  by  the  accounting  officers  and  their  "decision 
thereon  "  for  the  purpose  of  determining  for  what  amounts,  if  any,  warrants  may  be 
drawn  on  the  Treasury;  but  that  when  the  accounting  officers  report  an  officer 
indebted  to  the  United  States,  it  is  a  matter  wholly  within  the  discretion  of  the  Sec- 
retary of  War,  under  Sec.  1766,  Revised  Statutes,  and  the  Army  Regulations  "whether 
to  order  a  stoppage  of  pay  or  not.'-  See,  also,  McKee  v.  V.  S.,  12  Ct.  Cls.,  604; 
Longwill  V.  U.  S.,  17  icf.,  291;  Hartson  v.  U.  S.,  21  id.,  453;  5  Op.  Atty.  Gen.,  386. 
The  accounting  officers  of  the  Treasury  have  not  the  burden  cast  upon  them  of  revis- 
ing the  action,  correcting  the  supposed  mistakes,  or  annulling  the  orders  of  the  heads 
of  departments.  U.  S.  v.  Jones,  18  Howard,  96;  U.  S.  v.  Hahn,  107  U.  S.,  402;  Brown 
V.  U.S.,  113  id.,  568. 


PAY  AND  ALLOWANCES  III   B   6   a.  867 

III  B  6  a.  Where  a  discharged  soklier  regularly  assigned  his  final 
statements,  which  upon  presentment  for  payment  were  found  to  call 
for  more  than  was  m  fact  due,  Jield  that  the  difference  between  the 
amount  paid  and  the  amount  erroneously  called  for  on  the  final  state- 
ment could  be  made  the  subject  of  a  claim  against  the  discharged  sol- 
dier, the  assignor,  but  not  against  the  United  Btates.  The  man  having 
reenJisted,  it  was  further  lieM  that  a  stoppage  against  his  pay  to  satisfy 
the  claim  above  referred  to  would  be  a  stoppage  to  satisfy  a  private 
claim  and  therefore  not  authorized.  C.  8355,  June,  1900;  13604, 
Nov.  11,  1902. 

Ill  B  7.  Where  certain  officers  had  misappropriated  and  applied  to 
their  own  use  $589.08,  company  funds,  recommended  that  that 
amount  be  stopped  against  tneir  pay.  C.  7186,  Oct,  1899;  15177, 
Aug.  31,  1903. 

Ill  B  7  a.  An  officer  at  the  time  of  his  death  was  accountable  for 
$360,  company  fund.  A  board  of  survey  reported  that  he  had  left  in 
lieu  of  the  money  an  unindorsed  Government  check  for  that  amount, 
payable  to  his  order  and  purporting  to  be  for  pay  due  him.  It  thus 
appeared  that  the  officer  owed  the  company  fund  $360,  and  that  the 
Grovernment  owed  him  the  same  amount  for  salary,  the  check  not  hav- 
ing been  presented  and  paid.  Advised,  therefore,  that  as  an  officer's 
pay  may  legally  be  stopped  to  reimburse  the  company  fund,  $360  be 
stopped  against  the  pay  due  the  deceased  officer,  and  that  the  check 
referred  to  be  returned  to  the  drawer  to  be  canceled.  C.  7957, 
Apr.,  1900;  15177,  Aug.  31,  1903. 

Ill  C  1  a  (1)  (a).  By  the  third  subdivision  of  Article  III  of  the 
Executive  order  of  March  30,  1898  (G.  O.  16,  A.  G.  O.,  1898),  it  is 
provided  that  in  consideration  of  previous  convictions  the  limit  of 
punishment  shall  be  ''dishonorable  discharge,  forfeiture  of  all  pay 
and  aUowances,  and  confinement  at  hard  labor  for  three  months.'' 
Such  a  sentence  means,  so  far  as  the  forfeiture  is  concerned,  forfeiture 
of  pay  and  aUowances  due  at  the  date  of  the  discharge.  A  court- 
martial  when  it  has  the  power  to  award  this  sentence  may  award  a 
lesser  one,  but  in  doing  so  can  not  award  confinement  and  forfeiture 
greater  in  amount  than  confinement  for  three  months  and  forfeiture 
of  pay  and  allowances  due,  or  its  equivalent  under  the  rule  of  sub- 
stitution authorized  in  the  order.^  C.  3694,  Apr.,  1898;  2381,  June, 
1896;  2751,  Nov.,  1896;  13734,  Dec.  2,  1902;  17203,  Dec.  20,  1904; 
17352,  Jan.  11,  1905. 

Ill  C  1  a  (1)  (a)  [1].  Where  a  soldier  was  sentenced  'Ho  be  dis- 
honorably discharged,  forfeiting  all  pay  and  allowances,  and  to  be 
confined  for  three  months,"  and  the  dishonorable  discharge  was 
remitted  in  approving  the  sentence,  Tield  that  the  forfeiture  was 
evidently  intended  to  relate  to  pay  due  at  the  date  of  discharge, 
and  that,  as  the  discharge  had  been  remitted,  the  forfeiture  could 
apply  only  to  pay  due  at  the  date  of  the  receipt  at  the  post  of  the 
order  publishing  the  sentence.     R.  51,  176,  Dec,  1886. 

^  Since  the  rendition  of  this  opinion,  the  Executive  order  referred  to  has  been 
amended  by  adding  thereto  the  following  (G.  O.  88,  A.  G.  O.  1900):  "Article  IX.  If, 
in  cases  where  the  limit  of  punishment  is  dishonorable  discharge,  forfeiture  of  all 
pay  and  allowances  and  confinement  at  hard  labor  for  a  stated  number  of  months, 
dishonorable  discharge  be  not  adjudged,  the  limit  of  forfeiture  shall  be  all  pay  due 
and  to  become  due  during  the  prescribed  limit  of  confinement."  See  Art.  V  of 
Executive  order,  published  in  G.  O.  204,  War  Dept.,  1908  (Court-Mar.  Manual,  1908, 
p.  60),  as  amended  by  G.  O.  77,  War  Dept.,  1911. 


868  PAY  AND  ALLOWANCES  III   C   1  a  (l)   {a)  [2]. 

Ill  C  la  (1)  (a)  [2].  Where  an  officer  was  sentenced  to  be  dismissed 
with  forfeiture  of  pay  due,  and,  subsequently  to  the  approval  of  the 
sentence  but  before  such  approval  had  been  promulgated  to  the 
Army  or  the  officer  had  been  officially  notified  of  the  same,  he  appHed 
for  and  received  the  pay  due  him,  held  that,  inasmuch  as  the  forfeiture 
had  not  taken  effect  at  the  time  of  the  payment,  no  illegal  act  was 
committed  by  the  officer,  and  that  the  paymaster  who  paid  him 
was  not  properly  to  be  held  accountable  for  the  amount  paid.  R.  10, 
609,  Nov.,  I864.  So  where  a  soldier  in  confinement  awaiting  the 
result  of  his  trial  by  court-martial  was,  contrary  to  Army  regula- 
tions 945,  paid  one  month's  pay,  it  was  held  that  his  title  thereto 
became  thereupon  vested  and  was  unaffected  by  the  sentence  of 
forfeiture  of  all  pay  and  allowances  subsequently  published  in  his 
case.  C.  3258,  June,  1897;  1^787,  June  12  1903;  16955,  Sept. 
29,  1904. 

IIIC  1  a  (2).  A  sentence  expressly  forfeiting  all  pay  due  a  soldier 
applies  only  to  pay  due  him  under  his  pending  contract.  It  will  not 
afl^ect  pay  which  may  be  due  for  service  rendered  under  a  previous 
enlistment  and  not  yet  settled.  R,  I4,  371,  Apr.  1865;  42,  73,  Dec, 
1878. 

Ill  C  1  b.  The  rule  prescribed  in  Army  Regulations  to  the  effect  that 
confinement  and  forfeiture,  when  the  sentence  is  silent  as  to  the  time 
of  their  taking  effect,  shall  be  operative  from  the  date  of  the  promulga- 
tion of  the  sentence  in  orders,  is  an  exception  to  the  general  rule  that 
orders  affecting  the  status  or  rights  of  officers  or  soldiers  shall  take 
effect  from  notice.  But  where  a  sentence  of  dismissal  of  a  cadet  of 
the  Military  Academy  was,  on  October  31,  1893,  commuted  to  sus- 
pension from  the  academy  without  pay  until  August  28,  1894,  held, 
that  the  general  rule,  ia  the  absence  of  any  specific  exception  of  such  a 
case  by  the  Army  Regulations,  appHed,  and  that  the  sentence  as 
commuted  took  effect  upon  and  from  notice,  the  forfeiture  com- 
mencing to  run  from  date  of  such  notice.     P.  64,  280,  Apr.,  1894- 

III  C  Ic  (1).  A  sentence  to  forfeit  aU  pay  and  allowances  due  and 
to  become  due  forfeits  commutation  of  quarters,  fuel,  and  rations,  the 
same  being  included  in  the  term  "  allowances."     R.  53, 270,  Apr.,  1887. 

IIIC  1  d  (1).  Where  a  sentence  of  a  soldier  forfeits  "all  pay  and 
allowances"  for  a  certain  period,  the  necessary  clothmg  may  be  sup- 
plied. All  prisoners  in  the  manual  custody  of  the  authorities,  civil  or 
military,  are  entitled  to  subsistence  during  their  detention,  and  it  can 
not  be  forfeited  by  sentence.     P.  62,  244,  Nov.,  1893. 

IIIC  1  e  (1).  Where  the  record  of  the  trial  of  a  deserter  was  de- 
stroyed by  fire  before  it  could  be  acted  upon  (and  it  could  not  be 
reproduced  from  existing  notes),  and  the  accused  was  thereupon 
restored  to  duty,  held,  that  the  destruction  of  the  record  before  the 
reviewing  authority  had  acted  on  the  case,  had  the  legal  effect  of  an 
acquittal  and  relieved  the  deserter  from  the  forfeiture  of  pay  due  at 
date  of  desertion.    P.  55,  181,  Aug.,  1892;  65,  338,  June,  1894. 

IIIC  1  f  (1).  In  a  case  of  a  forfeiture  by  sentence,  of  "pay  due" 
(or  "pay  due  and  to  become  due"),  the  amount  of  pay  due  and  pay- 
able to  the  party  at  the  date  of  the  approval  of  the  sentence  is,  m 
contemplation  of  law,  returned  from  tlie  appropriation  for  the  Army 
to  the  general  treasury  and  becomes  public  money,  and,  being  in  the 
Treasury,  cannot,  without  a  violation  of  Article  I,  section  9,  para- 
graph 7,  of  the  Constitution,  be  withdrawn  and  restored  to  the  party 
except  by  the  authority  of  Congress.     R.  23,  642  and  659,  Aug.,  1867; 


PAY  AND  ALLOWANCES  III  C  1  g  (l).  869 

28,  63,  Aug.,  1868,  and  567,  May,  1869;  29, 139,  July,  1869;  C.  11594, 
Nov.  13,  1901;  I4O6S,  Jan.  29,  1903;  15510,  Nov.  16,  1903. 

Ill  C  1  g  (1).  Held  that  money  accruing  from  forfeitures  due  to 
sentences  in  the  cases  of  soldiers  of  the  Volunteer  Army  should  be 
left  in  the  Treasury  and  credited  to  the  pay  of  the  Army.  C.  7696, 
Feb.  19,  1900. 

Ill  C  2  a.  A  soldier  does  not  forfeit  clothing  money  due  him  at 
date  of  discharge,  if  discharged  without  honor,  except  for  fraudulent 
enUstment.     C.  2107,  Mar.,  1896;  18398,  Aug.  6, 1905. 

Ill  C  2  b.  A  court-martial  is  called  into  existence  for  the  purpose 
of  enforcing  military  discipline  and  not  to  determine  questions  of 
civil  liabihty ;  and  its  findings  are  not  conclusive  as  to  such  questions. 
In  accordance  with  this  view  this  office  has  held  that  the  acquittal 
of  a  soldier  of  desertion,  including  the  criminal  offense  of  absence 
without  leave,  did  not  prevent  the  forfeiture  of  pay  and  allowances 
accruing  during  his  absence  as  prescribed  by  the  regulations;  i.  e., 
that  the  acquittal  was  not  conclusive  as  to  the  civil  obligation  under 
his  contract  of  enlistment  to  furnish  his  personal  services  in  con- 
sideration of  his  pay.     C.  12168,  Mar.  6,  1902. 

Ill  C  2  c  (1).  held  that  one  who  had  entered  the  Army  by  a 
fraudulent  enUstment  was  not  entitled,  upon  his  summary  discharge 
without  honor  on  the  discovery  of  the  fraud,  to  be  paid  the  travel 
allowance  provided  by  section  1290,  R.  S.  The  principle  that  the 
party  to  a  contract,  against  whom  a  fraud  is  committed  by  the  other 
party  in  entering  into  the  contract,  may  at  once  rescind  the  contract, 
the  defrauding  party  thereupon  losing  all  rights  and  profits  under 
it,  applies  equally  to  contracts  of  enlistment.     P.  54,  373,  July,  1892. 

Ill  C  2  c  (2).  In  the  case  of  a  soldier  discharged  without  honor 
from  the  Army  because  of  his  punishment  by  a  civil  tribunal,  Jield 
(in  view  of  the  rulings  of  the  comptroller  on  the  point)  that  the 
soldier  may  be  considered  as  having  been  discharged  '^b^  way  of 
punishment  for  an  offense"  within  the  meaning  of  section  1290, 
K.  S.,  and  of  the  act  of  March  2,  1901,  which  provides  that  the 
soldier  so  discharged  shall  not  receive  travel  pay.  0. 14937,  July  15, 
1903;  14642,  May  22,  1903. 

Ill  C  2  c  (3) .  Discharges  are  granted  by  way  of  favor,  upon  the 
application  of  the  soldiers  eligible  therefor  and  subject  in  each  case 
to  a  waiver  of  travel  allowances.^  C.  15176,  Sept  4, 1903.  Held  that 
this  waiver  could  legally  be  required;  and  that  the  soldier,  by  apply- 
ing for  the  discharge,  consents  to  such  waiver  as  a  condition  upon 
which  the  discharge  will  be  granted.  0.  1862,  Dec,  1895.  As  the 
discharge  can  be  granted  only  by  the  President  or  Secretary  of  War, 
a  department  commander  has  no  authority  to  refuse  to  forward  an 
apphcation  therefor.  C.  203,  Aug.,  1894;  9336,  Nov.  26,  1900; 
14002,  Jan.  19,  1903;  14937,  July  11,  1903. 

Ill  C  2  c  (4) .  A  soldier  sentenced  to  dishonorable  discharge  only, 
being  discharged  by  way  of  punishment  for  an  offense,  forfeits  his 
travel  pay  under  section  1290,  R.  S.,  by  operation  of  law.  O.  3608, 
Nov.,  1897. 

^  See  II  Comp.  Dec,  252;  VI  id.,  326.  See  par.  8,  G.  O.  90,  War  Department, 
series  1911,  which  reads:  "  Discharges  by  favor,  as  distinguished  from  purchase,  are 
illegal,  and  will  not  be  granted  except  under  the  conditions  set  forth  in  par.  9  of  this 
crier."  Soldiers  discharged  under  par.  9,  G.  O.  90,  1911,  are  entitled  to  travel  pay. 
VI  Comp.  Dec,  686. 


870  PAY  AND  ALLOWANCES  III   C   2  d. 

Ill  C  2  d.  Wliere  a  revolver  was  lost  by  a  soldier,  and  he  was 
acquitted  by  a  court-martial,  but  the  findings  were  disapproved; 
held,  that  the  cost  of  the  revolver  should  be  charged  against  his  pay. 
C.  221U,  Oct.  15,  1907. 

1  III  D  1.  The  ovljjine  known  to  military  law  is  the  fine  authorized 
to  be  imposed  by  way  of  punishment  by  sentence  of  court-martial. 
No  military  commander  is  empowered  under  any  circumstances  to 
impose  a  fine  upon  an  officer  or  a  soldier.     R.  8,  444,  ^<J^y,  1864. 

Ill  D  2.  Fines  adjudged  by  courts-martial  accrue  to  the  United 
States.  A  court-martial  can  not  impose  a  fine  for  the  benefit  of  an 
individual,  nor  can  a  fine  adjudged  m  general  terms  be  in  any  i)art 
appropriated  for  the  benefit  of  an  individual  by  executive  authority. 
R,  7,  5^,  648,  Jan.  and  May,  1864;  8,  632,  June,  I864.  A  court- 
martial,  in  sentencing  a  party  to  pay  a  fine,  has  no  authority  to 
direct  the  collection  of  the  same  by  a  provost  marshal,  or  by  any 
compulsory  process:  such  a  direction  added  in  a  sentence  should  be 
disregarded  as  mere  surplusage.     R.  8,  298,  Apr.,  I864. 

Ill  D  3.  A  fine  is  distinguished  from  a  '' stoppage."  The  former 
is  a  punishment  and  therefore  imposable  only  by  court-martial.  The 
latter  is  a  charge  on  account,  being  an  enforced  reimbursement,  by 
means  of  a  debit  entered  against  the  pay  of  the  party  on  the  rolls, 
either  for  an  amount  due  the  United  States — as  for  the  value  of 
public  property  lost,  extra  clothing  issued,  reward  paid  for  appre- 
hension as  a  deserter,  etc.,  or  for  an  amount  due  an  individual  and 
expressly  authorized  by  law  or  regulation  to  be  thus  charged.  R.  35, 
457,  July,  1874;  P-  ^8,  88,  Jan.  1890. 

Ill  El.  A  sentence  forfeiting  pay  can  be  remitted  only  as  to  pay 
not  due  and  payable  at  the  date  of  the  remission.  R.  1, 393,  Oct.,  1862; 
8,  392,  576,  June,  1864;  ^,  1^6,  May,  1864;  10,  676,  Dec,  1864;  ^5, 
372,  May,  1874;  50,  221,  Apr.,  1886;  P.  34,  334,  ^'^9-,  1^89.  Where 
a  soldier's  pay  has  been  forfeited  by  an  executed  sentence,  no  mere 
amendment  of  the  muster-roll  upon  which  the  same  has  been  noted 
can  operate  to  undo  such  forfeiture.  R.  30,  44 j  Sept.,  1869.  If,  how- 
ever, the  sentence  was  in  fact  illegal  and  void,  the  soldier  should  be 
credited  on  subsequent  rolls  with  the  forfeiture  as  having  been 
illegally  collected  and  the  amount  refunded  to  him.  0.  5392,  Nov., 
1898;  11594,  Nov.  13,  1901;  11742,  Dec.  11,  1901;  11786,  Dec.  23, 
1901;  11576,  Jan.  8, 1902;  12596,  May  10,1902;  16955,  Sept.  28, 1904. 

Ill  F  1.  The  sentence  of  dismissal  in  the  case  of  a  Wes't  Point 
cadet  was  commuted  to  suspension.  Held,  that  no  forfeiture  of  pay 
was  involved  in  the  suspension.^     C.  3226,  May  26,  1897. 

CROSS   REFERENCE. 

Cadets  not  entitled  to  mileage See  Army  I  D  5, 

Deserter See  Discharge  II  B  2. 

Forage  to  retired  officers See  Army  I  G  3  b  (2)  (c 


Medical  Reserve  Corps  officer See  Army  I  G  3  d  (3)  (c)  [2]. 

Mileage  to  retired  officers See  Retirement  I  M  to  N. 

Militia See  Militia  VI  B  2  h. 

Officer  fails  on  promotion See  Retirement  I  B  6  c  (2) ;  (3). 

Officer  wholly  retired See  Retirement  I  N  3. 

Retired  officer  on  college  duty See  Retirement  I  K  3  a. 

Soldier  while  absent See  Absence  II  B  8  a. 

Desertion  XIV  A  1, 


See  32  Ct.  Cls.,  139. 


paymaster's  clerk — PENSION.  871 

PAYMASTER'S    CLERK. 

Appointment  of. See  Office  III  E  2. 

PEACE    OFFICER. 

Arrest  of  deserters See  Desertion  III  A  to  H;  V  A  to  G. 

PENAL   STATUTE. 

Forty-eighth  article  of  war See  Articles  of  War  XL VIII  D. 

PENALTIES. 

See  Contracts  XIX  to  XX. 

PENALTY   ENVELOPES. 

Use  of. See  Communications  II  A  to  B. 

IJse  of,  by  militia See  Militia  XIV  A. 

PENITENTIARY. 

Clemency See  Articles  of  War  CXII  Ale  (1). 

Confinement  in See  Articles  of  War  XCVII  A  to  E. 

Desertion  X  C  1;  2. 

Delivery  of  prisoner  to See  Discipline  XVII  A  4  h  (1). 

Discharge  vnthouthonorfor  incarceration  in. See  Discharge  III  F  1. 

Mitigation  of  confinement  in See  Discipline  XIV  H  3. 

Sentence  to  confinement  in See  Discipline  XIV  E  9  a  (17);  g;  g  (1). 

PENSION. 

I.  ARMED  QUARTERMASTER'S  EMPLOYEES. 

A.  In  Philippines. 

1.  Did  not  have  pensionable  status Page  871 

n.  PENSION  MONEY. 

A.  Before  Payment  Not  Subject  to  Attachment. 

I  A  1.  During  the  Pliilippine  insurrection  a  force  of  armed  Filipinos 
was  formed  in  the  Quartermaster's  Department,  which  in  the  case 
of  certain  organizations  was  called  Macabebe  Scouts.  Held  that 
this  was  an  organization  of  civilians  and  that  they  had  no  pensionable 
status,     a  11981,  Feb.  27,  1902,  and  Apr.  29,  1903. 

II  A.  Held  that  pension  money  is  exempt  from  attachment  or 
seizure,  under  Section  4747  R.  S.,  before  payment  to  the  pensioner, 
but  no  such  exemption  exists  in  favor  of  property  purchased  with 
pension  money.  ^  C.  6398,  May  12,  1899;  6799,  July  29,  1899; 
7823,  Mar.  17,  1900;  6430,  Dec.  5,  1908;  24346,  Jan.  19,  1909. 

CROSS  reference. 

Administration  of  pension  laws See  Enlistment  I  D  3  e  (1). 

Retired  officer  as  counsel  in  case  of See  Retirement  I  G  2  a. 

Taxation  of  pensioner See  Tax  I  to  II. 

Waiving  right  to See  Office  III  A  5. 

1  See  Mcintosh  v.  Aubrey,  185  U.  S.,  122. 

Memo. — In  some  States  lands  purchased  out  of  pension  money  are  exempt  from 
taxation,  but  there  is  no  such  exemption  under  any  law  of  the  United  States. 


872  PER  DIEM   EMPLOYEE PHILIPPINE   ISLANDS. 

PER  DIEM  EMPLOYEE. 

See  Civilian  Employees. 
PERJURY. 

Evidence  of. See  Discipline  XI  A  9;9  a. 

Proof  of. See  Discipline  XV  F  1. 

Under  fifty-ninth  article  of  war See  Articles  of  War  LIX  I  3. 

PERMIT. 

Structures,  etc See  Navigable  Waters  V  to  VI. 

PERSONAL  PROPERTY. 

See  Public  property  I  A  3. 
Public,  can  not  he  loaned  by  Secretary  of  Tfar .  See  Public  property  I  C. 
Public,  title  to  after  treaty  of  peace See  War  I  D  1, 

PERSONAL  SERVICE. 

Under  S709,  Revised  Statutes See  Contracts  VII  D. 

PERSUADING  TO  DESERT. 

See  Article  of  War  LI  A. 

PETITION. 

By  officer See  Discipline  II  A  1  d. 

PHILIPPINE  CONSTABULARY. 

See  Territories  IV  B  to  C. 

Command  by  chief  of See  Army  II  G  1  a;  2  a  (1). 

Officers See  Retirement  II  A  3  a. 

PHILIPPINE  INSURRECTION. 

See  War  I  B  3;  F  3. 

PHILIPPINE  ISLANDS. 

See  Territories  IV  to  V. 

Civil  courts,  jurisdiction  of See  Articles  of  War  LVIII  D. 

Civil  government,  duty  with See  Absence  I  B  1  g  (3). 

Civil  governor See  Army  II  G  2  a  (1). 

Civiloffice See  Office  IV  A  2  d  (2)  to  (3);  e  (6)(6)to 

(7). 
Colleges  in See  Military  instruction  II  B  1  d. 

See  Retirement  I  K  3  b. 

Enemy's  property See  Claims  VII  A. 

Extradition  from See  Extradition  IV. 

Fifty-fourth  article  of  war See  Articles  op  War  LIV  G. 

Military  governor See  Claims  VII  E. 

Natives See  Enlistment  I  C  1  f . 

Naturalization  in See  Alien  III. 

Order  in See  Army  II  G  to  H. 

Philippine  bonds See  Bonds  I  H  4. 

Sureties  for  contracts See  Bonds  V  J, 

Transport See  Retirement  II  A  4  b  (2). 


PHILIPPINE   SCOUTS POLICY.  873 

PHILIPPINE  SCOUTS. 

See  Army  II  to  III. 

Certificate  of  merit See  Insignia  op  merit  II  H  2. 

Chief  of  Constabulary See  Army  II  G  1  a;  2  a  (1). 

Death See  Gratuity  I  B  3  a. 

Desertion See  Desertion  XIV  B  1. 

Insane See  Discharge  XIII  D  4  b. 

Army  II  G  1  a. 

Not  foreign  service See  Retirement  II  A  4  c. 

Officer See  Retirement  I  B  5  a;  II  A3;  D  2. 

Part  of  Regular  Army See  Army  I  G  2  a  (2)  (a). 

Articles  op  War  LXXVII  A  1. 

Discharge  VI  D  6. 
Reenlistment  bonus See  Pay  and  allowances  I  C  5  c. 

PIRATES. 

Recovery  of  'property  from  salvage See  Claims  VI  A. 

PLEA  IN  ABATEMENT. 

See  Discipline  II  D  17  a;  H  2;  IX  F  2  a; 
XIVE7C. 
Incorrect  description See  Discipline  XIV  E  7  a. 

PLEA  IN  BAE. 

Civilian  status See  Discharge  XIII  D  6b. 

Desertion  cases See  Articles  op  War  XLVIII  F. 

Pardon See  Discipline  IX  F  1  a  to  b. 

Statute  of  limitations See  Articles  op  War  CIII  B  . 

PLEDGE. 

Abstain  from  use  of  liquor See  Pardon  XV  A . 

Accompanying  resignation See  Office  IV  D  4. 

Violation  of. See  Articles  op  War  LXI  B  5;  LXII  D. 

POLICEMAN. 
Witness  fees  of. See  Discipline  X  I  8. 

POLICY. 

Character,  how  affected  by  trial See  Enlistment  I  D  3  d  (5). 

Civil  authorities,  turning  prisoners  over  to. .  See  Army  I  A  6. 

Civil  courts,  defence  of  officers See  Army  I  B  5  a. 

Collection  of  private  debts See  Private  debts  IV. 

Congressional  relief  for  officers See  Army  I  B  6  a. 

Counsel  for  accused  officers See  Discipline  V  G  6. 

Deserters,  reenlistment  of. See  Enlistment  I  D  3  c  (14). 

Discharge  II  B  2  a. 

Discharge  without  honor See  Discharge  III  B  ;  B  1  to  5a. 

Discharge  without  honor  not  to  be  given  after 

acquittal See  Discharge  III  B  4. 

Disaiarge  without  honor  not  given  after  trial 

on  issu£ See  Discharge  III  B  5. 

Enlistments^  unconditional See  Enlistment  I  A  6. 

Fraudulent  enlistments,  disposition  of.. .  .  .See  Enlistments  I  A  9  g  to  k. 
Judge  AdvocateGeneral  as  to  State  questions  .See  Army  I  G  3  a  (4)  (a)  [4]. 

Military  instruction  of  civilians See  Retirement  I  K  3  c. 

Minor^  age  how  fixed See  Discharge  XII  B  1, 

Minors,  discharge  of. See  Discharge  XII  D  1 ;  2. 

Neutrality  cooperation  with  State See  Army  II  K  1  g  (1);  (2). 

Reenlistment  of  deserters See  Discharge  II  B  2  a. 

Sentence  set  aside See  Discharge  III  B  5  a. 

Trial  in  case  of  homicide See  Discipline  XVII  A  4  g  (6). 

United  States  in  Philippine  Islands See  Claims  VII  A. 


874  PORTO   RICO POST   EXCHANGE. 

PORTO  RICO. 

Civil  office  in See  Office  IV  A  2  e  (6)  (a). 

Colleges See  Military  Instruction  II  Big. 

Retirement  I  K  3  c. 

Funds  of. See  Claims  V . 

Military  commission,  confinement  of  natives. See  Appropriations  LXI. 

Military  government  customs See  Public  Money  I  I. 

Natives,  appointment  of. See  Office  III  A  1  c  (2). 

Provost  courts See  War  I  C  8  a  (4). 

Publicdomain See  War  I  C  6  c  (3)  (/)  [1]. 

Public  property See  War  I  D  1. 

Punishment See  Discipline  XII  B  2  e. 

Regim£ntal  appointments See  Army  I  G  2  a  (1)  (a);  (b). 

Office  III  A  1  c  (1). 
Sovereignty  over See  Enlistment  I  C  1  e  (1). 

POSSE  COMITATUS. 

See  Army  II  F;  I  1. 
Alaska See  Territories  III  B. 

POST  COMMANDER. 

Church,  can  not  require  attendance  at See  Articles  of  War  LII  A. 

Civilians See  Command  V  A  2  a;  3  a;  b:  c;  c  (1):  d 

(1);  f;  g;  8. 

Discipline  XVII  A  4  g  (4). 

Public  Property  II  B  3  a. 
Death  of  officer  or  soldier See  Articles  of  War  CXXVII  A. 

Command  V  A  7. 

Duty,  always  on See  Articles  of  War  XLVIII  B  1. 

Exceeds  authority See  Command  V  A  2  e;  f  4. 

Fifty-fourth  article  of  war See  Articles  of  war  LIV  A  to  LI  V  H  2. 

Fifty-ninth  article  of  war See  Articles  of  War  LI^J^  A  to  L  2. 

General  court-martial,  authority  over See  Command  V  A  4;  5. 

Joint  encampment See  Articles  of  War  CXXII  B. 

Leave,  granting  of See  Absence  I  B  1  c  (1). 

Command  V  A  1  b. 

Mitigation  by See  Articles  of  War  CXII  E. 

Officers,  relieved See  Absence  I  B  1  e. 

Command  V  A  1  a. 

Post  exchange  council See  Government  Agencies  II  J  3. 

Privileges  refused  by See  Command  V  A  2  a. 

Saloons,  etc See  Command  V  A  2  b. 

Sentence,  suspension  of. See  Discipline  XVII  A  4  e. 

Sick,  control  over See  Command  V  A  2  d. 

Summary  court See  Discipline  XVI  E  to  F. 

Telegrams See  Communications  III  A. 

Travel  orders  by See  Command  V  A  1  c. 

Warrant  of  arrest,  receipt  of. See  Articles  of  War  CII  I. 

Writ  of  habeas  corpus,  receipt  of See  Command  V  A  6  a;  b;  b  (1);  (1)  (a). 

POST  COMMISSARY  SERGEANT. 

Summary  discharge  of See  Discharge  XXV  A. 

POST  EXCHANGE. 

See  Government  agencies. 

Appropriation  for See  Appropriations  XXIX. 

Contracts  by See  Government  agencies  I  E. 

Debt  to See  Articles  of  War  LXII  D. 

Laundry  work See  Contracts  VII  I. 

Library  books See  Public  property  IX  A  3  a. 

Militia See  Militia  XV  to  XVI. 

Reimbursement  by  retired  soldier See  Retirement  II  C  2. 

Stoppage  of  pay  to  reimburse See  Government  agencies  I  B. 


POST  HOSPITAL — PRIVATE   CORRESPONDENCE.  875 

POST  HOSPITAL. 

See  Army  I  G  3  d  (8)  to  H. 

POST  LIBRARY. 
Books  for See  Public  property  IX  A  3  a. 

POSTMASTER. 

Enlisted  man  as See  Army  I  E  3  a  (1). 

Oath  by See  Office  III  A  8  a  (2). 

Witness  fees  of See  Discipline  X  I  9. 

POST  NONCOMMISSIONED  STAFF  OFFICER. 

See  Army  I  E  2  a;  b;  c. 
Summary  discharge  of See  Discharge  XXV  A. 

PRACTICE  MARCH. 
Evasion  of. See  Articles  op  War  XXXII  C. 

PRESENT. 

Acceptance  of,  by  officer See  Army  I  C  4. 

PRESIDENT  OF  COURT-MARTIAL. 

See  Discipline  VI  G  1  to  3;   VII  C  2;   IX 
LI. 
Record  corrected  oy See  Discipline  IX  N  6. 

PRESIDENT  OF  UNITED  STATES. 

As  Commander  in  Chief. See  Army  I  A  to  B. 

As  convening  authority See  Discipline  III  B  to  C. 

Disrespect  to See  Articles  of  War  XIX  A. 

As  Reviewing  Authority See  Discipline  XIV  H  to  I. 

Pardon  by See  Pardon  I  to  II. 

PREVIOUS  CONVICTION. 

See  Articles  op  War  LXXXIV  C  3. 

Board  of  officers See  Discharge  III  C. 

Evidence  of. See  Discipline  XII  B  1  to  2. 

Of  desertion See  Desertion  X  B. 

PRISONER. 

Counsel See  Command  V  A  5. 

Illegally  released See  Discipline  XIV  G. 

Interned See  Army  II  K  1  h  (1). 

PRISONER  OF  WAR. 

See  Claims  VIII. 

See  War  I  C  11  to  12. 

Abuse  of. See  War  I  C  8  a  (3)  (c?)  [5]. 

Charge  of  desertion  removed See  Desertion  XVI  C  1. 

Enlistment  of. See  Desertion  I  C  2. 

Muster  out  of. See  Discharge  XIII  F. 

Volunteer  Army  IV  D  1  a  (4)  (c). 

Officer,  dismissal  of. See  Office  I V  E  1  a. 

Trial  by  military  commission See  War  I  C  8  a  (3)  (6)  [2];  (c)  [1]  [a]. 

PRIVATE  CORRESPONDENCE. 
Evdience  of See  Discipline  XI  A  17  6  (1)  (a). 


8V6  PBIVATE  DEBT:    SYNOPSIS. 


PRIVATE  DEBT. 


I.  DISTINGUISHED  FROM  DEBT  TO  UNITED  STATES Page  876. 

n.  STOPPAGE  OF  PAY  FOR— ACT  OF  JULY  16,  1892 Page  877. 

m.  WAR  DEPARTMENT  WILL  NOT  PROTECT  OFFICERS  AND  SOL- 
DIERS AGAINST  SUITS  TO  COLLECT  PRIVATE  DEBTS.  COUNSEL 
NOT  FURNISHED  TO  RESIST  EXECUTION  ALTHOUGH  JUDG- 
MENT ARISES  OUT  OF  OFFICIAL  CONDUCT. 

IV.  PROCEDURE  ON  COMPLAINT  OF  FAILURE  TO  PAY Page  878. 

V.  JUDGMENT  CONCLUSIVE  AS  TO  INDEBTEDNESS Page  879. 

VI.  DEBTS  INCURRED  BEFORE  ENTERING  SERVICE. 
Vn.  WHEN  LIST  OF  PRIVATE  DEBTS  MAY  BE  REQUIRED  OF  OFFICER. 
Vm.  OFFICERS  MAY  NOT  APPLY  MONEY  OF  SOLDIER  IN  THEIR  CUS- 
TODY TO  HIS  PRIVATE  DEBTS Page  880. 

IX.  ARREST  OF  SOLDIER  ON  MESNE  PROCESS,  ETC.    SECTION  1237, 

REVISED  STATUTES. 
X.  DEBTS  OF  CIVILIAN  EMPLOYEES. 
XI.  EXEMPTION  FROM  ATTACHMENT  OR  EXECUTION Page  881. 

I.  By '  'private  indebtedness  "  is  meant  an  indebtedness  to  a  private 
creditor  as  distinguished  from  an  indebtedness  to  the  United  States  or 
to  an  agency  or  instrumentality  of  the  United  States.  The  fact  that  all 
parties  connected  with  the  alleged  indebtedness  are  members  of  the 
Army  does  not  alter  the  private  character  of  the  indebtedness.  0. 
14-438,  June  29,  1910.  The  fact  that  the  indebtedness  has  grown  out 
of  the  relations  of  the  military  service  does  not  alter  the  private 
character  of  the  indebtedness,  as,  where  a  discharged  soldier  regularly 
assigned  his  final  statements,  which  upon  presentment  for  payment 
were  found  to  call  for  more  than  was  in  fact  due,  and  the  soldier 
reenlisted.  Held,  that  the  difference  between  the  proper  amount 
which  was  paid  and  the  amount  erroneously  called  for  on  the  final 
statements  was  not  an  indebtedness  owing  by  the  soldier  to  the  United 
States,  and  the  pay  of  the  soldier  can  not  be  stopped  to  satisfy  it. 
C.  13604,  Mar.  20,  1903;  22247,  Oct.  24, 1907.  So  where  a  discharged 
soldier  regularly  assigned  his  final  statements,  which  upon  present- 
ment for  payment,  were  found  to  call  for  more  than  was  in  fact  due, 
lield,  that  any  claim  growing  out  of  the  fact  that  the  officer  signing 
the  final  statements  made  erroneous  entries  on  them  was  not  a  claim 
in  favor  of  the  United  States,  but  was  a  private  claim  in  favor  of  the 
assignee.    C.  13604,  Aug.  17,  1911. 

In  the  following  instances  it  was  held  that  the  indebtedness  was  a 
private  indebtedness  for  the  satisfaction  of  which  the  officer's  or 
soldier's  pay  could  not  be  stopped  or  diverted.  A  claim  by  a  wife 
against  her  husband,  an  Army  officer,  for  support  of  herself  and 
children  {C.  26935,  July  18,  1910);  or  a  decree  for  alimony  against 
an  Army  officer  or  soldier  on  the  active  or  retired  list  (C.  3500,  Sept. 
9, 1897;  6882,  Aug.  15, 1899;  13439,  Oct.  14, 1902;  17915,  May  4,  1905; 
22358,  Dec.  5,  1907;  26991,  July  20,  1910) ;  13395,  Oct.  19, 1910;  or  a 
decree  for  alimony  against  a  soldier,  rendered  before  enlistment 
{C.  7635,  Feb.  3,  1900;  11383,  Oct.  16,  1901).  A  claim  by  the  wife 
based  on  a  formal  separation  agreement  duly  signed  by  an  Army- 
officer  and  his  wife,  whereby  he  agreed  to  pay  her  a  fixed  sum  peri- 
odically and  to  deposit  liis  pay  accounts  regularly  with  the  proper 
paymaster  with  an  indorsement  directing  the  paymaster  to  pay  nis 
wife  a  certain  sum  (the  reason  being  that  the  officer's  promise  in  the 

*  Prepared  by  Maj.  H.  M.  Morrow,  judge  advocate,  assistant  to  the  Judge  Advocate 
General,  United  States  Army. 


PRIVATE  DEBT  II.  877 

agreement  was  equivalent  to  no  more  than  an  acknowledgment  of  a 
private  indebtedness).  C.  26991,  July  22,  1910.  A  claim  against  a 
soldier  for  taxes  due  a  Russian  Commune  from  which  the  soldier  had 
emigrated.     C.  24922,  May  8,  1909. 

Pay  due  a  soldier  can  not  bo  stopped  to  reimburse  a  telegraph 
company  for  moneys  received  by  the  soldier  (a  sergeant  of  the  Signal 
Corps),  for  transmitting  private  messages  over  its  line,  the  same 
not  being  a  line  '* operated  by  the  United  States"  in  the  sense  of 
the  act  of  March  3,  1883  (22  Stat.  616),  and  the  indebtedness  of  the 
sergeant  therefore  being  to  the  telegraph  company  and  not  to  the 
United  States.     P.  61,  185,  Aug.  2^,  1893. 

Notwithstanding  that  an  officer's  mess  is  aided  by  an  allowance 
of  public  quarters  and  fuel,  such  a  mess  is  a  private  undertaking 
and  indebtedness  due  from  an  officer  can  not  bo  stopped  against 
his  pay.  C.  18016,  May  18,  1905.  Notwithstanding  that  the 
reguktions  for  the  government  of  the  Infantry  and  Cavalry  School 
provide  that  the  commandant  may  ''assign  an  officer  to  the  duty 
of  supervising  the  accounts  of  the  messes  established  for  the  accom- 
modation of  student  officers,"  it  appearing  that  such  messes  are  not 
operated  by  the  United  States,  and  that  no  Government  obligation 
is  incurred  in  respect  to  their  maintenance,  the  indebtedness  of  an 
officer  to  the  officers'  mess  is  a  private  indebtedness,  and  his  pay 
can  not  be  stopped  to  satisfy  such  indebtedness.  C.  22200,  Oct. 
22,  1909.  Notwithstanding  the  fact  that  a  laundry  at  a  post  is 
designated  "post  steam  laundry,"  and  is  operated  under  regula- 
tions of  the  War  Department  providing  for  proper  sanitary  super- 
vision, as  the  United  States  incurs  no  obligation  in  respect  to  its 
maintenance,  the  indebtedness  of  an  officer  to  the  laundry  is  a 
private  indebtedness  and  his  pay  can  not  be  stopped  to  satisfy  such 
mdebtedness.     C.  22200,  Oct.  22,  1907. 

II.  The  pay  of  an  officer  or  soldier  can  not  be  stopped  or  diverted 
for  the  payment  of  private  indebtedness  or  a  private  claim,  except 
as  provided  by  statute.  C.  5U6,  Dec.  10,  1898;  6103,  Mar.  23, 
1899;  6882,  Aug.  13,  1899;  13395,  Apr.  29,  1909.  The  Army  appro- 
priation act  of  July  16,  1892  (27  Stat.  177),  provides  that  ''the  pay 
of  officers  of  the  Army  may  be  withheld  under  section  1766,  R.  S., 
on  account  of  an  indebtedness  to  the  United  States  admitted  or 
sho^^^l  by  the  judgment  of  a  court,  but  not  otherwise  unless  upon 
a  special  order  issued  according  to  the  direction  of  the  Secretary  of 
War."  Held,  that  the  last  part  of  this  provision  (the  words  "unless 
upon  a  special  order  issued  according  to  the  direction  of  the  Secre- 
tary of  War")  was  to  be  construed  not  separately  but  in  connection 
with  the  former,  and  relates  only  to  stoppages  against  persons  in 
arrears  to  the  United  States,  and  could  not  be  interpreted  as  empower- 
ing the  Secretary  of  War  to  stop  the  pay  of  officers  or  the  Army  to  satisfy 
private  debts.     P.  6^,  154,  Mar.  13,  1894;  G.  7635,  Feb.  3,  1900. 

III.  Officers  and  soldiers  may  be  sued  in  the  civil  courts  by  their 
alleged  private  creditors  and  it  is  not  the  policy  of  the  War  Depart- 
ment to  afford  them  protection  against  such  suits.  P.  64,  63, 
Feb.  27,  1894;  C.  23624,  July  21,  1908;  20063,  Apr.  25,  1910.  After 
a  final  personal  judgment  has  been  rendered  against  an  officer  the 
War  Department  will  not  recommend  that  counsel  be  furnished  at 
the  Government  expense  or  that  other  affirmative  action  be  taken 
by  the  Department  to  enable  that  officer  to  resist  the  execution  of 


878  PEIVATE  DEBT  IV. 

the  judgment,  even  though  the  judgment  is  based  on  conduct  of  the 
officer  connected  with  his  official  position,  as,  for  instance,  where 
the  officer,  in  obedience  to  the  order  of  his  commanding  officer, 
removed  certain  trespassing  horses  from  the  reservation,  but  the 
owner  claimed  the  horses  were  removed  in  a  cruel  and  wanton 
manner,  thereby  damaging  the  animals,  and  the  jury  so  found. 
0.  22007,  Apr.  18,  1911. 

IV.  The  miUtary  authorities  will  not  compel  officei-s  and  soldiers 
to  pay  disputed  private  indebtedness  or  claims — that  is,  indebtedness 
or  a  claim  where  in  the  opmion  of  the  military  authorities  there  is  a 
genuine  dispute  as  to  the  facts  or  law,  nor  will  the  military  authori- 
ties attempt  to  decide  such  disputed  indebtedness  or  claims.  If  the 
indebtedness  is  disputed  the  creditor  should  resort  to  the  civil  courts 
to  establish  the  liability. 

If,  in  the  opinion  of  the  military  authorities,  the  facts  and  law  are 
undisputed  and  there  appears  to  the  military  authorities  to  be  a  pri- 
vate mdebtedness,  and  the  officer  or  soldier  does  not  claim  to  have  a 
legal  or  equitable  set-off  or  counterclaim  to  urge  against  it,  he  wiU 
be  advised  to  settle  it,  and  in  case  of  failure  to  do  so  as  rapidly  as  his 
financial  condition  permits  an  officer  may  be  brought  to  trial  if  his 
failure  is  considered  to  be  a  violation  of  the  sixty-first  ^  or  sixty-second 

^  In  U.  S.  -y.  Fletcher,  26  Ct.  Cls.,  541,  the  question  was  raised  by  counsel  as  to  the 
sufficiency  of  specifications  alleging  nonpayment  of  indebtedness  to  sustain  a  charge 
of  "conduct  unbecoming  an  officer  and  a  gentleman,  "  and  the  court  decided  that  this 
may  consist  in  refusing  to  pay  a  debt,  adding:  "It  must  be  confessed  that,  in  the  affairs 
of  civil  life,  and  under  the  rules  and  principles  of  municipal  law,  what  we  ordinarily 
know  as  fraud  relates  to  the  obtaining  of  a  man's  money,  and  not  to  refusing  to  pay 
it  back.  *  *  *  In  military  life  there  is  a  higher  code,  termed  honor,  which  holds 
its  society  to  a  stricter  accountability;  and  it  is  not  desirable  that  the  standard  of  the 
Ajmy  shall  come  down  to  the  requirements  of  a  criminal  code." 

"The  Secretary  of  War  does  not  undertake  the  collection  of  debts  due  private  per- 
sons from  officers  and  soldiers,  nor  to  require  a  preference  for  any  particular  creditor 
in  payment  in  such  cases.  His  aim  is  to  protect  the  character  and  standing  of  the 
Army,  and  to  eliminate  from  it  those  guilty  of  dishonorable  conduct.  Where  charges 
of  such  conduct  are  made  they  will  be  promptly  investigated,  and  where  statements 
of  nonpayment  of  debts  are  made  against  officers,  they  will  be  investigated  with  this 
end  in  view."  Ruling,  Secretary  of  War,  Nov.  18,  1897,  copy  filed  with  documents 
toC.  3649,  J.  A.  G.  O." 

Complaints  of  nonpayment  of  debts  due  from  officers  on  the  active  list  and  under 
the  control  of  department  commanders  are  in  practice  referred  for  the  "necessary 
action"  to  the  proper  headquarters  and  the  complainants  notified  of  the  above  ruling 
of  the  Secretary  of  War.  The  complaints  need  not  be  accompanied  by  or  be  in  the 
form  of  formal  charges.  A  statement  of  the  acts  and  conduct  complained  of  is  sufficient 
as  a  basis  for  investigation.  Formal  charges  can  be  prepared  when  as  a  result  of  the 
investigation  such  action  is  required. 

In  Cir.  47,  W.  D.,  July  16,  1910,  the  War  Department  announced  its  policy  as  to 
assisting  in  the  collection  of  private  debts  of  enlisted  men  as  follows: 

"In  view  of  the  fact  that  the  practice  by  dealers  of  selling  articles  of  merchandise 
to  enlisted  men  on  credit  burdens  the  War  Department  with  unnecessary  correspond- 
ence in  the  cases  of  nonpayment  of  the  indebtedness,  and  that  such  transactions,  which 
are  rapidly  increasing  in  number,  often  involve  enlisted  men  in  debts  which  they  can 
not  pay,  and  frequently  lead  up  to  desertion,  the  following  statement  of  the  policy  of 
the  department  with  respect  to  this  matter  is  published  for  the  information  and  guid- 
ance of  all  concerned : 

"The  department  will  no  longer  concern  itself  with  the  business  of  persons,  firms,  ol 
corporations  selling  merchandise  to  enlisted  men  on  credit,  and  all  communication^ 
with  respect  to  such  sales,  and  all  arrangements  looking  to  the  establishment  of  sucl 
business  relations,  must  be  had  with  the  commanding  officers  of  the  organizations  t( 
which  the  enlisted  men  belong.  The  War  Department  will  decline  to  assist,  bj 
answering  inquiries  or  otherwise,  in  securing  the  payment  of  obligations  of  this  char-j 
acter  that  are  incurred  without  the  previous  knowledge  and  consent  of  the  commandi 
ing  officers  of  the  organizations  to  which  the  debtors  belong." 


PRIVATE   DEBT  V.  879 

article  of  war,  and  a  soldier  may  be  tried  if  his  failure  is  considered  to 
be  a  violation  of  the  sixty-second  article  of  war,  but  no  action  will  be 
taken  by  the  military  authorities  to  enforce  payment.  If  the  facts 
and  law,  in  the  opinion  of  the  mihtary  authorities  are  undisputed, 
and  there  appears  to  the  mihtary  authorities  to  be  no  indebtedness, 
the  department  will  take  no  further  action.  C.  13047,  Aug.  21,  1902; 
1US8,  Apr.  6,  1908,  and  June  29,  1910;  13395,  June  26  and  July 
6,  1906;  20083,  July  30,  1906;  23286,  May  25,  1908;  20063,  Apr.  25, 
1910,  May  25  and  Dec.  11,  1911;  26991,  July  22,  1910,  and  May  23, 
1911;  13604,  Aug.  17,  1911.  Where  a  soldier  was  largely  indebted 
and  failed  to  pay  his  indebtedness  and  the  commanding  officer 
denied  the  soldier  all  pass  privileges  until  the  indebtedness  was  paid, 
field,  that  such  action  on  the  part  of  the  commanding  officer  consti- 
tuted an  attempt  to  enforce  payment  of  the  indebtedness  and  was 
contrary  to  the  policy  of  the  War  Department  and  such  action  should 
be  revoked.     C.  13395,  Aug.  18,  1910. 

V.  After  a  claim  against  an  officer  or  soldier  has  been  reduced  to  a 
final  personal  judgment,  if  no  proceedings  are  pending  to  set  it  aside 
it  will  be  considered  by  the  War  Department  as  an  indebtedness 
beyond  dispute.  0.  20063,  Apr.  25  and  May  4,  1910;  26858,  June  8, 
1910;  26991,  May  23,  1911.  An  explanation  of  the  nature  of  the 
judgment  claim,  and  such  defenses  to  the  merits  of  the  judgment 
claim  as  could  have  been  presented  to  the  court,  will  not  be  con- 
sidered by  the  War  Department  to  determine  whether  there  is  an 
indebtedness  in  fact,  the  judgment  being  deemed  conclusive  on  that 
point,  but  the  explanation  and  defenses  may  be  considered  to  deter- 
mine whether  the  failure  to  satisfy  the  judgment  properly  constitutes 
a  violation  of  the  sixty-first  or  sixty-second  article  of  war.  C.  9651, 
July  29, 1902;  13576,  Feb.  2,  1903;  14438,  Apr.  6, 1903;  15111,  Aug. 
17,  1903;  20063,  Apr.  25  and  May  4,  1910;  26858,  June  8,  1910; 
26991,  July  20,  1910.  No  distinction  will  be  made  between  judg- 
ments based  on  a  contract  and  those  based  on  a  tort.  C.  20063, 
May  4,  1910;  26858,  June  8,  1910. 

VI.  The  War  Department  will  not  make  private  indebtedness  ^  or 
an  irregular  transaction  of  an  officer  or  soldier  antedating  entry  into 
the  service  the  basis  of  charges,  but  if  conduct  since  entry  into  the 
service  in  respect  to  matters  antedating  entry  constitutes  a  mihtary 
offense  charges  may  be  preferred  on  account  of  such  conduct. 
a  15088,  Aug.  12,  1903;  13395,  June  23,^  and  Oct.  4,  1910.  A  dis- 
honorable failure  of  an  officer  since  entry  into  the  service  to  pay  pri- 
vate indebtedness  contracted  before  entry  may  properly  be  made  the 
basis  of  charges.     C.  19829,  Mar.  24,  1910. 

VII.  Where  the  failure  of  an  officer  to  pay  his  private  debts 
threatens  scandal  to  the  service  it  becomes  the  duty  of  the  officer's 
superiors  to  investigate  his  indebtedness  and  to  call  upon  the  officer 
for  information.  Under  such  conditions  the  officer  may  legally  be 
ordered  to  submit  to  superior  authorities  a  schedule  of  all  his  private 
indebtedness,  and  a  refusal  to  obey  the  order  will  constitute  a  viola- 
tion of  the  twenty-first  article  of  war.     C.  19525,  Apr.  13, 1906. 

^  Sec.  1237,  R.  S.,  provides  "No  enlisted  man  shall,  during  his  term  of  service,  be 
arrested  on  mesne  process,  or  taken  or  charged  in  execution  for  any  debt,  unless  it 
was  contracted  before  his  enlistment,  and  amounted  to  twenty  dollars  when  first 
contracted." 


I 


880  PBIVATE   DEBT  VIII. 

VIII.  Private  B  claimed  that  Private  A  owed  him  money.  Private 
A  was  discharged  without  paying  the  alleged  debt.  Subsequently 
Private  C  being  indebted  to  Private  A  gives  a  sum  of  money  to  the 
former  company  commander  of  Private  A  as  money  due  Private  A. 
The  company  commander,  without  the  consent  of  the  former  Private 
A,  pays  this  money  to  Private  B  to  apply  on  the  former  Private  A's 
alleged  indebtedness  to  Private  B.  Held  that  the  company  com- 
mander had  no  authority  to  adjudicate  and  settle  the  alleged  in- 
debtedness of  the  former  Private  A,  and  is  liable  to  him  for  the 
amount  paid  to  Private  B.  G.  1^39,  Apr.  6,  1903;  219^7,  Aug.  21, 
1907;  13395,  Sept.  3  and  Oct.  4,  1910.  So  where  a  company  com- 
mander took  the  money  of  a  soldier  of  his  company  at  the  pay  table 
and  applied  it  without  the  soldier's  consent  to  the  payment  of  certain 
alleged  indebtedness,  held  that  his  action  was  completely  without  the 
authority  of  law  and  he  would  be  Kable  to  the  soldier  for  the  money  so 
expended.    C.  13395,  Sept.  3,  1910. 

IX.  The  arrest  of  an  enlisted  man  for  a  contempt  in  not  complying 
with  the  legal  order  of  a  civil  court  to  pay  a  certain  sum  for  the  main- 
tenance of  his  wife,  is  a  legal  proceeding  and  not  within  the  prohibition 
of  section  1237,  R.  S.,  that  ''no  enlisted  man  shall,  during  his  term  of 
service,  be  arrested  on  mesne  process,  or  taken  or  charged  in  execution 
for  any  debt,  unless  it  was  contracted  before  his  enlistment  and 
amounted  to  twenty  dollars  when  first  contracted."  Such  an  arrest 
is  not  an  arrest  "on  mesne  process"  or  ''in  execution  for  a  debt," 
but  an  arrest  on  a  judgment  on  conviction  of  a  criminal  offense,^ 
analogous  to  an  imprisonment  duly  adjudged  on  conviction  of  an 
ordinary  crime  or  misdemeanor.  P.  51,  ^75,  Feb.  1,  1892.  There  is 
no  statute  like  1237,  R.  S.,  by  which  a  commissioned  officer  is  ex- 
empted from  arrest  for  debt,  where  such  arrest  is  otherwise  legally 
authorized.     R.  33,  8,  Mar.  23,  1872.^ 

X.  The  salary  of  a  civilian  employee  can  not  be  stopped  for  the 
payment  of  private  indebtedness  even  though  it  is  a  judgment  debt. 
C.  18830,  Nov,  14,  1905.  The  fact  that  the  indebtedness  has  grown 
out  of  the  relations  of  the  military  service  does  not  alter  the  private 
character  of  the  indebtedness,  as,  for  instance,  where  the  alleged 
indebtedness  consisted  of  the  claim  of  a  soldier  against  a  civilian 
employee  for  the  loss  of  the  soldier's  property  caused  by  the  official 
negligence  of  the  employee  (C.  26835,  June  4,  1910),  or  where  the 
indebtedness  consisted  of  a  claim  of  a  civilian  for  damages  against  the 
civilian  master  of  a  Government  tug  on  account  of  injury  caused  by 
gross  carelessness  of  the  master  in  handling  the  tug.  C.  24258,  Dec. 
28, 1908.  As  a  contract  surgeon  is  a  civilian  employee  his  pay  can  not 
be  stopped  to  pay  a  judgment  in  favor  of  a  private  person.  C.  23759, 
Aug.  24,  1908.  However,  if  the  circumstances  connected  with  the 
indebtedness  of  a  civilian  employee  make  his  honesty  questionable 

^  That  contempt  of  court  is  "a  specific  criminal  offense."  See  New  Orleans  v. 
Steamship  Co.,  20  Wall.,  387,  392. 

2  See  Moses  v.  Mellett,  3  Strobh.,  210;  McCarthjr  v.  Lowther,  3  Kelly,  397;  Ex  parte 
Harlan,  39  Ala.,  565.  But  note  in  this  connection  the  general  principle  of  public 
policy  by  which  public  servants  are  exempted  from  arrest  on  cm7  (though  not  on 
criminal)  process  while  on  public  duty.  United  States  v.  Kirby,  7  Wall.,  482; 
Coxson  V.  Doland,  2  Daly,  66. 


PRIVATE   DEBT   XI.  881 

action  may  be  taken  looking  toward  dismissal.*  C,  18830,  Nov.  I4, 
1905.  Where  a  civilian  loaned  money  to  a  Government  clerk  the 
money  to  be  loaned  by  the  clerk  to  his  fellow  employees  at  a  usurious 
rate  of  interest;  held,  that  the  loan  to  the  clerk  was  partly  on  the 
strength  of  the  clerk's  official  position  and  that  it  would  be  proper 
to  compel  the  clerk  to  repay  tlie  loan  in  installments  under  penalty 
of  dismissal  for  failure  to  do  so,  on  the  ground  that  the  evasion  of  his 
obligation  to  repay  the  loan  would  constitute  dishonesty  on  the 
clerk's  part.     C.  27856,  July  12,  1911. 

XI.  Held  that  the  personal  property  of  an  officer  required  to  be 
possessed  and  used  by  him  in  tne  regular  performance  of  his  military 
duties — as,  for  example,  his  sword,  or,  in  a  case  of  a  mounted  officer, 
his  horse — could  not  legally  be  seized  upon  an  attachment  or  execution 
issued  in  a  suit  brought  in  a  State  court.     R.  33,  8,  Mar.  23, 1872. 

Held,  on  the  analogy  of  the  principle  protecting  an  officer's  pay 
from  being  taxed  by  the  authorities  of  a  State  that  the  necessary 
baggage  of  an  officer  traveling  on  duty,  of  not  greater  amount 
than  allowed  by  the  Army  Regulations  to  be  transported  with  him  at 
the  pubUc  expense,  was  properly  exempt  from  attachment  in  a  suit 
for  a  private  debt.  An  officer,  however,  can  not  be  allowed  to  claim 
such  an  exemption  to  an  unreasonable  extent,  and  should  he  assume 
to  transport  or  procure  to  be  transported  with  him  any  considerable 
amount  of  baggage  greater  than  that  permitted  by  the  regulations, 
he  would  justly  become  liable  to  the  consequences  of  the  abuse  of  his 
privilege.  In  such  a  case  he  could  not  claim  to  be  sustained  by  the 
Government  in  resisting  an  attachment  or  execution  levied  upon  his 
effects.    R.  35,  m,  July  15,  1874- 

CROSS   REFERENCE. 

Court-martial  has  no  jurisdiction  over See  Pay  and  allowances  III  D  2, 

For  medical  attendance  while  absent See  Claims  VIII. 

Nonpayment  of See  Articles  op  War  LXI  B  9  a;  b;  9  c; 

LXII  D. 

Pay  not  stopped  to  satisfy See  Civilian  employees  II  A. 

Pay  and  allowances  III  B  4;  6. 
Retired  soldier See  Retirement  II  B  3  a. 

*  Under  date  of  Apr,  2,  1902,  the  Secretary  of  War  issued  the  following  circular: 

"Hereafter  the  War  Department  will  take  no  cognizance  of  a  debt  complaint 
against  an  employee,  so  far  as  the  creditor  is  concerned,  beyond  acknowledging 
receipt  of  his  communication.  Creditors  and  collectors  will  be  denied  access  to 
employees  for  the  purpose  of  presenting  or  collecting  claims  during  the  hours  set 
apart  for  the  transaction  of  public  business. 

"But  while  the  Department  will  not  permit  itself  to  be  used  as  a  collection  agency, 
it  will  not  harbor  any  one  who  contracts  a  debt  on  the  strength  of  his  official  position 
and  then  without  sufficient  excuse  neglects  to  make  payments,  and  upon  receipt  of  a 
debt  complaint  it  will  be  referred  to  the  proper  chief  of  bureau  for  a  report  in  writing 
from  the  employee  concerned,  which,  together  with  a  notation  of  the  conclusions 
reached  by  the  Department  in  the  matter,  will  be  made  part  of  the  official  record  in 
his  case. 

"An  employee  who  contracts  indebtedness  on  the  strength  of  his  official  position 
and  then  without  sufficient  excuse  or  reason  neglects  or  avoids  payment  thereon  will 
be  discharged." 

While  the  above  circular  does  not  in  words  rescind  a  former  circular  dated  May  19, 
1897,  issued  by  the  Secretary  of  War,  it  partially  covers  the  ground  covered  by  the 
former. 

31106°— 12 56 


882  PRIVATE   PROPERTY PROCLAMATION   BY  PRESIDENT. 

PRIVATE  PROPERTY. 

Abandoned See  Public  property  I  K. 

Capture  during  war See  War  I  C  6  c  to  d. 

Damage  to See  Appropriation  LVIII. 

Articles  op  War  LIV  to  LV. 

Militia  VI  B  2  m;  C  1  i;  j. 

Destruction  in  battle See  War  I  C  6  a  to  b. 

Escheat See  Army  I  G  3  d  (8)  (6). 

Exemption  from  attachment See  Pensions  II  A. 

Private  debts  XI. 

Finding See  Army  I  G  3  b  (2)  (a)  [3]  [d]. 

Forfeiture  of See  Discipline  XII  B  3  e  (3);  XIV  0. 

General  average  contribution See  Claims  VI  C. 

Larceny  of,  in  hospital See  Claims  IX;  XII  R. 

Medal  of  honor See  Insignia  of  merit  I  A  1  c. 

Navigable  waters See  Navigable  waters  I  A  1  a  (1). 

Occupation  of See  Claims  IV;  VII  C  to  D. 

Contracts  XXV. 

Prisoner's See  Discipline  XVII  A  4  g  (5). 

Recapture See  War  I  C  6  c  (3)  (e)  [1]. 

Reserved  for  public  use See  Public  property  III  A  2. 

River  and  harbor  work See  Navigable  waters  X  D  3. 

Salvage  of. See  Claims  VI  B. 

Soldier's  clothing  is  not See  Pay  and  allowances  II  A  3 a  (4)  (a); 

(c). 

Taxation See  Tax. 

Use  of,  during  war See  War  I  C  6  b  (1)  to  (2). 

Warrants  of  noncommissioned  officers See  Army  I  E  1  a. 

PRIVILEGE. 

Arrest  is  not See  Discipline  I  D  2. 

Contract  surgeon  purchasing  supplies See  Army  I  G  3  d  (4)  (c). 

Enlistment See  Enlistment  I  B  3  a;  D  3  c  (6). 

Leave  of  absence See  Absence  I  B  1  a;  C  1. 

Command  V  A  1  b. 

Medical  reserve  officers See  Army  I  G  3  d  (3)  (c)  [1]. 

National  Guard  customs See  Militia  III  J. 

Promotion See  Army  III  B  2. 

Trial  is  not See  Discipline  V  A. 

Withholding  of,  by  commanding  officer See  Discipline  XVII  A  2. 

PRIZE  MONEY. 

Not  authorized See  War  I  C  6  (c)  (3)  [c]. 

PROCEDURE  OF  BOARD. 
Retiring See  Retirement  I  B  1  d  to  e. 

PROCEDURE  OF  COURT  MARTIAL. 

See  Discipline  IX  to  X. 

PROCEDFRE  OF  MILITARY  COMMISSION. 

See  War  I  C  8  a  (3)  (d)  to  (e). 
PROCLAMATION  BY  PRESIDENT. 

Amnesty See  Pardon  XI. 

Lndian  War See  War  I  A  5  a. 

Declaration  of  martial  law See  War  I  E  1  b;  c  (1). 

Instances  of See  War  I  C  8  c  (1). 

Pardon  to  deserters See  Desertion  XV  B  to  C. 

Peace  in  Philippines See  War  I  F  3. 

Revocation  of  suspension  of  writ  of  habeas 

corpus See  War  I  C  12  a;  E  1  a. 

Riots See  Army  II  I  1. 

War  IB  5a  (1). 
Suspension  of  writ  of  habeas  corpus See  War  I  C  12;  E  1  e. 


PEOFIT — PUBLIC  money:  SYNOPSIS.  883 

PROFIT. 

Not  paid  on  claims See  Claims  VII  B  1. 

PEOHIBITION  LAW. 
Military  reservations See  Public  property  V  F  1  a  (1). 

PROMOTION. 

See  Office  III  B  to  C. 

Constructive  pardon See  Pardon  XV  C  1. 

Detailed  staff  officer See  Army  I  G  3  b  (4)  (6);  (c). 

Office  III  D  2  to  3. 

Disbursina  officer's  bond. See  Bonds  II  E;  I;  V  F. 

Heat  and  light,  increased See  Pay  and  Allowances  II  A  1  c  (5). 

Pardon See  Pardon  IV  A. 

Pay,  date  of  increased See  Pay  and  allowances  I  B  1. 

Suspension,  date See  Rank  V  C  to  D. 

PROPHYLACTIC. 

See  Articles  op  War  XXI  0  2  d. 

PROPERTY. 

Accountability See  Absence  I  B  1  e. 

Public  property  I  F  to  G. 

PROVOST  COURT. 

Under  military  government See  War  I  C  8  a  (4). 

PUBLIC  DOCUMENT. 

Original  charges See  Discipline  II  K  1. 

Printing See  Army  I  B  2  h  (1);  (2). 

PUBLIC  LANDS. 

Secretary  of  War,  authority  over See  Army  I  B  2  b  (3)  (a). 

Target  range  on See  Militia  VI  C  1  a. 

Transfer  of See  Army  I  B  1  a  (2). 


PUBLIC  MONEY. 


v 


I.  WHAT  CONSTITUTES  PUBLIC  MONEY?    SECTIONS  3617  AND  3618 
REVISED  STATUTES. 

A.  Funds  Received  for  Privileges  and  Facilities  Given  and  Sales 

OP  Public  Property  is  Public  Money Page  885 

B.  Funds  Received  as  Damages  is  Public  Money Page  886 

C.  Funds  Received  for  the  Use  of  a  Public  Dry  Dock  is  Public  Money. 

D.  Funds  Received  for  the  Use  of  a  Portion  of  the  Water  Front  of 

A  Reservation  is  Public  Money. 

E.  Money  Used  in  an  Attempted  Bribe  of  an  Employee  op  the  Gov- 

ernment AND  Subsequently  Seized  by  a  Government  Official 
IS  Public  Money. 

F.  Money  Received  From  Applicant  for  Enlistment  Who  Declined 

to  Enlist  is  Public  Money Page  887 


*  Prepared  by  Maj.  H.  M.  Morrow,  Judge  Advocate  and  assistant  to  the  Judge 
'Advocate  General  U.  S.  Army. 


884  PUBLIC  money:  synopsis. 

I.  WHAT  CONSTITUTES  PUBLIC  MONEY,  ETC.?— Continued. 

G.  Unexpended  Portion  of  Prison  Fund  not  Used  at  United  States 

Military  Prison  When  Prison  Turned  Over  to  Department  op 

Justice  is  Public  Money. 
H.  Money  Received  by  a  Government  Official  From  a  Private  Citizen 

AS  Compensation  to  Soldiers  for  Private  Work  Done  by  Them 

is  Not  Public  Money. 
I.    Money  Received  by  Army  Officers  Acting  as  Collectors  of  Cus- 
toms During  Military  Occupation  not  to  be  Accounted  for  as 

United  States  Funds. 
J.    When  Proceeds  of  Sale  of  Empty  Packages,  etc.,  That  Contained 

Supplies  are  to  be  Accounted  for  as  United  States  Funds. 
K.  Proceeds  of  Sale  of  Abandoned  Private  Property  Found  in  Gov 

ernment  Storehouse  is  Public  Money Page  888 

L.   Proceeds  of  Sale  of  Abandoned  Civilian  Clothing  of  Recruits 

is  Not  Public  Money. 
MT  Proceeds  From  Sale  of  Garbage  at  Post  Not  to  be  Accounted 

FOR  AS  United  States  Funds. 
N.  A  Fine  Paid  in  Accordance  With  the  Sentence  op  Court-martial 

IS  Public  Money. 
O.  Money  Found  on  the  Body  of  an  Unidentified  Man  Washed  Ashore 

ON  A  Military  Reservation  is  Public  Money. 
Act  of  May  1,  1888,  Relating  to  Funds   Arising   From  ''  Incidental 

Sources  "  at  Military  Academy Page  889 

n.  DISBURSING  OFFICERS. 

A.  Who  is  a  Disbursing  Officer. 

B.  Responsibility  of  Disbursing  Officer  for  Funds. 

1.  General  rule  as  to  responsibility. 

2.  Responsibility  for  forged  checks. 

3.  Responsibility  for  loss  of  check  in  mail Page  890 

4.  Responsibility  for  loss  of  funds  while  being  transported  for  pay- 

ment of  troops. 

5.  Responsibility  for  payment  ''without  due  care"  within  meaning 

of  paragraph  665,  Army  Regulations,  1910. 

6.  Responsibility  in  sending  check  to  contractor  by  mail. 

C.  Garnishment,  Attachment,  and  Injunctions  Relating  to  Payment 

OF  Public  Money. 

1.  Funds  in  hands  of  disbursing  oflficer  can  not  be  attached  or  gar- 

nisheed Page  891 

2.  The  purpose  of  an  attachment  can  not  be  accomplished  by  bringing 

suit  against  the  contractor  and  joining  the  disbursing  officer  as 
defendant Page  892 

3.  Purposes  of  attachment  can  not  be  accomplished  by  attaching 

public  funds  on  deposit  in  a  bank. 

4.  Subcontractor  can  not  control  disbursement  of  public  funds  by 

claiming  a  lien  on  money  due  the  contractor  and  filing  a  notice 
of  a  lien  with  the  disbursing  officer. 

5.  Subcontractor  can  not  control  disbursement  of  public  funds  by 

injunction  against  disbursing  officer. 

6.  Injunction  against  payment  of  public  money  by  disbursing  officer. 

D.  Disbursing  Officer  Should  Pursue  in  His  Own  Name  Remedies 

Relative  to  Public  Money Page  893 


PUBLIC   MONEY  I  A.  885 

n.  DISBURSING  OFFICERS— Continued. 

E.  Disbursing  Officer  Not  Entitled  to  Credit  for  Expense  of  Col- 
lecting Money  Due  on  a  Check  Drawn  on  Treasurer  of  Philip- 
pine Islands. 
in.  SECTION  3620,   REVISED  STATUTES,   AS  TO   DRAWING   CHECK 

ONLY  IN  FAVOR  OF  PERSON  TO  WHOM  PAYMENT  IS  MADE. 
IV.  SECTION  1766,  REVISED  STATUTES,  AS  TO  PAYING  PERSONS  IN 

ARREARS  TO  THE  UNITED  STATES. 
V.  WHERE  ACT  PROVIDES  THAT  MONEY  SHALL  BE  EXPENDED 
UNDER  DIRECTION   OF  THE   SECRETARY  OF  WAR,   SECRE- 
TARY MAY  COMMIT  DISBURSEMENT  TO  ANY  PROPER  PER- 
SON  Page  894 

VI.  LIABILITY  ON  PAYMASTER'S  CHECK  INDORSED  FOR  IDENTL 
FICATION  BY  PAYMASTER  AND  SUBSEQUENTLY  RAISED  IN 
AMOUNT  AND  CASHED  BY  AN   ASSISTANT  TREASURER  OF 
THE  UNITED  STATES. 
Vn.  ACT  OF  APRIL  20,  1874,  AS  TO  INSPECTION  OF  DISBURSEMENTS 
APPLIES    ONLY    TO    DISBURSEMENTS    OF    MONEYS    APPRO- 
PRIATED BY  CONGRESS. 
Vm.  SECTION    3651,    REVISED    STATUTES,    PROHIBITING    THE    EX^ 
CHANGE  OF  FUNDS  BY  DISBURSING  OFFICER. 
EC.  GOVERNMENT  ACCOUNTS  SHOULD  BE  KEPT  IN  UNITED  STATES 

CURRENCY  ONLY. 
X.  PARAGRAPH  694,  ARMY  REGULATIONS,  1910,  REQUIRING  THAT 
DAMAGE  TO  PUBLIC  PROPERTY  SHALL  BE  DEDUCTED  FROM 
OFFICERS'  PAY  DOES  NOT  PREVENT  OFFICER  VOLUNTARILY 
PAYING  THE  AMOUNT  OF  THE  DAMAGE  TO  A  DISBURSING 

OFFICER Page  895 

XI.  A  PROVISION  IN  A  LEASE  OF  GOVERNMENT  PROPERTY  WHERE- 
BY THE  LESSEE  MIGHT  MAKE  REPAIRS  AND  DEDUCT  THE 
COST  FROM  THE  RENT  IS  LEGAL. 

I  A.  Congress  is  vested  by  the  Constitution  with  the  exclusive 
power  of  disposition  of  the  personal  as  well  as  the  real  property  of  the 
United  States;^  and  by  section  3618,  R.  S.,  Congress  has  provided 
generally  that  the  proceeds  of  sales  of  personal  property  of  the  United 
States  shall  be  paid  into  the  Treasury  as  ''miscellaneous  receipts." 
Held  therefore  that  the  various  funds  received  at  military  posts,  on 
military  reservations  or  otherwise,  as  compensation  for  public  prop- 
erty occupied,  sold,  or  allowed  to  be  used  or  appropriated,  or  for  labor 
furnished,  or  privileges  or  facilities  conceded,  etc.  (such  as  moneys 
received  for  rents  of  fisheries,  for  fallen  timber,  for  surplus  lumber, 
manure,  etc.,  for  metalhc  cartridge  shells  collected  at  target  ranges, 
for  grazing  privileges,  brickyard  privileges,  quarrying  privileges,  the 
privilege  of  cutting  ice,  repairs  done  to  wagons,  shoeing  of  teams, 
tolls  for  teams  and  wagons  passing  across  reservations,  etc.),  were 
public  money  of  the  United  States,  to  be  accounted  for  to  the  Treas- 
ury, and  could  not  be  legally  retained  as  a  so-called  ''slush  fund, "  or 
disbursed  for  the  use  or  benefit  of  the  post  or  command.  Otherwise, 
as  to  the  proceeds  of  the  sale  of  the  savings  from  rations,  or  of  the  sale 
of  any  other  company  or  regimental,  etc.,  property.     And  money  paid 

^  ^  U.  S.  V.  NicoU,  1  Paine,  646  (Fed.  Cas.,  15,  879);  Seabury  v.  Field  McAllister  1; 
U.  S.  V.  Hare,  4  Sawyer,  653,669. 


886  PUBLIC   MONEY  I  B. 

to  a  band  for  playing  to  citizens,  being  for  a  quasi  personal  service, 
may  go  to  the  Dand  fund.  But  the  proceeds  of  all  fuhlic  property  of 
any  material  value, ^  including  all  moneys  exacted  or  received  from 
civilians,  are  to  be  turned  into  the  Treasury ;  and  otherwise  to  dispose 
of  them  is  embezzlement.  P.  43,  308,  Oct.  25,  1890;  R.  52,  138,  Feb. 
18,  1892;  C.  29123,  Oct.  16,  1911.  So  where  money  was  received  as 
fees  for  impounding  animals  which  were  found  astray  on  a  military 
reservation,  Jield  that  under  section  3618,  E,.  S.,  the  money  so 
received  should  be  deposited  in  the  Treasury,  and  this  should  be  the 
procedure  whether  the  funds  were  collected  in  the  operation  of  the 
State  law  or  in  the  operation  of  a  post  regulation  merely.  0.  23964, 
Oct.  15,  1908. 

I  B.  Where  an  officer  in  charge  of  certain  river  and  harbor  im- 
provements exacted  and  received,  from  certain  contractors  for  the 
work,  sundry  small  sums  of  money  claimed  as  due  from  them  as 
amercements  for  damage  or  loss  caused  by  them  to  the  United  States, 
lield  that  such  sums  were  public  money  of  the  United  States,  and  that 
a  failure  to  account  for  the  same  as  such  rendered  the  officer  liable  to 
a  charge  of  embezzlement.     P.  52,  137,  Feb.  18,  1892. 

The  commanding  officer  of  a  post  having  collected  from  a  private 
citizen  a  sum  of  money  for  damage  done  to  Government  property  at 
the  post  resulting  from  blasting,  he  proposed  to  deposit  the  nioney 
collected  to  the  credit  of  certain  specffic  appropriations  according  to 
the  damage  done,  tield  that  in  view  of  sections  3617  and  3618,  R.  S., 
the  monej  collected  could  not  be  so  deposited  or  expended,  but  should 
be  deposited  in  the  Treasury  without  deduction.^  G.  29225,  Nov,  9, 
9, 1911.  So  Tield  as  to  money  collected  on  a  contractor's  bond  as  dam- 
ages suffered  by  United  States  in  consequence  of  failure  to  complete 
the  contract.  C.  2527,  Aug.  19,  1896.  So  tield  as  to  a  stoppage  for 
loss  of  Government  propertj^.  G.  16445,  June  10, 1904.  So  held  as  to 
money  deducted  from  a  certified  check  to  cover  damages  to  the  United 
States.     G.  29402,  Jan.  27,  1912.  ^ 

I  C.  Held  that  the  amounts  received  from  private  parties  as  ''com- 
pensation" for  the  use  of  the  Des  Moines  Dry  Dock,  under  the  act  of 
August  2,  1882  (22  Stat.  204),  were  public  money,  and,  in  the  absence 
of  any  authority  for  the  purpose  in  this  act  or  other  statute,  could  not 
legally  be  expended  without  an  appropriation  by  Congress.  P.  39, 
395,  Mar.  13,  1890. 

I  D.  Held  that  money  received  as  rent  or  compensation  for  the  use 
of  portions  of  the  water  front  of  the  Fort  Canby  Reservation,  Wash., 
for  fish  traps,  was  public  money  and  was  to  be  accounted  for  as  such, 
and  that  it  could  not  legally  be  turned  into  the  ''mess  fund"  for  the 
purchase  of  vegetables  for  the  post.     P.  4O,  73,  Mar.  27,  1890. 

I  E.  Where  an  attempt  was  made  to  bribe  an  employee  of  the 
Government  and  the  mone}^  offered  as  a  bribe  came  into  the  posses- 
sion of  a  Government  official,  held  that  under  section  3617,  R.  S., 
which  provides  that  "the  gross  amount  of  all  moneys  received  from 
whatever  source  for  the  use  of  the  United  States    *     *     *     shall  be 

*  Pars.  690-1,  A.  R.,  1910,  provide  that  "Empty  barrels,  boxes,  crates  and  other 
packages,  together  with  metal  turnings,  ground  bone,  and  other  waste  products,  which 
accumulate  at  arsenals,  depots,  and  military  posts,  and  which  are  unsuitable  for  public 
service, "  shall  be  disposed  of  by  condemnation  and  sale. 

2 1  Comp.  Dec,  568;  VII  id.,  856;  XIII  id.,  484. 


i\ 


PUBLIC  MONEY  IF.  887 

paid  by  the  officer  or  agent  receiving  the  same  into  the  Treasury/' 
the  money  should  be  deposited  in  the  Treasury.  C.  11082,  Aug.  21, 
1901   and  Aug.  14,  1908. 

I  F.  Wliere  an  applicant  for  enlistment  declined  to  complete  the 
enlistment  at  the  end  of  the  period  of  probation  and  insisted  on 
depositing  with  the  recruiting  officer  a  sum  of  money  to  cover  the 
expense  to  which  the  United  States  had  been  subjected  on  his  account, 
Jieid  that  the  sum  so  deposited  should  be  turned  into  the  Treasury 
under  section  3617,  R.  S.     C.  12780,  June  27,  1902. 

I  G.  The  regulations  for  the  government  of  the  military  prison  at 
Fort  Leavenworth  provided  that  where  subsistence  was  drawn  the 
officer  in  charge  should  draw  such  articles  only  as  were  prescribed  in 
the  diet  for  prisoners  and  should  sell  to  the  commissary  the  rations 
not  drawn,  and  from  the  proceeds  form  a  prison  fund.  This  fund  was 
added  to  by  an  occasional  sale  of  products  of  the  farm  cultivated  by 
the  prisoners.  The  prison  was  turned  over  to  the  Department  of 
Justice  under  an  act  which  did  not  provide  for  transferring  the  prison 
fund.  Held  that  under  the  provisions  of  section  3618,  R.  S.,  the 
unexpended  portion  of  the  prison  fund  should  be  covered  into  the 
United  States  Treasury  as  miscellaneous  receipts.  C.  H81,  June  25, 
1895. 

I  H.  Where  a  private  citizen  by  blasting  near  a  military  post 
injured  a  telephone  line  at  the  post  and  emploved  certain  soldiers  to 
repair  the  same  outside  of  the  hours  in  which  they  were  employed  on 
military  work,  and  subsequently  deposited  with  the  commanding 
officer  a  sum  of  money  to  pay  the  soldiers,  held  that  the  money  should 
not  be  deposited  in  the  Treasury,  but  the  matter  should  be  treated  as 
a  private  transaction  and  the  money  turned  over  to  the  soldiers.*  C. 
29225,  Nov.  9,  1911, 

1 1.  Wliere  the  collectors  of  customs  (Army  officers)  under  the  mili- 
tary government  in  Porto  Rico  were  required  to  transfer  a  portion 
of  the  funds  to  subsistence  officers  to  be  expended  for  the  subsistence 
of  the  Army,  held,  that  the  collection,  transfer,  and  disbursement  of, 
and  accountability  for,  these  funds  were  under  the  control  of  the 
military  commander  or  military  governor  and  did  not  form  any  part 
of  an  appropriation  made  by  Congress  for  the  support  of  the  Army. 
Such  funds  should  not  therefore  be  taken  up  on  accounts  current  of 
disbursing  officers  in  connection  with  funds  from  such  appropriations. 
a  5464,  Dec.  12,  1898. 

I  J.  Paragraphs 683-684,ArmyRegulations,  1908  (690-691  of  1910), 
provide  that  empty  barrels,  boxes,  crates  and  other  packages,  to- 
gether with  metal  turnings,  scrap  metal,  ground  bone  and  other 
waste  products,  which  accumulate  at  arsenals,  depots  and  military 
posts,  and  which  are  unsuitable  for  the  miUtary  service,  will  be 
disposed  of  by  condemnation  and  sale.  Held  that  the  cost  of  pack- 
ages, etc.,  containing  stores  and  suppUes  procured  by  the  Subsistence 
Department  are  included  in  the  price  of  the  contents  which  are 
issued  or  sold.  As  those  to  whom  such  stores  are  issued  are  entitled 
to  them  as  articles  of  ration,  and  as  those  to  whom  they  are  sold 
are  entitled  to  them  by  reason  of  purchase,  the  ownership  in  the 
package,  etc.,  passes  with  the  title  to  the  contents.  But  where  grain 
IS  issued  not  to  officers  or  enHsted  men,  but  to  public  or  private 


k 


^  See  XIV  Cornp.  Dec,  310. 


888  PUBLIC    MONEY  I   K. 

animals  that  are  entitled  to  forage,  the  title  to  the  sack  will  not  pass, 
as  the  grain  is  not  issued  to  persons  as  rations.  However,  in  case 
there  is  an  authorized  sale  of  grain,  the  title  will  pass.  Therefore  in 
those  cases  where  the  title  to  the  package,  etc.,  does  not  pass,  the 
property  should  still  be  accounted  for,  but  in  other  cases  ir  sold  by 
those  to  whom  the  supplies  have  been  issued  or  sold  the  proceeds 
should  not  be  turned  into  the  Treasury.  C.  2211^8,  Feb.  13, 1908,  and 
Apr.  30, 1908. 

I  K.  Where  private  property  of  officers,  soldiers  or  civiUans  has 
been  stored  in  a  Government  storehouse  and  is  unclaimed  and 
apparently  abandoned  and  the  owners  or  their  relatives  or  repre- 
sentatives can  not  be  located,  and  a  period  of  time  in  excess  of 
that  prescribed  by  local  laws  for  the  recovery  of  personal  property 
has  elapsed;  or  where  the  owners,  their  relatives  or  representatives 
fail  to  remove  the  property  after  being  notified  to  do  so,  held  the 
property  may  be  sold  at  auction  and  the  proceeds  deposited  with  a 
paymaster.!  q^  21533,  May  21,  1907,  and  Aug.  31,  1909.  So  where 
the  effects  of  a  deceased  officer  contained  valuable  historical  data 
in  the  shape  of  an  account  of  certain  mihtary  operations  in  which  the 
deceased  had  participated,  and  efforts  to  locate  relatives  or  repre- 
sentatives of  the  deceased  had  been  unsuccessful,  and  a  private 
person  engaged  in  writing  a  history  of  the  events  recounted  in  the 
papers  desired  to  use  them,  recommended  that  the  papers  be  tempo- 
rarily transferred  to  him  for  that  purpose.     C.  21533,  Jan.  31,  1911. 

I  L.  Where  recruits  have  cast  off  and  abandoned  their  civilian 
clothing  to  such  an  extent  that  they  would  be  estopped  from  reclaim- 
ing it,  there  is  no  legal  objection  to  the  commanding  officer  directing 
that  such  clothing  should  be  collected  and  sold,  the  proceeds  to  be 
apphed  for  the  support  of  the  general  mess.  C.  22763,  Feb.  15, 1908. 
And  where  a  good  suit  of  civilian  clothing  was,  through  error,  sold  as 
authorized  above,  lield,  that  the  owner  could  properly  be  reimbursed 
from  the  general  mess  fund  which  had  received  the  benefit  of  the 
sale.     C.  27550,  Nov.  30,  1910. 

I  M.  Money  received  at  mifitary  posts  from  the  sale  of  garbage 
which  is  derived  principally  from  the  waste  products  of  the  company 
messes,  although  partly  including  waste  products  from  the  property 
of  the  United  States,  may  be  disposed  of  as  directed  by  the  com- 
manding officer,  and  the  proceeds  need  not  be  covered  into  the 
Treasury  of  the  United  States.     C.  23876,  Jan.  11,  1912. 

I  N.  A  fine  paid  by  an  Army  officer  in  accordance  with  sentence  of 
court-martial  is  public  money  and  should  be  deposited  in  accordance 
with  section  3617,  R.  S.     C.  3672,  May  9,  1900. 

1  O.  The  body  of  an  unidentified  man  was  washed  ashore  on  a 
military  reservation  over  which  the  State  had  ceded  exclusive  juris- 
diction. The  sum  of  $20  was  found  on  the  body  and  there  were  no 
expenses  connected  with  the  interment.  Held  that  the  money 
should  be  deposited  in  the  Treasury  as  required  by  section  3618, 
R.  S.2     C.  23692,  Aug.  4,  1908. 

^  If  the  property  is  considered  to  be  of  no  value,  it  is  the  practice  to  destroy  it  after 
a  year's  storage  if  the  owner,  his  relatives  or  representatives  fails  to  remove  it  after 
bein^  notified  to  do  so,  or  after  reasonable  efforts  the  whereabouts  of  himself,  his 
relatives  or  representatives  can  not  be  ascertained. 

2  The  Solicitor  of  the  Treasury  concurred  in  the  above  opinion.  See,  also,  19  Op. 
Atty.  Gen.,  247. 


PUBLIC   MONEY  I  P.  889 

I  P.  The  act  of  May  1,  1888  (25  Stat.  112),  relating  to  the  Military 
Academy,  provided  that  ''all  funds  arismg  from  the  rent  of  the  hotel 
on  the  acaclemy  grounds  and  other  mcidental  sources,  from  and  after 
this  date,  be,  and  are  hereby,  made  a  special  contingent  fund,  to  be 
expended  under  the  supervision  of  the  superintendent  of  the  acad- 
emy," etc.  Held  that  the  general  words  "and  other  incidental 
sources"  in  the  above  act  should  be  construed  to  apply  to  funds  aris- 
ing from  an  incidental  source  *  and  not  embracmg  funds  which  the 
law  expressly  requires  to  be  disposed  of  in  another  manner.  There- 
fore such  words  would  not  cover  the  proceeds  of  a  sale  of  condenmed 
property  purchased  from  appropriations  for  the  Military  Academy, 
and  such  proceeds  should  be  disposed  of  as  required  by  section  3618, 
R.  S.     C.  ^201,  Aug.  31,  1910. 

II  A.  Any  ofhcer  of  the  United  States  ''having  any  public  money 
intrusted  to  him  for  disbursement"  is  a  ''disbursing  officer"  within 
the  meaning  of  sections  3620  and  5488,  R.  S.  Held,  therefore,  that 
medical  officers  intrusted  with  moneys  for  disbursement  under  general 
orders  116  and  136,  Adjutant  General's  Office,  1898,  relating  to  the 
expenditure  by  medical  oflicers  of  the  appropriation  "Subsistence 
of  the  Ai-my"  for  the  diet  of  enlisted  men,  were  such  disbursing  offi- 
cers. C.  6269,  Nov.  7,  1898.  But  held  that  the  moneys  received  by 
the  quartermaster  m  charge  of  a  United  States  transport  from  parties 
traveling  thereon  for  meals  furnished  them  can  be  applied,  under 
section  3618  R.  S.,  and  the  act  of  March  3,  1875  (18  Stat.  410),  to 
the  purchase  of  fresh  supplies.^     C.  60^8,  Oct.  6,  1898. 

II  B  1.  A  paymaster's  responsibility  for  public  funds  intrusted  to 
him  continues  until  such  funds  have  been  disbursed  or  possibly  until 
the  loss  of  them  can  be  fixed  on  another  officer  or  soldier  and  stopped 
against  his  pay.  If  a  paymaster  loses  a  portion  of  his  funds,  he  is  not 
thereby  relieved  of  his  responsibility  as  to  the  money  lost  even  though 
the  loss  be  through  no  fault  of  his  own.^     C.  2304,  May  19,  1896. 

II  B  2.  A  disbursing  officer  who  pays  out  money  of  the  United 
States  upon  vouchers  that  are  forged  will  in  general  make  himself 
liable  for  the  amount  paid.  Thus  where  such  an  officer  paid  out  pub- 
lic money  upon  transportation  requests,  addressed  to  a  railroad  com- 
pany and  accepted  oy  it,  which  requests  had  been  fraudulently 
prepared  by  a  quartermaster's  clerk  who  had  forged  the  name  of  the 
quartermaster  thereto,  lield  that  the  disbursing  officer  was  responsible 

^  See  Appropriations  XI. 

2  See  Dig.  Second  Comp.  Dec,  vol.  3,  p.  324. 

3  In  Smythe  v.  U.  S.,  188  U.  S.,  156,  and  earlier  cases  therein  cited  the  rule  was 
laid  down  that  the  obligation  of  a  bond  "  to  keep  safely  the  public  money  is  absolute 
without  any  conditions,  expressed  or  implied,  and  nothing  but  the  payment  of  it 
when  required  can  discharge  the  bond."  The  severity  of  this  rule  is  mitigated  by 
the  provisions  of  sec.  1062,  R.  S.,  which  authorizes  a  paymaster,  quartermaster, 
commissary  of  subsistence,  or  other  disbursing  officer  to  apply  to  the  Court  of  Claims 
for  relief  from  responsibility  on  account  of  capture  or  otherwise  of  Government  funds, 
and  authorizes  the  court  to  grant  relief  where  the  loss  was  '*  without  fault  or  negligence 
on  the  part  of  such  officer. "  The  rule  as  to  the  degree  of  care  that  should  be  exercised 
by  such  officers  in  order  to  justify  the  granting  of  relief  by  the  court  is  set  out  in  4  Ct. 
Cls.,  506;  5  id.,  489;  7  id.,  415;  37  id.,  531.  The  facts  in  the  following  cases  illustrate 
the  practical  view  taken  by  the  court:  4  Ct.  Cls.,  501;  5  id.,  486;  7  id.,  431,  512;  11 
id.,  698;  15  id.,  314;  19  id.,  125;  21  id.,  300;  25  id.,  98;  37  id.,  527;  see  I  Comp.  Dec, 
191.  The  act  of  Mar.  2,  1903  (32  Stat.  955),  provides  specially  for  the  allowance  of 
such  credits  for  payments  and  for  losses  of  funds,  vouchers,  and  property  during 
the  Spanish  War  as  the  Secretary  of  War  may  recommend. 


890  PUBLIC  MONEY  II  B  3. 

for  the  amount  paid.  P.  56,  208,  Oct.  22,  1892.  So  where  a  forged 
transportation  request  was  accepted  by  the  railroad  company  but 
not  accepted  hy  the  disbursing  officers,  lield  that  the  loss  should  be 
borne  by  the  railroad  company. ^  G.  7400,  Apr.  21, 1900;  29056,  Oct. 
3,  1911. 

A  disbursing  officer  of  the  Army  who  has  paid  out  public  moneys 
upon  vouchers  which  prove  to  have  been  false  or  forged  is  personally 
responsible  to  the  United  States  for  the  amount  of  the  loss ;  and  it  is 
the  usage  of  the  Government  to  hold  such  an  officer  so  responsible, 
however  innocent  of  criminality  he  may  be;  the  fact  that  he  has 
acted  in  good  faith  not  affecting  his  legal  Hability.  Such  an  officer, 
further,  is  not  entitled  to  call  upon  the  Government  to  prosecute  a 
civil  suit  against  the  party  chargeable  with  the  fraud,  but  he  may 
himself  initiate  such  a  suit  if  he  desires  to  do  so  for  his  own  indemnity. 
R.  16,  635,  Oct.  25,  1865;  28,  20,  July  29,  1868;  A2,  Aug.  7,  1868; 
32,  423,  Mar.  22,  1872. 

II  B  3.  Where  a  Government  check  was  lost  from  the  mail  before 
reaching  the  payee,  recommended  that  the  incident  be  regarded  as 
one  involving  a  loss  of  public  funds,  and  that  the  case  be  submitted 
to  Congress  with  a  view  to  legislation  relieving  the  disbursing  officer 
who  drew  the  check  from  responsibility  in  connection  therewith. 
C.  18853,  Nov.  23,  1905. 

II  B  4.  The  act  of  February  27,  1893  (27  Stat.  478),  provided  that 
''The  Secretary  of  War  is  also  authorized  to  arrange  for  the  pay- 
ment of  the  enlisted  men  serving  at  posts  or  places  where  no  pay- 
master is  on  duty  by  check  or  by  currency,  to  be  sent  to  them  by 
mail  or  express,  at  the  expense  and  risk  of  the  United  States.'' 
Held  that  the  ''expense  and  risk"  referred  to  means  the  expense 
and  risk  of  transportation.  A  loss  occurring  during  transportation 
would  fall  on  the  United  States,  but  a  loss  not  occurring  dunng  trans- 
portation would  not  fall  on  the  United  States.     G.  2^27,  July  7, 1896. 

II  B  5.  Paragraph  658,  Army  Kegulations,  1908  (665  of  1910),  is 
as  follows:  "If  a  payment  made  on  the  certificate  of  an  officer  as  to 
the  facts  is  afterwards  disallowed  for  error  of  fact  in  the  certificate, 
it  will  pass  to  the  credit  of  the  disbursing  officer  and  be  charged  to 
the  officer  who  gave  the  certificate;  but  the  disbursing  officer  can 
not  protect  himself  in  an  erroneous  payment  made  without  due  care 
by  charging  lack  of  care  against  the  officer  who  gave  the  certificate." 
Where  an  officer  certified  that  rooms  had  been  occupied  under  a 
lease  for  10  days  in  the  month  of  March  and  made  out  a  voucher  for 
ten-thirtieths  of  the  monthly  rent  instead  of  ten  thirty-firsts,  held 
that  the  vouchers  showed  on  their  face  the  erroneous  method  of 
computation,  and  the  disbursing  officer  made  the  payment  "without 
due  care."     G.  253^0,  July  26,  1909. 

II  B  6.  Where  a  contractor  requested  the  District  engineer  officer 
to  mail  him  checks  in  payment  of  work  by  registered  mail  and  the 

^  See  IX  Comp.  Dec,  484,  holding  that  an  officer  from  whom  a  transportation, 
request  was  stolen,  the  request  having  been  honored  by  the  road  and  paid  by  a  dis-j 
bursing  officer,  was  not  chargeable  with  the  cost  of  the  transportation.  So  where  a| 
Government  meal  ticket  was  stolen  and  filled  in  and  subsequently  honored  by  a  rail- 
road company,  the  Comptroller  in  an  unpublished  opinion  of  Feb.  25, 1908,  held  that 
as  the  order  was  not  made  by  the  Government  or  by  any  officer  duly  empowered  tc 
make  it  there  was  no  legal  obligation  resting  upon  the  United  States  to  pay  for  the 
meals  furnished. 


PUBLIC   MONF.Y  11  C  1.  891 

engineer  officer  objected,  insisting  on  a  representative  of  the  con- 
tractor coming  to  trie  office  of  the  District  engineer  officer  to  receive 
and  receipt  for  the  checks,  held  there  would  be  no  added  risk  in 
sending  the  checks  by  mail  as  requested  by  the  contractor,  as  the 
checks  have  no  intrinsic  value  in  themselves,  but  are  merely  the 
means  of  securing  payment  from  the  proper  depository  of  public 
funds.  Therefore  if  the  checks  are  made  out  to  the  order  of  the 
contractor  so  that  they  would  require  the  indorsement  of  the  con- 
tractor, neither  the  Government  nor  the  engineer  officer  would 
incur  additional  risk  in  committing  them  to  the  mails.  As  to 
obtaining  a  receipt  for  the  checks,  the  officer  would  hold  the  request 
of  the  contractor  that  the  checks  be  sent  by  mail,  and  the  checks 
after  payment  would  be  in  the  possession  of  the  Government  and 
availaolo  as  evidence  of  payment.  If  desired,  the  engineer  officer 
could  send  a  blank  receipt  with  the  checks,  to  be  signed  and  returned 
by  mail,  and  in  the  meantime  could,  if  desired,  have  an  employee  of 
his  office  witness  the  fact  of  the  mailing  of  the  checks,  so  that  in  case 
of  a  failure  of  the  contractor  to  return  the  receipt  as  requested, 
there  would  be  proof  that  the  checks  had  been  mailed.  C.  19072, 
Jan.  20, 1906. 

II  C  1.  It  is  weU  settled  upon  considerations  of  public  policy,  that 
funds  in  the  possession  of  a  paymaster  of  the  Army  or  other  disbursing 
agent  of  the  United  States  due  as  pay,  salary,  or  wages  to  an  officer 
or  soldier  of  the  Army  or  other  Government  employee  can  not  be 
attached  in  a  suit  instituted  against  such  officer,  etc.,  by  a  private 
creditor.^  R.  8,  493,  May  20,  1864;  20,  41 S,  Feb.  21,  1866;  26,  466, 
Feb.  20,  1868;  28,  47,  Aug.  10,  1868;  33,  8,  Mar.  23,  1872;  34,  26, 
Nov.  1,  1872;  C.  1901,  Dec.  1895;  2767,  Dec.  28,  1896;  4887,  Sept.  1, 
1898;  6103,  Mar.  23, 1899.  As  the  United  States  Soldiers'  Home  which 
was  established  by  the  act  of  March  3,  1851,  9  Stat.  595,  is  simply  an 
agency  of  the  United  States,  the  title  to  the  property  and  funds  being 
in  the  United  States,  the  above  principle  would  apply  where  the 
creditor  of  a  contractor  for  work  at  the  home  attempted  to  garnishee 
the  officials  of  the  home.^  C.  16767,  Aug.  18,  1904.  Where,  indeed, 
the  pay  due  has  been  paid  over  to  a  third  person  as  the  authorized 
agent  or  attorney  of  the  party  entitled  to  receive  it,  it  may  be  attached 
by  the  garnishee  process  in  the  hands  of  such  person.  C.  4^87, 
Sept.  1,  1892. 

The  principle  is  well  established  that  money  in  the  hands  of  a 
disbursmg  agent  of  the  United  States  is  not  subject  to  attachment  in  a 
suit  by  a  creditor  of  a  party  to  whom  such  money  is  due  and  payable. 
A  military  disbursing  officer  is  therefore  not  empowered  to  pay  mon- 
eys in  his  hands,  due  a  Government  contractor,  to  any  creditor  of  such 
contractor,  or  to  any  person  other  than  the  contractor  himself,  or  his 
agent  or  attorney  or  personal  representative;  nor  can  he  be  made 
Hable  to  pay  over  any  part  of  such  moneys  as  garnishee  in  a  suit 
brought  against  such  contractor.  R.  64,  514,  Jan.  23,  1888;  P.  63, 
'''^l,  Jan.  20, 1894. 


*  Buchanan  v.  Alexander,  4  Howard,  20;  Averill  v.  Tucker,  2  Cranch,  C.  C,  544; 
Derr^.  Lubey,  1  McArthur,  187;  13  Op.  Atty.  Gen.,  566;  I  Comp.  Dec,  171;  II  id.,  222. 
And  the  same  principle  is  applied  to  moneys  due  from  municipal  corporations.  Haw- 
thorn V.  St.  Louis,  11  Mo.,  59;  Burnham  v.  Fond  du  Lac,  15  Wis.,  211;  Wilson  v.  Bk. 
of  La.,  55  Ga.,  98;  Pruitt  v.  Armstrong,  56  Ala.,  306;  Boone  Co.  v.  Keck,  31  Ark.,  387. 


892  PUBLIC  MONEY  11  C  2. 

II  C  2.  A  creditor  of  a  Government  contractor,  to  whom  the  Gov- 
ernment owes  a  balance,  can  not  attain  the  object  of  a  foreign  attach- 
ment by  brmging  suit  against  the  contractor,  and  joining  with  him, 
as  defendants,  the  United  States,  as  also  the  officer  of  the  Army  who 
executed  the  contract,  and  praying  judgment  against  the  United 
States,  or  for  an  order  of  court  upon  the  officer  to  pay  over  the 
amount  claimed.  An  individual  can  not  be  allowed  so  to  control 
the  operations  of  the  Government.^     P.  Ifi,  251,  Apr.  18,  1890. 

II  C  3.  A  general  service  clerk  received  from  a  paymaster  of  the 
Army,  in  payment  of  his  monthly  pay,  a  check  upon  a  national  bank, 
which  was  a  United  States  depositary.  On  presentation  the  bank 
retained  the  check  and  refused  payment  on  the  ground  that  the 
county^  sheriff  had  levied  an  attachment  on  all  the  property  of  tlie 
payee  in  the  bank.  ^  Held  that  such  refusal  was  unauthorized.  The 
pay  due  was  public  money  in  the  hands  of  the  depositary,  and 
could  be  paid  only  to  the  payee  of  the  check  or  his  order.  P.  51,  861, 
July  19, 1892. 

II  C  4.  Where  a  subcontractor  claiming  a  lien  on  the  money  due 
from  the  United  States  to  the  contractor  filed  with  the  Government" 
notice  of  the  alleged  lien,  held  that  in  the  absence  of  a  provision  in 
the  contract  specifically  providing  for  retaining  money  clue  the  con- 
tractor until  he  should  have  settled  other  claims  against  him,^  settle- 
ment should  be  made  with  the  contractor  without  regard  to  the  notice 
of  lien.     C.  209Ji.7,  Jan.  3,  1912. 

II  C  5.  A  subcontractor  can  not,  by  injunction  or  otherwise, 
restrain  the  Secretary  of  War,  or  a  military  officer,  from  paying  the 
entire  consideration  of  the  contract,  or  so  much  as  may  be  due  and 
payable,  to  the  contractor.  There  is  no  privity  of  contract  between 
the  Government  and  a  subcontractor^  and  he  has  no  legal  claim 
whatever  upon  the  United  States  for  any  part  of  the  contract  money. 
He  must  look  to  the  principal  contractor  for  the  payment  of  any- 
thmg  that  may  be  due  him.  R.  52,  194,  May  19,  1887;  G.  7^6,  Dec. 
13, 1894. 

II  C  6.  It  is  settled  that  a  State  court  can  have  no  authority  to 
enjoin  the  United  States  judiciary  from  executing  their  judgments, 
or  from  proceeding  with  actions  of  law  pending  before  them.*  Simi- 
larly held  that  a  State  court  was  not  empowered  to  enjoin  an  executive 
department  or  officer  of  the  United  States  from  performing  the  con- 
tracts of  the  United  States,  and,  accordingly  that  an  injunction  issued 
in  a  suit  in  a  State  court  prohibiting  an  officer  of  the  Army,  charged 
with  the  duty  of  paying  to  a  contractor  a  certain  sum  of  money  due  him 
under  a  contract  between  him  and  the  United  States,  from  pa3dng  said 

1  Moreover,  when  suit  is  initiated  against  the  United  States,  the  plaintiff  is  required 
to  proceed  according  to  the  provisions  of  sees.  4,  5,  and  6  of  the  act  of  Mar.  3,  1887 
(24  Stat.  506),  and  must  duly  serve  a  copy  of  the  petition  upon  the  proper  United 
States  district  attorney,  as  notice  to  appear  and  defend  the  interests  of  the  United 
States,  and  mail  a  copy  to  the  Attorney  General,  etc. — a  procedure  which  had  not  been 
followed  in  this  case. 

2  XVII  Comp.  Dec,  80. 

3  See  XVI  Comp.  Dec,  426. 

4  McKim  V.  Voorhies,  7  Cranch,  279;  Duncan  v.  Darst,  1  How.,  306;  City  Bk.  of  N.  Y. 
V.  Skelton,  2  Blatch.  26;  Riggs  v.  Johnson  Co.,  6  Wallace,  166;  United  States  v.  Council] 
of  Keokuk,  id.,  514;  Mariposa  Co.  v.  Garrison,  26  How.  P^.,  448;  English  v.  Miller,| 
2  Rich.  Eq.  320;  Chapin  v.  James,  11  R.  I.,  86. 


PUBLIC   MONEY  II  D.  893 

sum,  would  legally  and  properly  be  disregarded  by  such  officer.^  R. 
42,  128,  Jan.  22,  1879. 

II  D.  It  is  in  accordance  with  the  usage  of  the  military  service,  as 
well  as  the  general  practice  under  existing  laws,  for  an  officer  of  the 
Army  charged  with  the  disbursement  of  pubUc  funds  to  pursue  in  his 
own  name  and  representative  capacity  the  proper  legal  remedies  when 
such  funds  are  illegaUv  appropriated  or  withheld  by  third  parties. 
This  official  function  of  the  officer  can  not  properlv  be  imposed  upon 
the  head  of  his  department.  The  Secretary  of  War  can  not  be 
required  to  institute  the  legal  proceedings,  nor  would  his  doing  so 
make  the  claim  any  more  a  public  claim  of  the  United  States  than  it  is 
as  prosecuted  by  the  disbursing  officer  in  his  official  capacity.  Thus 
advised,  in  the  case  of  such  an  officer,  a  portion  of  whose  pubhc  funds 
were  in  the  possession  of  a  bank,  as  an  authorized  pubhc  depository, 
at  a  time  when  the  same  stopped  payment  and  went  into  insolvency, 
that  the  officer  should  file  and  prove  his  claim  before  the  register  m 
bankruptcy  and  prosecute  the  collection  of  the  same  so  far  as  neces- 
sary and  practicable;  and  further,  that  a  due  and  reasonable  diligence 
on  his  part  in  pursuing  the  legal  measures  open  to  him  for  realizing 
the  amount  for  which  ne  was  officially  responsible  would  furnish  the 
strongest  support  to  any  application,  which  he  might  in  future  prefer, 
to  be  discharged  from  habiiity  for  any  loss  to  the  United  States  result- 
ing from  the  failure  of  the  depository.     R.  35,  365,  May  7,  1874- 

II  E.  A  disbursing  officer  deposited  in  a  bank  at  Denver,  Colo.,  for 
collection  a  check  drawn  on  tne  treasurer  of  the  Phihppine  Islands. 
The  bank  made  a  charge  of  $30.11  as  exchange.  Held  that  the  dis- 
bursing officer  was  not  entitled  to  take  credit  in  his  account  for  the 
above  sum  required  to  be  paid  as  exchange.     C.  18853,  Aug.  21,  1907. 

III.  Section  3620,  R.  S.,  provides  that  a  disbursing  officer,  having 
on  deposit  in  a  public  depository  pubhc  moneys  intrusted  to  him  for 
the  purpose  of  disbursement,  shall  ' '  draw  for  the  same  only  in  favor 
of  the  persons  to  whom  payment  is  made."  Where,  upon  the  order  of 
a  party  to  whom  the  United  States  was  indebted  in  a  certain  amount, 
a  disbursing  officer  made  payment  of  the  amount  to  a  firm  to  which 
such  party  was  indebted— a^ms6(Z  that  such  payment  was  clearly  in 
contravention  of  the  statute.     P.  53,  239,  Apr.  29,  1892. 

IV.  Upon  construing  section  1766,  R.  S.,  in  connection  with  the 
original  act — ^that  of  January  25,  1828  (4  Stat.  246),  entitled  ''An  act 
to  prevent  defalcations  on  the  part  of  the  disbursing  agents  of  the 
Government" — held  that  such  section,  though  expressed  in  somewhat 
general  terms,  properly  apphed  only  to  bonded  disbursing  officers.* 
P.61,167,Aug.22,  1893.  ; 

*  See  the  subsequent  confirmatory  opinion  of  the  Attorney  General  in  this  case,  in 
16  Op.,  257.  In  an  earlier  opinion  of  the  Solicitor  General  (15  Op.,  524),  it  was  held 
that  as  a  State  can  not  by  its  judicial  process  legally  obstruct  or  indirectly  interfere 
with  the  operations  of  the  United  States  Government,  a  State  court  could  not  be  auth- 
orized to  enjoin  a  contractor  with  the  United  States  from  receiving  payments  under 
his  contract  and  thus  hinder  him  in  the  due  performance  of  the  same.  i 

2  But  see  the  general  provision  of  the  Army  appropriation  act  of  June  16,  1892  (27 
Stat.  177),  which  provided  that  "the  pay  of  officers  of  the  Army  may  be  withheld 
under  section  seventeen  hundred  and  sixty-six  of  the  Revised  Statutes  on  account  of 
an  indebtedness  to  the  United  States  admitted  or  shown  by  the  judgment  of  a  court, 
but  not  otherwise  unless  upon  a  special  order  issued  according  to  the  discretion  of  the 
Secretary  of  War." 


894  PUBLIC   MONEY  V. 

V.  Congress,  in  appropriating  money  for  tlie  new  State,  War,  and 
Navy  Building,  has  provided  that  the  amounts  shall  ^^be  expended 
under  the  direction  of  the  Secretary  of  War."  While  the  Secretary 
would  thus  be  authorized  to  commit  the  disbursing  of  the  funds 
employed  to  any  proper  person,  yet  advisedj  in  view  of  the  policy  of 
the  law  as  expressed  m  section  1153,  R.  S.,  that  the  Secretary  would 
properly  designate  as  the  disbursing  agent  the  engineer  officer  engaged 
in  superintending  the  work,  especially  since — as  provided  in  said  sec- 
tion— the  duty  of  disbursing  would  thus  be  performed  without  any 
charge  to  the  United  States.     R.  4I,  283,  June  22,  1878. 

VI.  A  paymaster  drew  his  check  in  favor  of  a  discharged  soldier 
for  the  amount  due  him  on  final  settlement.  The  payee  indorsed  the 
check  in  blank,  and  the  paymaster  then,  according  to  a  common  prac- 
tice, subindorsed  it,  adding  his  official  designation,  merely  for  the 
purpose  (though  the  indorsement  did  not  so  state) ,  of  identifying  the 
signature  of  the  payee.  The  writing  in  the  body  of  the  check  was 
then  removed  or  altered  and  the  check  filled  in  for  a  very  much  greater 
amount.  The  check  thus  raised  was  on  the  next  day  presented  to  and 
paid  by  the  Assistant  Treasurer  at  New  York.  Hewi  that,  while,  in 
the  hands  of  a  bona  fide  indorsee,  the  liability  of  the  paymaster  would 
have  been  that  of  a  regular  indorser,  parol  evidence  not  being  then 
admissible  to  show  that  he  indorsed  merely  for  identification,^  yet  the 
loss  in  this  case  legally  fell  upon  the  assistant  treasurer  whose  liability 
was  the  same  as  that  of  a  bank  which  pays  a  forged  check  in  a  case 
in  which  the  forgery  has  not  been  facilitated  by  the  negligence  of  the 
drawer.2    P.  53,  312,  May,  1892. 

yil.  Held  that  the  act  of  April  20,  1874  (18  Stat.,  pt.  3,  p.  33), 
entitled  ''An  act  to  provide  for  the  inspection  of  the  disbursements 
of  appropriations  made  by  officers  of  the  Army,"  applied  only  to  the 
inspection  of  disbursements  of  moneys  appropriated  oy  legislation  of 
Congress.     P.  48,  184,  July  9,  1891. 

VIII.  Section  3651,  R.  S.,  prohibits  the  exchange  of  funds  by  any 
disbursing  officer  or  agent  of  the  Government.  Held  that  an  ex- 
change by  a  disbursing  officer  of  funds  appropriated  for  the  pay  of 
the  Army  for  Philippine  currency  at  the  market  rate  to  enable  him 
to  pay  in  that  currency  creditors  who  desired  to  receive  it  in  satisfac- 
tion of  the  obligation  of  the  United  States,  would  not  be  an  ex- 
change forbidden  by  this  section.     0.  17604,  Feb.  28,  1905. 

IX.  After  the  establishment  of  a  new  currency  for  the  Philippine 
Islands  by  the  act  of  March  2,  1903  (32  Stat.  952),  the  question  arose 
as  to  the  payment  of  debts  due  the  United  States  in  the  Philippine 
currency  and  the  payment  by  the  United  States  of  its  own  debts  m  the 
same  currency,  held  thsd,  under  sections  3473,  3474,  3475,  and  3476, 
R.  S.,  all  funds  received  by  disbursing  officers  of  the  United  States 
from  the  sale  of  stores  and  other  public  property  must  be  in  United 
States  currency,  and  that  under  sections  3617,  3618,  3651,  3652,  and 
3692,  R.  S.,  the  accounts  of  disbursing  officers  must  be  kept  in  United 
States  currency,  but  there  is  no  objection  to  the  payment  of  a  debt  of 
the  United  States  in  any  local  currency  which  the  creditor  was  willing 
to  receive.  For  instance,  if  an  employee  of  the  United  States  is 
employed  at  the  rate  of  $100  per  month  he  is  entitled  to  demand  his 
pay  in  United  States  currency.     If  he  desires  to  be  paid  in  Mexican 

^  Daniel  on  Negotiable  Instruments,  vol.  1,  p.  719,  and  cases  cited, 
2  Byles  on  Bills  (Sharswood's  edition),  337,  and  cases  cited. 


PUBLIC   MONEY PUBLIC   PROPERTY:   SYNOPSIS.  895 

dollars  there  is  no  objection  to  his  being  paid  in  such  number  of 
Mexican  dollars  as  are  equal  on  the  day  of  payment  to  $100  in  gold. 
So,  too,  a  disbursing  officer  may  make  a  contract  payable  in  Mexican 
dollars  or  other  foreign  currency,  but  the  account  must  be  stated  in 
legal  tender  of  the  United  States  at  the  market  quotation  of  such 
currency  on  the  day  of  payment.  With  the  above  exceptions,  the 
accounts  of  disbursing  omcers  must  always  be  kept  in  United  States 
currency.     C.  16316,  Dec.  23,  1903. 

X.  Paragraph  687,  Army  Regulations  of  1904  (694  of  1910),  pro- 
vided that  damage  to  public  property  for  which  an  officer  was  re- 
sponsible would  be  'deducted '  from  his  monthly  pay.  Held  that  the 
regulation  was  intended  to  cover  cases  where  the  officer  did  not 
voluntarily  pay  the  amount  of  the  damage,  but  that  where  an  officer 
was  willing  to  pay  the  amount  of  the  same  it  should  be  received  from 
him  and  deposited  in  a  Government  depository  to  the  credit  of 
miscellaneous  receipts  and  the  officer  relieved  from  his  accountability. 
C.  22134,  Oct.  1,  1907, 

XI.  Sections  3617  and  3618,  R.  S.,  have  no  application  until  the 
money  has  been  received  to  the  use  of  the  United  States.  Therefore, 
lield  that  a  provision  in  a  lease  of  Government  property  that  the 
lessee  might  make  necessary  repairs  and  have  the  cost  of  the  same 
credited  on  the  rent  was  legal.  C.  29129,  Oct.  18,  1911.  So,  held, 
that  a  contract  might  be  made  between  the  commanding  officer  of  a 
post  and  a  private  laundry  whereby  the  laundry  should  launder  at  a 
reduced  rate  articles  belonging  to  the  United  States  as  well  as  articles 
of  officers  and  enUsted  men  and  in  consideration  thereof  should  be 
furnished  fuel  and  water  by  the  Government  at  cost  price.  G.  I4948, 
July  16,  1903, 

CROSS   REFERENCE.  -*«, 

See  Militia  X  to  XI. 

Public  property. 

Blank  receipts  unauthorized See  Pay  and  allowances  IBS. 

Can  not  be  advanced See  Contracts  XII. 

Can  not  be  given  to  flood  sufferers See  Public  property  I  A  5. 

Loss  of. See  Discipline  XII  A  12  b. 

Misapplication  of. See  Pay  and  allowances  I  C  6  b. 

Misappropriation  of See  Discipline  II  D  16  a. 

Pay  and  allowances  I  C  6  b. 
Sources  of See  Army  I  G  3  b  (2)  (a)  [3]  [d];  d  (8)  (6). 

Discipline  XVII  A  4  g  (1). 

Laws  II  A  1  c. 

Pay  and  allowances  I  C  6  b  (5);  7  a 
(l);IIIClf(l);g(l);D2. 

Public  property  IX  A  3. 

War  I  C  6  c  (3). 

PUBLIC  PROPERTY.! 

I.  IN  GENERAL Page  901 

A.  Disposition  Must  be  Authorized  by  Congress Page  902 

1.  Required  for  the  grant  of  any  interest  in  public  property. 

2.  Distinction  between  license  and  grant  of  interest Page  903 

3.  Applies  to  both  personal  and  real  property Page  904 

4.  Applies  to  exchanges  as  well  as  other  dispositions Page  905 

a.  Sale  to  State,  or  exchange,  of  arms,  etc. 

b.  Issues  of  arms  and  ammunition  to  protect  public  money  and 

property. 

'  Prepared  by  Mr.  Lewis  W.  Call,  chief  clerk  and  solicitor,  office  of  the  Judge 
Advocate  General,  U.  S.  Army. 


896  PUBLIC  propeety:  synopsis. 

I.  IN  GENERAL-Continued. 

A.  Disposition  Must  be  Authorized  by  Congress — Continued. 

5.  Issues  to  sufferers Page  906 

a.  Civilian  employees  in  hospital. 

6.  Finder  obtains  no  title. 

B.  Transfer,  etc.,  op  Property  Between  Bureaus  and  Departments. 

1.  Transfer  or  exchange  of  lands Page  907 

C.  Loan  of  Tents,  Flags,  etc Page  908 

D.  Choses  in  Action. 

E.  Custody  of,  in  District  of  Columbia, 

F.  Accountability  for. 

1.  For  transportation  requests Page  909 

2.  For  loss  as  gratuitous  bailee. 

3.  Fixing  accountability — Surveying  officer. 

a.  Swearing  of,  and  witnesses.  • 

b.  May  receive  affidavits Page  910 

4.  Relief  from  accountability. 

G.  Donation  of  Personal  Property,  Acceptance  of. 
n.  LAND. 

A.  Purchase  of,  Must  be  Authorized  by  Law  (Section  3736,  Revised 
Statutes). 

1.  Term  "purchase "  includes  donation,  etc Page  911 

2.  Statutory  authority  for,  must  be  clear. 

a.  Where  appropriation  is  insufficient. 

b.  Where  appropriation  for  monument  does  not  authorize  pur- 
chase    Page  912 

3.  By  deed,  formal  acceptance  not  necessary. 

a.  After  delivery,  etc.,  cancellation  not  authorized.     , 
^^  4.  Authority  to  condemn  must  be  express. 

a.  Must  precede  suit Page  91S 

b.  Whether  in  State  or  United  States  court. 

c.  Condemnation  for  Gettysburg  battlefield. 

5.  Title  for  joint  use  where  statute  calls  for  "title." 

6.  Title  must  be  approved  by  Attorney  General. 

a.  Abstract  of  title,  survey,  etc Page  914 

b.  Certificate  as  to  liens. 

(1)  Lien  for  purchase  money. 

(2)  Lien  of  judgment,  appealed  from 

c.  Title  for  limited  use Page  915 

(1)  Subject  to  condition  subsequent. 

d.  Deposit,  in  condemnation Page  916 

e.  When  title  vests. 

f.  Where  error  as  to  area, 

g.  Subject  to  right  to  cut  timber. 

h.  Where  easement  only  is  acquired Page  917 

7.  Title  under  settlement  of  suit. 

8.  Temporary  forts  in  emergency  with  consent  of  owner. 

B.  Disposition  Must  be  Authorized  by  Law. 

1 .  By  statute  without  deed Page  918 

2.  By  deed  under  authority  of  statute. 

3.  No  title  against  United  States  by  adverse  possession. 

a.  Protection  of  possession  of  United  States Page  919 

b.  Process  respecting  title. 

C.  Boundaries  on  Streets. 


PUBLIC  propekty:  synopsis.  897 

n.  LAND— Continued. 

D.  Boundaries  on  Waters Page  920 

1.  Natural  accretions. 

E.  Buildings,  Generally  Property  of  Owner  of  Soil. 

1.  On  land  occupied  jure  helix. 

2.  Temporary  buildings,  removal  of Page  021 

3.  Buildings  erected  without  authority. 

4.  \^^lere  reserved  in  contract  for  sale. 

F.  Trees,  the  Property  op  the  Owner  of  Soil. 

1.  Cutting  for  use  of  garrisons. 
in.  MILITARY  RESERVATIONS. 

A.  Reservation,  Meaning  of. 

1.  Authority  of  President Page  922 

2.  Order  inoperative  as  to  private  lands Page  923 

3.  Order  withdraws  lands  from  jurisdiction  of  Interior  Department. 

4.  Within  national  park. 

5.  In  Porto  Rico  and  in  Philippine  Islands. 

B.  Not  Subject  to  Location  for  Mines Page  924 

C.  Not  Subject  to  Location  op  Railway  Throucjii  "Public  Lands." 

D.  On  Indian  Reservation,  Subject  to  Rights  of  Indians. 

E.  Error  in  Location  op  Post. 

F.  Disposition  op  Military  Reservations. 

1.  Authority  of  Congress  required. 

2.  Conflicting  claims  of  private  parties Page  925 

3.  Under  act  of  July  5,  1884. 

4.  Grant  to  municipal  corporations  (act  of  Mar.  3,  1893). 

5.  Sale  under  special  act.     Expenses  of  sale. 

6.  In  the  Philippine  Islands I^age  926 

G.  Boundary  on  Tide  Waters 

1.  In  States. 

2.  In  Territories. 

H.  Squatters  or  Trespassers. 

1.  Removal  by  force  if  necessary. 

2.  Improvements,  removal  of,  valuation Page  927 

3.  Hay  or  wood  cut  by  trespassers  not  to  be  removed. 

4.  Removal  where  on  reservation  for  injurious  purposes. 

5.  Business  on  reservation. 
IV.  CEMETERIES. 

A.  National  Cemeteries. 

1.  Acquisition  of. 

a.  Law  authorizing. 

(1)  Condemnation  when  authorized Page  928 

(2)  Effect  of  appraisement. 

b.  For  volunteer  homes. 

2.  Right  of  way  for  roadway  to. 

a.  Restriction  as  to  railways  on. 

b.  Police  jurisdiction  over. 

c.  Restriction  as  to  repairs. 

3.  Superintendent  of. 

a.  Status  of Page  929 

b.  Authority  to  make  arrests. 

c.  To  enforce  rules  regarding  speed. 
31106°— 12 57 


898  PUBLIC  pkoperty:  synopsis. 

IV.  CEMETERIES— Continued. 

A.  National  Cemeteries — Continued. 

4.  Persons  entitled  to  burial. 

a.  Superintendent  Army  Nurse  Corps, 

b.  Indigent  of  Civil  and  Spanish  Wars Page  930 

c.  Revenue-Cutter  Service. 

B.  Confederate  Dead,  Northern  Prisons. 

1    No  authority  to  permit  interment  of  others. 

V.  JURISDICTION— GENERAL  DISCUSSION Page  931 

A.  Not  Incident  to  Ownership  by  United  States Page  933 

B.  Retained  on  Admission  of  State.    (See  Public  Property,  V  A.) 
N        C.  Acquired  by. 

1.  Purchase  with  consent  of  State.     (See  Public  Property,  V;  V  A; 

V  E  1  a.) 

2.  Direct  cession  by  State.    (See  Public  Property,  V;  V  E  1  a.) 

D.  How  Lost.    (See  Public  Property,  V;  V  A;  V  E  1  a.) 

1.  By  abandonment  or  relinquishment  of  reservation Page  934 

a.  Not  lost  by  grant  of  right  of  way  for  railway 

E.  Conditions  and  Restrictions. 

1.  Purchase  with  consent. 

a.  For  purpose  specified  in  Constitution  gives  exclusive  juris- 

diction. 

(1)  Reservation  of  right  to  serve  process Page  935 

(2)  Reservation  of  concurrent  jurisdiction  not  acceptable. 

b.  For  other  purposes.     (See  Public  Property,  V;  V  E  la.) 

(1)  May  be  accompanied  with  limitations.     (See  Public 

Property,  V.) 

(2)  Questionable  whether  exclusive  jurisdiction  is  desir- 

able.    (See  Public  Property,  V.) 

c.  Construction  of  cession  of  ''exclusive  legislation"  with  the 

reservation  of  ' ' concurrent  jurisdiction. " Page  936 

d.  Construction  of  cession  of  jurisdiction  with  proviso  for  opera- 

tion of  State  laws  over  premises. 

e.  Construction  of  term  "purchase." 

2.  In  case  of  direct  cession. 

a.  Cedes  only  so  much  as  is  expressed.     (See  Public  Property, 

V;  VEla.) 

b.  Reservation  of  right  to  tax  persons  and  corporations.     (See 

Public  Property,  V;  V  E  1  a.) 

c.  Of    concurrent   jurisdiction.    ,  (See    Public    Property,    V; 

VE  1  a.) 

d.  Cession  not  retroactive  unless  so  worded Page  937 

F.  Effect  of  Cession. 

1.  Where  exclusive. 

a.  State  laws  not  operative. 

(1)  Prohibition  laws. 

b.  Removes  territory  from  political  and  legal  jurisdiction  of 

State. 
(1)  Withdraws  persons  and  property  thereon  from  civil 
and  criminal  jurisdiction   of  State.     (See   Public 
Property,  V  F  1  b.) 

(a)  From  liability  to  State  taxation.     (See  Public 
Property,  V  F  1  b.) 


PUBLIC  property:  synopsis.  899 

V.  JURISDICTION— GENERAL  DISCUSSION— Continued. 

F.  Effect  of  Cession — Continued. 

1.  Where  exclusive — Continued. 

b.  Removes  territory  from  political  and  legal  jurisdiction  of 
State — Continued. 

(2)  Deprives  persons  thereon  of  school  and  other  privi- 
leges.   (See  Public  Property,  V  F  1  b.) 
*     (3)  Deprives  State  officers  of  jurisdiction  within  reser- 
vation  Page  9S8 

(a)  To  hold  inquests  thereon,     (See  Public  Prop- 
erty, V  F  1  b  (3.) 
(6)  To  enforce  quarantine  regulations.    (See  Public 
Property,  V  F  1  b  (3.) 

(c)  To  require  vital  statistics.     (See  Public  Prop- 

erty, V  F  1  b  (3.) 

(d)  To  control  public  easement  for  highway.    (See 

also  Public  Property,  V  F  1  b  (3.)-  -  Page  939 

(e)  To  require  license  for  business  thereon.    (See 

Public  Property,  V  F  1  b  (3.) 
(/)  To  r^ulate  marriages.     (See  Public  Property, 

VFlb(3.) 
(g)  To  administer  effects  thereon  of  deceased  per- 
sons. 
(h)  To  serve  process  unless  right  reserved .  Page  940 

2.  Where  not  exclusive. 

a.  Reservation  of  right  to  tax  persona  and  corporations.     (See 

Public  Property,  V  E  1  a.) 

b.  Reservation  of  concurrent  jurisdiction.     (See  Public  Prop- 

erty, V  E  1  a  (2.) 

G.  Jurisdiction  Required  by  Section  355,  Revised  Statutes. 

1.  Construction  of  language  "other  public  building  of  any  kind  what- 

ever. " 
a.  For  park  purposes,  etc Page  941 

2.  Does  not  preclude  purchase  prior  to  cession. 

3.  Cession  required  before  expenditure  of  appropriation. 
H.  Law  Operative  Within  Reservations. 

1.  '^Tien  jurisdiction  ceded. 

a.  Laws,  other  than  criminal,  continue. 

b.  Criminal  laws  of  United  States Page  942 

2.  In  Territories.     (See  Public  Property,  V  H  1  a.) 

a.  Territorial  laws,  civil  and  criminal,  continue.     (See  Public 

Property,  V  H  1  a.) 

b.  Process  of  Territorial  courts. 

c.  Local  government  of  District  of  Columbia Page  943 

VI.  RIGHTS  OF  WAY. 

A.  Rights  op  United  States  Under  Grant. 

1.  Authority  of  municipal  officers. 

B.  Over  Public  Property — Authority  of  Congress  Required. 

1.  A  State  can  not  authorize Page  944 

2.  Formal  acceptance  not  necessary. 

3.  Selection  of  location  where  grant  indefinite 

4.  Requirement  as  to  joint  use  of  tracks. 


900  PUBLIC  peopekty:  synopsis. 

VI.  RIGHTS  OF  WAY— Continued. 

C.  Public  Rights — Existing  When  Lands  Required. 

1.  Statute  authorizing  Secretary  of  War  to  grant. 

D.  Irrigation  Ditches,  Law  as  to  Water  Rights. 

1.  Approval  of  location.     (See  Public  Property  VI  D.) Page  945 

2.  Wliere  lands  acquired  subject  to  right  of  way. 

E.  For  Railways — Northern  Pacific  Railroad Page  946 

1.  Railways  through  water-reserve  lands. 
Vn.  LEASE. 

A.  To  the  United  States. 

1.  Assignment  by  lessor  not  within  section  3737,  Revised  Statutes. 

2.  Buildings  erected  on  leased  land. 

3.  Construction  of  term  "month." Page  947 

4.  Option  for  renewal. 

5.  Renewal  by  formal  contract. 

6.  WTiere  property  is  occupied  after  expiration  of  term. 

7.  Where  rent  is  claimed  adverse  to  lessor. 

B.  By  the  United  States. 

1.  On  Muskingum  River— Act  of  August  11,  1888  (25  Stat.  417). 

a.  Acceptance  of  rent  from  assignee  ratifies  assignment.  Page  948 

b.  Termination  for  nonpayment  of  rent. 

2.  Under  act  of  July  28,  1892  (27  Stat.  321). 

a.  Exception  as  to  mineral  lands. 

b.  Discretion  as  to  amount  of  rent Page  949 

c.  Commencement  of  term. 

d.  Revocation  of  lease. 

e.  Disposition  of  rent. 

Vm.  LICENSE,  GENERAL  DISCUSSION Page  950 

A.  Nature  op Page  952 

1.  No  usufructuary  interest. 

2.  Not  assignable  or  transferable. 

a.  Issue  of  new  license  to  assignee. 

3.  Will  not  authorize  taking  of  property Page  953 

4.  Can  not  authorize  permanent  changes  or  damage  to  property. 

a.  Can  not  authorize  waste. 

b.  Can  not  authorize  use  of  mineral  lands. 

c.  Can  not  authorize  permanent  structures. 

d.  For  use  of  surplus  water  for  irrigation Page  954 

e.  To  receive  water  through  Government  system. 

5.  For  landing  of  ferry  on  reservation Page  955 

6.  For  use  of  personal  property. 

B.  Instances  Where  Licenses  Have  Been  Granted. 

1.  For  post  office Page  956 

C.  Where  United  States  Owns  Fee  Subject  to  Public  Easement. 

D.  Where  United  States  Has  a  Special  Interest  Only. 

E.  Revocation  and  Removal  of  Property Page  957 

1.  Change  of  location  of  railroad  track. 
IX.  SALES. 

A.  Military  Stores — Section  1241,  Revised  Statutes. 
1.  Meaning  of  term  "military  stores." 
a.  Containers  of  supplies. 
f 


PUBLIC  PROPERTY  I.  901 

IX.  SALES— Continued. 

A.  Military  Stores— Section  1241,  Revised  Statutes— Continued. 

2.  ^fanner  and  terms  of  sale. 

a.  Must  be  condemned  as  damaged  or  unsuitable Page  958 

(1)  Unsuitable  where  not  adapted  for  use. 

(2)  Unsuitable  by  reason  of  situation. 

(3)  Matured  or  fallen  timber  or  driftwood Page  959 

(4)  Timber,  etc.,  in  clearing  land. 

b.  May  be  sold  on  credit. 

c.  Employment  of  auctioneer. 

d.  "VVTiere  property  is  returned  under  contract. 

e.  Can  not  be  exchanged.     (See  Public  Property  I  A  4.) 

f .  Use,  etc. ,  of  condemned  property Page  960 

3.  Disposition  of  proceeds  of  sales.     (Sec.  3618,  R.  S.) 

a.  Property  not  suliject  to  section  3618,  Revised  Statutes. 

4.  Property  not  under  section  1241,  Revised  Statutes.     (See,  also,  Nav- 

igable Waters,  X  F  and  X  F  3.) 

B.  Op  Arms,  Clothing,  etc.,  by  Soldiers. 

1.  Seizure  of  arms  sold. 

2.  Seizure  of  clothing  sold Page  961 

(As  to  title,  See  Pay  and  allowances:  II  A  3  a  (4)  (a) 

I.  The  Constitution — Article  IV,  section  3,  paragraph  2 — provides 
that  ''the  Congress  shall  have  power  to  dispose  of,  and  make  all 
needful  rules  and  regulations  respecting,  the  territory  or  other  prop- 
erty belonging  to  the  United  States."  The  scope  of  this  provision 
is  most  comprehensive;  the  authority  conferred  thereby  upon  the 
legislative  branch  of  the  Government  being  held  to  extend  from  the 
formation  of  a  Territorial  Government  to  the  matter  of  the  sale  of  a 
small  amount  of  personalty.  That  neither  land  nor  any  interest 
in  land  of  the  United  States  can  be  sold  or  otherwise  disposed  of  by 
the  head  of  an  executive  department  or  other  executive  official  or 
by  a  military  officer,  without  the  authority  of  Congress,  is  settled 
law.i  R.  7,  404,  Mar.,  1864;  22,  135,  July,  1866;  SO,  606,  Aug., 
1870;  85,  307,  Apr.,  1874;  4^,  283,  May,  1879;  54,  609,  Feb.,  1888. 
In  the  absence  of  such  authority,  the  lands  of  the  United  States, 
whether  held  by  original  proprietorship,  or  acquired  by  purchase  or 
gift,  or  by  conquest,  cannot,  even  for  a  purely  benevolent  or  religious 
purpose,  be  given  away  any  more  than  they  can  be  transferred  for  a 
valuable  consideration.  R.  39,  337,  Dec,  1877.  Nor,  in  the  absence 
of  legislative  authority,  can  the  Secretary  of  War  authorize  the  use  of 
Government  land  for  street  purposes.  C.  3864,  Feb.,  1898;  7891, 
Mar.  31,  1900;  7959,  Mar.  31,  1900;  17478,  Jan.  31,  1905.  Nor 
(without  such  authority)  can  they  be  conveyed  temporarily  by  lease, 

1  This  fundamental  rule  of  our  public  law  is  expressed  by  Attorney  General  Hoar 
(13  Opins.  46),  as  follows:  "I  am  clearly  of  opinion  that  the  Secretary  of  War  cannot 
convey  to  any  person  any  interest  in  land  belonging  to  the  United  States,  except  in 
pursuance  of  an  act  of  Congress  expressly  or  icipliedly  authorizing  him  to  do  so." 
And  see  United  States  v.  Nicoll,  1  Paine,  646  (Fed.  Cas.,  15,879);  Seabury  v.  Fields, 
McAllister  (Fed.  Cas.,  12574),  1^  United  States  v.  Hare,  4  Sawyer,  653,  669  (Fed.  Cas., 
15303).  See  also  29  Op.  Atty.  Gen.,  272,  to  the  effect  that  the  title  to  a  school  build- 
ing in  Petersburg,  Alaska,  purchased  from  the  "Alaska  fund  "  could  not  be  transferred 
from  the  Government  to  the  town  of  Petersburg,  except  by  an  act  of  Congress. 


902  PUBLIC  PROPERTY  I  A. 

whether  for  a  short  or  long  term.^  R.  32,  2,  May,  1871;  89 
Dec,  1877;  42,  280,  Mar.,  1879;  C.  10819,  July  18,  1901;  12497]  Apr. 
24,  1902;  18102,  Aug.  9,  1902;  18757,  Dec.  6,  1902;  I486O,  Apr.  1, 
1908;  14454,  Apr.  17, 1908;  15286,  Oct.  6,  1908;  16062,  Mar.  15, 1904; 
19140,  Feb.  5,  1906;  19896,  June  16,  1906;  21884,  Apr.  18,  1907; 
27466,  Nov.  9,  1910;  11181,  Oct.  11,  1901. 

I  A.  As,  under  the  resolution  of  annexation  of  Hawaii  "  absolute 
fee  and  ownership  of  all  pubUc  Government,  or  Crown  lands"  vested 
in  the  United  States,  which  resolution  provided  further  that  Con- 
gress would  *' enact  special  laws  for  the  management  and  disposition 
of  such  lands,''  Tield  that  the  continued  disposition  of  such  lands  by 
the  Territorial  Government  of  Hawaii  was  unauthorized. ^  C.  6488, 
May  27,  1899;  7859,  Dec.  1,  1899. 

1  A  1.  Nor,  without  authority  from  Congress,  can  an  executive 
department  or  officer  convey  away  any  usufructuary  interest  in  land  of 
the  United  States.  Thus  it  has  been  repeatedly  held  by  the  Judge 
Advocate  General  that  the  Secretary  of  War  (or  a  military  com- 
mander) was  not  empowered,  of  his  own  authority,  to  grant  a  right 
of  way  over  a  military  reservation  to  a  railroad  company  or  other 
corporation.^  R.  81,  287,  Mar.,  1871;  84,  197,  470,  Mar.  and  Sept., 
1878;  85,  554,  Aug.,  1874;  86,  207,  Jan.,  1875;  C.  24I,  Aug.,  1894. 
And  such  rights  when  given  by  Congress  can  be  exercised  only 
within  the  terms  of  the  grant.  Thus  where  by  an  act  of  Congress 
there  was  granted  to  a  railroad  company  a  limited  and  defined  right 
of  way  across  a  military  reservation  (occupied  by  a  military  post), 
lield  that  the  company  was  authorized  simply  to  construct  a  track 
or  roadway,  and  was  not  empowered  to  put  up  depots,  stock  yards, 
cattle  pens,  or  other  erections  upon  the  land,  or  to  appropriate  land 
otherwise  than  for  the  roadway .^^  R.  4I,  214,  Apr.,  1878;  42,  187, 
Mar.,  1879.  So  lield  that  the  Secretary  of  War  could  not,  of  his  own 
authority,  grant,  in  consideration  of  the  payment  of  toll  to  the 
United  States,  a  right  of  way  over  a  bridge  belon2:ing  to  the  United 
States.  R.  81,  186,  Jan.,  1871;  88,  4I,  Apr.,  1876^  So  held  that  the 
Secretary  could  not  legally  grant  to  a  company  or  individual  the  right 
to  erect  and  maintain  for  an  indefinite  period  a  hotel  on  the  military 

^  See  Friedman  v.  Goodwin,  1  McAllister,  148,  where  a  lease  made,  by  the  post 
commander  at  San  Francisco,  of  a  part  of  a  "Government  reserve,"  though  approved 
by  the  military  governor  of  the  then  Territory  and  also  by  the  Secretary  of  the  Inte- 
rior, was  held  void  because  not  authorized  by  Congress.  The  court  declares  the 
"utter  impotency  of  any  attempt  by  an  officer  of  the  Government  to  alien  any  land, 
the  property  of  the  United  States,  without  the  authority  of  an  act  of  Congress, " 
adding  that  "the  President  with  the  heads  of  the  departments  combined"  could  not 
effect  such  an  object.  And  see  4  Opins.  At.  Gen.  480;  9  id.  476;  13  id.  46;  United 
States  V.  Hare,  4  Sawyer,  670-1.  In  the  last  case  the  court  says:  "The  Secretary  of 
the  Treasury  cannot  execute  or  approve  of  a  lease  of  any  property  belonging  to  the 
United  States  without  special  authority  of  law." 

But  see  now  the  act  of  July  28,  1892  (27  Stat.  321),  which  gives  the  Secretary  of 
War  authority  to  lease  for  a  period  not  exceeding  five  years  and  revocable  at  any 
time,  public  property  under  his  control  (except  mineral  and  phosphate  lands),  not 
for  the  time  required  for  public  use. 

2  Following  this  opinion  an  Executive  order  was  issued  on  Sept.  11,  1899,  setting 
aside  all  sales  made  since  the  adoption  of  the  resolution  of  annexation. 

^  In  numerous  statutory  enactments  such  a  right  has  been  expressly  given  by  Con- 
gress as  the  only  authority  competent  for  the  purpose. 
*  See  this  opinion  aflirmed  by  the  Attorney  General  in  14  Op.,  135. 


PUBLIC  PROPERTY  I  A  2.  903 

reservation  at  Sandy  Hook.^  R,  38,  351,  Nov.,  1876.  So  lieU  that 
the  Secretary  would  not  be  authorized  to  transfer  a  lot  belonging  to 
the  United  States  in  Washington  to  the  Commissioners  of  the  District 
of  Columbia  for  the  erection  of  a  hospital.  R.  36,  668,  Sept.,  1875. 
So  held  that  neither  the  Secretary  of  War  nor  a  department  com- 
mander could  grant  to  an  individual  or  individuals  the  exclusive 
right  to  use  for  an  indefinite  period  certain  water  power  belonging 
to  the  United  States  {R.  41,  136,  Feh.,^  1878);  nor  the  exclusive  right 
to  mine  the  soil  of  a  military  reservation  for  a  certain  term  of  years 
(R.  41,  37,  Nov.,  1877);  nor  a  similar  right  to  make  and  maintain 
for  an  indefinite  period  ditches  through  a  portion  of  such  a  reserva- 
tion for  the  purpose  of  irrigating  the  lands  of  private  parties  {R. 
38,  232,  Aug.,  1876) ;  nor  the  right  annually  to  enter  upon  and  occupy 
a  military  reservation  and  cut  and  possess  the  hay  crop  growing 
thereon  ^  {R.  4^,  ^28,  Jan.,  1879) ;  nor  the  right  permanently  or 
indefinitely  to  occupy  and  use  a  portion  of  a  reservation  for  a  burying 
ground.  R.  39,  337,  Bee,  1877;  C.  10720,  June  26,  1901;  19020, 
Jan.  15,  1906;  19254,  Feb.  27,  1906;  19482,  Apr.  6,  1906;  21940, 
Aug.  17,  1907;  11886,  Jan.  13,  1902;  16827,  Aug.  31,  1904. 

I  A  2.  Held,  however,  that  a  distinction  was  to  be  observed  between 
a  grant  of  a  usufructuary  interest  in  land  ana  a  revocable  license,  not 
involving  a  transfer  of  such  an  interest.^  R.  33,  657,  Jan.,  1873;  34, 
196,  Mar.,  1873;  43,  278,  Apr.,  1880.  Thus  held  that  the  Secretary  of 
War  would  be  authorized  to  permit  a  telegraph  company  to  erect 
posts  upon  a  military  reservation  and  attach  to  the  same  telegraph 
wires,  subject  to  their  being  removed  at  the  will  of  the  Government 
if  found  to  interfere  with  the  purposes  for  which  the  reservation 
was  established.  R.  38,  591,  May,  1877.  So  held  that  a  municipal 
corporation  might  legally  be  permitted  by  the  Secretary  of  War  to 
lay  water  pipes  in  the  soil  of  the  arsenal  grounds  at  Springfield,  Mass., 
the  same  being  equally  for  the  benefit  of  the  military  authorities  and 
the  citizens,  and  subject  to  removal  at  the  will  of  the  Government. 
R.  86,  653,  Aug.,  1875.  And  held  that  a  post  trader  might  legally  be 
licensed  by  the  Secretary  of  War  to  erect  the  buildings  necessary  for 
his  business  upon  the  land  of  the  post  for  which  he  was  appointed. 
R.  33,  453,  Oct.,  1872;  35,  78,  Bee,  1873.  But  held  that  the  Secretary 
of  War  was  not  empowered  to  accede  to  the  application  of  an  indivi- 
dual to  establish  a  lerry  across  a  river  within  the  limits  of  a  military 
reservation,  where  what  was  asked  was  not  a  mere  license  revocable 
at  the  will  of  the  Secretary  but  a  permanent  franchise  and  grant  of 
an  exclusive  usufructuary  interest  in  the  premises,  including  even 
the  right  to  charge  tolls  to  the  United  States.     R.  38,  564,  Apr.,  1877; 

^  See  confirmatory  opinion  of  the  Attorney  General  in  16  Op.,  205.  In  this  case 
thore  was  the  further  objection  that  the  State  of  New  Jersey,  in  ceding  to  the  United 
States  jurisdiction  over  the  premises,  by  deed  of  Mar.  10,  1846,  had  expressly 
declared  that  the  grant  was  for  military  purposes";  adding,  "and  the  said  United 
States  shall  retain  such  jurisdiction  so  long  as  the  said  tract  shall  be  applied  to  the 
military  or  public  purposes  of  the  said  United  States,  and  no  longer." 

^  A  fortiori  in  regard  to  growing  timber.  See  Spencer  v.  United  States,  10  Ct. 
Cls.,  255. 

^  See  this  distinction  recognized  in  opinions  of  the  Attorney  General  of  Oct.  1, 
and  Nov.  22,  1878  (16  Op.  152,  205),  m  the  foimer  of  which  it  was  held  that  the 
Secretary  of  the  Navy  was  not  empowered  to  authorize  the  city  of  Chelsea,  Mass.,  to 
continue  one  of  its  main  sewers  through  the  grounds  of  the  United  States  Naval 
Hospital.    Seo  14  Op.  Atty.  Gen.,  125. 


904  PUBLIC  PBOPERTY  T  A  3. 

39,  457,  Mar.,  1878;  42,  454,  Dec,  1879.  And  similarly  leU  in  a 
case  of  an  application  to  be  permitted  to  erect  and  maintain  a 
permanent  bridge  across  a  river  forming  a  boundary  of  a  military 
reservation,  one  end  of  which  was  to  be  built  upon  the  soil  of  the 
reservation;  the  application  contemplating  not  a  mere  license 
revocable  at  the  will  of  the  Government,  but  a  permanent  right  of 
property  in  the  bridge  involving  an  easement  in  the  land.  R.  43, 
167,  Jan.,  1880.  Also  similarly  lield  where  the  application  was  to 
bore  for  gas  on  a  military  reservation  and  for  the  exclusive  privilege 
of  piping  and  disposing  of  the  same,  if  found  in  paying  quantities. 
C.  285,  Sept.,  1894. .  . 

I  A  3.  The  provision  of  the  Constitution  in  regard  to  the  dispo- 
sition of  pubUc  property  applies  to  personalty  equally  as  to  realty. 
Thus  no  executive  department  or  officer  can  be  empowered,  except 
by  the  authority  of  Congress,  to  dispose  of  personal  property  of  the 
United  States.^  R.  30,  605,  Aug.,  1870;  38,  11,  Dec,  1875;  C.  I48, 
Aug.,  1894;  1^99,  May,  1895;  3555,  3679,  Oct.  and  Nov.,  1897;  5008, 
Sept.,  1898.  So  lield  that  the  Secretary  of  War  would  not  be  author- 
ized, in  the  absence  of  enabling  legislation,  to  sell  or  negotiate  the 
bonds  or  promissory  notes  made  to  the  United  States  by  certain 
railroad  companies,  in  consideration  of  rolling  stock,  &c.,  sold  and 
transferred  to  the  same.  R.  30,  605,  Aug.,  1870.  And  held  that 
the  fact  that  certain  valuable  public  property  was  perishable  and 
liable  to  waste  was  not  legally  sufficient  to  justify  the  sale  in  the 
absence  of  statutory  authority.  R.  28,  479,  Apr.,  1869.  Held  that 
the  '^Cavalry  Tactics,"  a  work  prepared  under  the  orders  of  the 
Secretary  of  War  by  a  board  of  officers,  was  the  property  of  the 
United  States,  and  therefore  could  not,  without  the  authority  of 
Congress,  be  disposed  of  to  a  bookseller  with  a  view  to  its  pubHcation 
and  sale  by  him  on  his  private  account.  R.  35,  264,  Mar.,  1874- 
And  held  that  the  telegraph  lines  of  Porto  Rico,  which  by  the  treaty 
of  Paris,  became  the  property  of  the  United  States,  could  not  be 
aUenated  except  by  authority  of  Congress.  O.  8097,  Apr.,  1900; 
10819,  July  13,  1901;  11131,  Oct.  11,  1901;  13102,  Aug.  9,  1902; 
13757,  Dec  6, 1902;  13419,  Mar.  11, 1903;  I4454,  Apr.  17, 1903;  21384, 
Apr.  13,  1907;  19282,  Mar.  2,  1906. 

1  The  leading  case  on  this  point  is  United  States  v.  Nicoll,  1  Paine,  646  (Fed. 
Cas.  15879),  in  which  it  was  held  that  a  sale  or  loan,  by  the  commandant  of  an 
arsenal,  of  a  quantity  of  lead  belonging  to  the  United  States,  was  illegal  and 
invalid.  The  court  say:  "The  Constitution  declares  that  'Congress  shall  have 
power  to  dispose  of  and  make  all  needful  rules  and  regulations  respecting  the  terri- 
tory or  other  property  belonging  to  the  United  States.'  No  public  property  can 
therefore  be  disposed  of  without  the  authority  of  law,  either  by  an  express  act  of 
Congress  for  that  purpose,  or  by  giving  the  authority  to  some  department  or  sub- 
ordinate agent.  No  law  has  been  shown  authorizing  the  sale  of  this  lead;  nor  is  any 
such  authority  to  be  inferred  from  the  general  power  vested  in  any  of  the  depart- 
ments of  the  Government.  The  power,  if  lodged  anywhere,  would  seem  most  appro- 
priately to  belong  to  the  War  Department.  But  there  is  no  such  express  or  implied 
power  in  that  department  to  sell  the  public  property  put  under  its  management." 
And  see  the  same  principle  recognized  in  an  opinion  of  the  Attorney  General  (16 
Op.  477),  in  which  it  is  held  that  the  Secretary  of  War  was  not  empowered  to  sell 
arms  to  a  State,  in  the  absence  of  authority  from  Congress. 

In  certain  emergencies,  however,  the  use  of  property  of  the  United  States  to  relieve 
suffering  among  persons  not  entitled  to  such  aid  has  been  authorized  by  the  Presi- 
dent, and  similarly  the  Army  Regulations  contain  provisions  with  reference  to  the 
care  of  certain  sick  persons  not  entitled  to  such  care;  but  there  is  no  authority  of  law 
for  this.     It  can  only  be  said  to  rest  on  the  necessity  of  furnishing  relief  in  such  cases. 


PUBLIC  PROPERTY  T  A  4.  005 

I  A  4.  The  provision  of  the  Constitution  in  regard  to  the  dispo- 
sition of  pubHc  property  apphes  to  exchange  as  well  as  to  other 
disposition  thereof.  An  exchange  of  public  property  for  other  prop- 
erty not  belonging  to  the  United  States  can  not,  therefore,  be  made 
except  by  authority  of  Congress.  R.  52,  316,  June,  1887;  P.  37,  20^, 
Dec,  1899;  C.  613,  Nov.,  1894;  1223,  Apr.,  1895;  2127  and  2183, 
Mar,  and  Apr.,  1896;  3414,  Aug.,  1897;  1174S,  Dec,  1901;  12479, 
Apr.  24,  1902.  However,  an  exchange  is  recognized  as  a  common 
business  transaction,  and  where  there  is  authority  for  the  condemna- 
tion and  sale  of  unsuitable  materials,  such  as  is  given  in  section  1241 
R.  S.,  with  respect  to  old  material,  condenmed  stores,  etc.,  and  also 
authority  for  the  purchase  of  new  suppHes,  an  exchange  may  legally 
be  effected,  provided  the  amount  allowed  for  the  old  materials  in 
part  payment  be  covered  into  the  Treasury  in  conformity  to  the 
requirements  of  section  3618  R.  S.,  as  amenaed  by  the  act  of  July  8, 
1896  (29  Stat.  268),  which  requires  the  net  proceeds  of  the  sale  of 
the  same  to  be  "covered  into  the  Treasury  as  miscellaneous  receipts," 
the  appropriation  for  the  new  supplies  to  be  charged  for  the  full 
value  of  the  same.^  C.  34I4,  Dec  19,  1904,  «^  ^'^9-  i^j  1^05; 
I642O,  June  4,  1904;  20159,  Aug.  8,  1906.  And  where  there  is 
statutory  authority  to  credit  the  proceeds  of  the  sale  of  unserviceable 
property  to  the  appropriation  for  the  work  for  which  it  was  pur- 
chased, as  in  sales  of  river  and  harbor  property  under  section  5  of 
the  act  of  June  13,  1902  (32  Stat.  373),  the  exchange  of  the  old  sup- 
I)Ues  may  be  made  for  new  in  part  payments  without  the  necessity 
of  any  transfer  of  appropriations.^  C.  3414)  Jan.  6,  1904,  Dec  19, 
1904,  and  Aug.  12,  1905;  20159,  Aug.  8,  1906. 

I  A  4  a.  Held,  that  in  the  absence  of  authoritv  from  Congress  the 
Secretary  of  War  could  not  be  empowered  to  sell  military  stores  to  a 
state  or  to  exchange  for  such  stores  in  possession  of  a  State.  P.  4i , 
497,  July,  1890;  42,  371,  Aug.,  1890.  The  militia  act  of  January  21, 
1903  (32  Stat.  775),  authorizes  the  sale  to  a  State,  Territory,  or  the 
District  of  Columbia  of  military  stores,  etc.,  and  the  exchange  of  old 
arms  and  ammunition  for  new.  On  application  by  the  governor  of 
Hawaii  for  the  sale  to  that  Territory  of  a  fla^  for  use  on  the  capitol 
building,  lield  that  while  supplies  for  the  militia  might  be  sold  to  the 
Territory,  under  section  17  or  said  act,  there  was  no  statutory  author- 
ity for  a  sale  for  other  purposes,  and  that,  as  to  such  sales,  the  funda- 
mental rule  is  applicable  that  Congress  alone  can  authorize  the 
disposition  by  sale  or  otherwise  of  public  property.  C.  15286,  Oct. 
6, 1903. 

I  A  4  b.  Under  the  provisions  of  the  act  of  March  3,  1879  (20  Stat. 
412),  the  Secretary  of  War  is,  upon  the  request  of  the  head  of  any 
department,  authorized  and  directed  to  issue  arms  and  ammunition 
whenever  they  may  be  required  for  the  protection  of  public  money 
and  property,  to  any  officer  of  the  department  designated  by  the  head 
thereof,  to  be  returned  when  the  necessity  for  their  use  has  passed. 
Held  that  under  this  statute  the  Secretary  of  War  could  furnish  arms 
and  ammunition,  upon  the  recjuest  of  the  Secretary  of  the  Interior,  to 
an  Indian  agent  for  use  of  his  police  to  meet  any  threatened  armed 
opposition  that  might  arise  in  the  attempt  of  the  agent  to  evict  tres- 
passers from  the  reservation  under  his  charge.     C.  1419,  June,  1895. 

1  V  Comp.  Dec,  716;  15  Op.  Atty.  Gen.,  322;  Cir.  1,  W.  D.,  Jan.  3,  1906. 
«IXComp.  Dec,  311. 


906  PUBLIC  PROPERTY  1  A  5. 


I  A  5.  Where  it  was  reported  that  the  Indians  in  the  Copper  River 
district  of  Alaska  were  destitute  and  in  need  of  food,  and  it  was 
proposed  that  rations  should  be  issued  them  by  the  War  Department, 
held  that  although  there  is  no  statutory  authority  for  furnishing 
rations  in  such  a  case,  issues  of  rations  have  heretofore  been  made  by 
the  War  Department  to  destitute  persons  where  the  overruling 
demands  of  humanity  made  it  necessary.^  C.  6836,  Aug.  3,  1899; 
7493,  Jan.  12,  1900;  1^7,  Mar.  23, 1903;  23289,  Sept.  27,  1909. 
Similarly  Jield  as  to  the  authority  to  sell  coal  at  net  cost  {C.  19307 j 
Mar.  2,  1906);  and  as  to  the  loan  of  coal,  security  being  taken  there- 
for.     C.  19307,  Oct.  13, 1906. 

I  A  5  a.  Held  that  while  there  is  no  statutory  authority  for  making 
a  regulation  placing  civilian  emploj^ees  of  the  Government  on  the 
same  footing  as  discharged  soldiers  with  regard  to  rations  while  under 
treatment  in  hospital,  neither  is  there  such  authority  for  the  regula- 
tion in  regard  to  discharged  soldiers. ^  The  best  that  can  be  said  of 
such  regulations,  like  the  provisions  for  the  issue  of  rations  to  suf- 
ferers from  flood  and  famine,  is  that  they  are  founded  on  a  kind  of 
necessity.     C.  9491,  Dec.  24, 1900. 

I  A  6.  Where  a  balloon,  property  pertaining  to  the  Signal  Corps, 
had  been  sent  on  a  voyage  and  was  picked  up  by  a  private  person 
who  refused  to  give  it  up  until  paid  the  sum  of  $20,  held  that  the 
sending  of  the  balloon  on  the  voyage  did  not  constitute  an  abandon- 
ment of  the  property  so  as  to  entitle  the  finder  to  keep  it,  such  action 
being  the  appropriate  method  of  using  the  property  so  that  it  must 
be  assumed  there  was  an  intention  to  retain  title  and  recover  the 
property  if  possible;  that  unless  a  reward  was  offered,  the  finder 
would  have  no  lien  on  the  property,  either  for  reward  or  expenses ;  ^ 
that  if  he  appropriated  it  to  his  own  use,  he  would  render  himseK 
liable,  both  civilly  and  criminally;*  and  advised  that  the  papers  be 
referred  to  the  Attorney  General,  with  request  that  action  be  taken 
to  recover  possession  of  the  balloon.     C.  18456,  Aug.  22, 1905. 

1  B.  The  Secretary  of  War  is  not  authorized,  without  the  author- 
ity of  Congress,  to  turn  over  property  of  his  department,  in  his  charge, 

^  Such  issues  axe  sanctioned  by  par.  1241  A.  R.,  which  provides  that  the  issues  will 
onljr  be  made  ' '  when  the  commanding  officer  assumes  the  responsibility  of  orderiug 
the  issue  to  relieve  starvation  or  extreme  suffering. "  In  an  unpublished  opinion  of  the 
Acting  Attorney  General,  Oct.  15, 1908,  in  regard  to  the  issue  of  provisions  and  rations 
to  citizens  of  Georgia  made  destitute  by  recent  storms,  it  was  said:  "That  while  there 
is  no  direct  authority  by  statute  for  affording  temporary  relief  in  such  an  emergency, 
yet  there  is  no  statutory  prohibition;  and,  in  view  of  the  fact  that  such  relief  has  been 
extended  in  the  past,  the  Attorney  General  thinks  that  under  the  general  executive 
power  the  contemplated  relief  ma;^  be  ^ven  in  the  present  emergency."  Rations 
were  issued  in  conformity  with  this  opinion;  and,  under  date  of  July  6,  1899,  the 
Secretary  of  War  authorized  the  issue  of  10,000  rations  for  the  benefit  of  sufferers  from 
floods  in  Texas.  Provision  for  similar  relief  were  made  by  Congress  as  follows,  inter 
alia:  By  act  of  Mar.  31,  1890,  for  the  relief  of  persons  driven  from  their  homes  by  floods 
in  Arkansas,  Mississippi,  and  Louisiana;  by  joint  resolution  of  Apr.  25,  1890,  for  pur- 
chase and  distribution  of  subsistence  stores  for  persons  suffering  from  floods  of  the 
Mississippi  River;  by  joint  resolution  of  Dec.  25,  1893,  for  pecuniary  aid,  in  the  discre- 
tion of  the  Secretary  of  War,  to  Government  employees  injured  by  the  Ford's  Theater 
disaster;  by  public  resolutions  No.  17,  Apr.  30, 1908,  and  Nos.  20  and  21,  May  11, 1908, 
to  relieve  the  distress  occasioned  by  recent  storm  or  cyclone. 

2  See  par.  1474  and  1475  A.  R.,  1910,  as  to  discharged  soldiers'  receiving  hospital  treat- 
ment and  rations  while  under  treatment.     See  also  par.  1483  as  to  civilian  employees. 

3  Tome  V.  Four  Cribs  of  Lumber,  Fed.  Cases  No.  14083;  Reeder  v.  Anderson,  Admin- 
istrator, 34  Ky.,  193;  Chase  v.  Corcoran,  106  Mass.,  286. 

^  Am.  &  Eng.  Ency.  of  Law,  2d  Edition,  vol.  18,  pp.  504,  520. 


I 


PUBLIC  PROPERTY  I  B  1.  907 

to  another  department  for  its  permanent  use  and  disposition.  P.  51, 
414,  Jan.,  1892.  C.  1623,  Aug.,  1896.  But  such  transfer  may  be 
made  with  proper  debit  and  credit  of  appropriations.^  C.  3679, 
Jan.,  1898;  7840,  Mar. ,1900;  12491 ,  May  6, 1902;  16202,  Apr. 20,  I9O4. 

Under  paragraph  616,  Army  Regulations  (630  of  1910),  ''The 
transfer  of  public  property  from  one  bureau  or  department  to  another 
is  not  regarded  as  a  sale."  ^  Paragraph  671  (682  of  1910)  requires 
for  such  transfer  ''special  authority  of  the  Secretary  of  War  and 
provides  that  "when  between  a  bureau  of  the  War  Department 
and  any  other  executive  department  the  amount  to  be  paid  will 
include  the  contract  or  invoice  price,  and  cost  of  transportation." 
The  amount  thus  determined  should  be  transferred  as  indicated  on 
)age  602,  volume  3,  Decisions  of  the  Comptroller  of  the  Treasury. 
Held  that  a  transfer  of  certain  clotliin^  from  the  Quartermaster's 
Department  to  the  Department  of  Justice  for  the  use  of  prisoners 
in  the  United  States  penitentiary  at  Fort  Leavenworth  could  legally 
be  made  under  the  provisions  of  the  regulations  cited,  the  latter 
department  having  an  appropriation  made  by  Congress  for  the 
purchase  of  clothing  for  the  prisoners  named.  C.  7184,  Oct.,  1899. 
Similarly  held  with  respect  to  a  proposed  transfer  of  five  mules  pur- 
chased irom  the  appropriation  for  river  and  harbor  improvements, 
to  the  Quartermaster  Department  of  the  Army.  C.  3679,  Jan.,  1898; 
11839,  Jan.  3,  1902;  12191,  Mar.  10,  1902;  12491,  May  6,  1902; 
I48I7,  June  17,  1903;  16202,  Apr.  20,  1904;  17672,  Mar.  10,  1906. 

I  B  1.  The  exchange  of  a  lighthouse  reservation  for  a  military 
reservation  by  the  Treasury  and  War  Departments  would  not  be 
legal  without  the  authority  of  Congress,  but  advised  that  it  would  be 
in  accordance  with  precedent  for  each  department  to  give  to  the  other 
a  license  to  occupy  the  lands  of  that  department  pending  action  by 
Congress.  C.  3667,  Nov.,  1897;  8743,  Aug.,  1900;  II478,  Oct.  30, 
1901. 

Instances  of  transfers  to  another  department  are:  The  transfer 
of  Dry  Tortugas,  Fla.,  to  the  Navy  Department  by  direction  of 
the  President  in  April,  1900  {C.  7968,  Apr.  2,  1900);  the  transfer 
of  a  portion  of  the  reservation  of  Point  Loma,  Cal.,  to  the  Navy 
Department  for  a  coahng  station  (C.  11133,  Sept.  13,  1901);  and  the 
lease  of  the  reservation  of  Fort  Trumbull,  Conn.,  to  the  Treasury 
Department.  C.  24526,  Feb.  23,  1909,  and  June  21,  1910.  With 
reference  to  the  transfer  of  Dry  Tortugas,  supra,  it  was  thought  that 
this  reservation,  having  been  reserved  from  public  domain  and  being 
of  no  further  use  for  mihtary  purposes,  could  be  transferred  direct  by 
the  President  instead  of  being  placed  under  the  control  of  the  Depart- 
ment of  the  Interior  under  the  act  of  July  5,  1884  (23  Stat.  103), 
and  subsequently  reserved  for  naval  purposes.  C.  24697,  Mar.  9, 
1909.  Where,  however,  land  has  been  purchased  and  not  reserved 
from  pubHc  domain,  a  complete  transfer  would  require  authority 
from  Congress.     C.  20674,  Oct.  I4,  1907;  24597,  Mar.  9,  1909.^ 

^  See  pars.  630  and  682  (1910),  and  III  Comp.  Dec.  602. 

=»  See  17  Op.  Atty.  Gen.  480. 

^  Opinion  of  Attorney  General,  dated  Nov.  21,  1907,  not  published.  See,  however, 
decision  of  Acting  Secretary  of  the  Interior,  June  4, 1885  (3  Land  Decisions,  p.  577),  to 
the  effect  that  Fort  Sullivan,  Me.,  a  military  reservation  acquired  by  purchase  and 
within  a  State  having  no  public  lands,  could  be  disposed  of  under  the  act  of  July 
5,  1884  (23  Stat.  103). 


908  PUBLIC  PEOPEBTY  I  C. 

I  C.  Requests  for  the  loan  of  tents,  flags,  and  other  public  property 
under  the  control  of  the  War  Department  have,  as  a  rule,  been  denied 
on  the  ground  that  the  Secretary  of  War  had  no  authority  to  loan 

f)ublic  property  under  his  control  unless  authorized  to  do  so  by  reso- 
ution  or  act  of  Congress.^  While  there  have  been  instances  in  which 
dredges  and  other  public  property  used  for  the  improvement  of  navi- 
gation have  been  loaned  under  authority  of  the  War  Department,  the 
practice  has  been,  with  few  exceptions,  in  accordance  with  the  view 
that,  in  the  absence  of  authority  from  Congress,  the  Secretary  of  War 
can  not  legally  loan  personal  property  of  the  Government.  C.  1561, 
July,  1895;  2265,  May,  1896.  Held,  therefore,  that  in  the  absence  of 
congressional  authority  Government  ambulances  could  not  be  loaned 
to  the  National  Guard  of  a  State  for  use  on  a  practice  march.  C. 
1561,  supra.  But  held  that  it  was  within  the  discretion  and  power  of 
the  Secretary  of  War  to  temporarily  furnish  transportation  and  an 
escort  for  a  United  States  judge,  on  his  request,  while  traveling  from 
place  to  place  for  the  purpose  of  holding  court  in  the  Indian  Territory. 
Such  use  would  not  be  a  loan.  O.  228,  Aug.,  1894;  10655,  June  11, 
1901;  16155,  Apr.  7,  1904;  19282,  Mar.  2,  1906;  20846,  Dec.  28, 
1906,  and  Jan.  30, 1907. 

I  D.  When  a  general  deposit  is  made  in  a  bank,  the  depositor  parts 
with  the  title  to  the  money  deposited  and  takes  in  the  place  of  it  a 
credit.  This  credit  is  a  chose  in  action  and  is  ''property."  This  kind 
of  property  when  belonging  to  the  United  States  may,  under  para- 
graph 585,  Army  Regulations  (496  of  1910),  be  protected  like  any 
other  property.     C.  314,  Sept.,  1894. 

I  E.  Except  the  State,  War,  and  Navy  Building,  provided  for  by  a 
separate  statute  of  March  3,  1883,  the  other  buildings  owned  by  the 
United  States  and  occupied  by  the  War  Department  are  not  found 
to  have  been  taken  from  the  charge  of  the  Chief  of  Engineers.  The 
fact  that  a  ''superintendent  of  building"  is  authorized,  as  in  the  case 
of  the  appropriation  for  the  Record  and  Pension  Office,  would  not 
take  the  building  from  the  general  charge  devolved  upon  the  Chief  of 
Engineers  by  section  1797,  R.  S.     P.  60,  237,  June,  1893. 

I  F.  In  a  case  where  an  officer  had  been  relieved  from  duty  as 
company  commander  and  another  officer  placed  in  temporary  com- 
mand pending  the  arrival  of  the  officer  who  was  to  assume  perma- 
nent command — the  order  relieving  the  officer  providing  that  he 
should  retain  charge  of  the  funds  and  property — held,  on  the  question 
of  whether  it  was  competent  to  rec[uire  the  officer  who  had  been 
relieved  to  continue  his  responsibility  for  the  company  property, 
that  where,  as  in  this  case,  an  officer  is  permanently  relieved,  the 
responsibility  and  accountability  should  devolve  upon  his  successor 
in  office,  proper  receipts  being  taken  by  the  officer  relieved,  and 
that  he  can  not  properly  be  required  to  retain  responsibility  after  he 
has  been  permanently  relieved  and  another  officer  placed  in  com- 
mand, unless  the  exigencies  of  the  service  require  his  immediate 
departure  without  making  the  formal  transfer  required  by  the  regu- 
lations.    C.  27780,  Feb.  4,  1911.     Held,  further,  that  the  regulations 

*  Such  action,  for  example,  was  taken  by  the  War  Department,  Jan.  16,  1881,  on  a 
request  for  the  loan  of  tents  for  a  camp  meeting,  and  again  on  June  24,  1895,  on  a 
reciuest  for  the  loan  of  flags  to  be  used  at  an  encampment. 


PUBLIC   PROPERTY   I   F  1.  909 

contemplate  that  any  officer  who  has  the  custody  of  Government 
property  is  responsible  for  it  regardless  of  where  the  accountability 
or  responsibility  might  otherwise  rest  on  paper;  and  that  tlie  general 
principle  is  that  all  officers  are  responsible  for  any  Government  prop- 
erty with  which  they  are  in  any  way  connected,  and  the  mere  fact 
that  an  officer  has  not  receipted  for  any  given  article  can  not  be 
accepted  as  a  warrant  for  his  failure  to  exercise  the  utmost  diligence 
under  all  circumstances  to  see  that  such  property  is  properly  safe- 
guarded. C.  27780,  Feb.  4,  1911.  He  will  be  liable  only  where  a 
loss  has  been  incurred,  and  then  only  where  the  loss  is  the  result  of 
his  failure  to  exercise  that  degree  of  care  which  the  circumstances 
required.     P.  46,  340,  Apr.,  1891 . 

I  F  1.  A  recruiting  officer's  clerk  (a  corpora,!),  havmg  access  to 
blank  transportation  requests,  fdled  out  several  in  favor  of  a  railroad 
company,  forged  thereto  the  name  of  the  officer,  and  disposed  of  the 
same.*  The  forged  requests  were  paid  by  a  disbursing  officer.  Held 
that  the  latter,  havmg  paid  out  money  of  the  United  States  on  forged 
vouchers,  was  alone  legally  accountable  for  the  loss.  If  the  officer  who 
permitted  access  to  the  blank  requests  thereby  committed  a  military 
offense,  his  amenability  for  such  offense  could  be  enforced  only  bv 
means  of  a  trial,  conviction,  and  punishment  by  court-martial. 
Whatever  may  be  the  legal  effect  of  paragraph  35,  Grcular  7,  Adjutant 
General's  Office,  1892,  the  loss  in  question  occurred  prior  to  the  pro- 
mul^tion  of  the  cu-cular.     P.  56,  208,  Oct.,  1892. 

IF  2.  Where  an  officer,  having  had  intrusted  to  him  by  another 
officer  a  medal  of  honor  intended  for  and  to  be  delivered  to  an  enlisted 
man,  gave  such  care  to  its  safe-keeping  as  he  gave  to  his  own  property, 
locking  it  up  in  liis  trunk  for  the  purpose  of  transportation,  held  that 
he  was  not  legally  accountable  for  the  loss  of  the  medal  in  transitu. 
He  was  simply  a  gratuitous  bailee,  of  whom  is  recjuired  only  the  lowest 
degree  of  care  and  who  is  not  liable  for  a  loss  which  is  not  the  result  of 
gross  negUgence.     P.  44,  382,  Dec,  1890. 

I  F  3.  A  board  of  survey  (now  surveying  officer)  is  not  a  co-ur^  and 
can  not  legally  exercise  the  powers  expressly  vested  by  statute  in 
courts-martial  or  courts  of  inquiry.  K.  34,  306,  June,  1873.  It  is 
no  part  of  the  province  of  a  board  of  survey  to  convict  of  crime. 
Where  such  an  officer  or  board,  in  fixing  upon  an  officer  a  pecuniary 
responsibihty  for  the  loss  of  certain  subsistence  stores,  expressed  in- 
cidentally the  opinion  that  the  same  had  been  stolen  by  a  certain 
soldier,  Held  that  this  opinion  could  not  operate  as  a  finding  of  theft 
or  constitute  authority  for  the  stopping  against  the  pay  of  the  soldier 
of  the  value  of  the  stores.^    R.  42,  605,  Apr.,  1880. 

1  F  3  a.  There  is  no  statute  or  regulation  authorizing  the  swearing 
of  a  board  of  survey  (now  surveying  officer) ,  nor  indeed  is  it  necessary 
that  such  a  body  should  be  specially  sworn.  A  board  of  survey, 
moreover,  has  no  legal  capacity  to  swear  persons  attending  before 
it  as  witnesses,  nor  is  it  within  the  province  of  an  executive  order  to 
authorize  such  a  board  to  administer  an  oath  either  to  itself  or  to 

^  It  was  held  by  the  Comptroller  that  where  a  stolen  transportation  request  was 
accepted  in  good  faith  by  a  railroad  company  the  company  was  entitled  to  payment 
for  the  services  bo  rendered.     VI  Comp.  Dec.  936;    XIV  id.  7;  I  Mss.  Comp.  Dec.  251. 

2  See  Article  LVI,  Army  Regulations  of  1910. 


910  PUBLIC   PROPERTY  I   F   3   b. 

a  witness.i  R.  5,  590,  Jan.,  1864;  33,  5^8,  561,  Bee,  1872;  31,  305, 
June,  1873. 

I  F  3  b.  A  board  of  survey  (now  surveying  officer),  though  it  may 
not  swear  witnesses,  may  receive  and  file  with  its  report  affidavits  of 
persons  cognizant  of  facts  under  investigation.  K.,  V,  590,  Jan., 
I864. 

I  F  4.  A  person  who,  as  an  officer  of  the  Army,  has  been  subjected 
under  section  1304,  R.  S.,  to  a  charge,  against  his  pay,  of  the  money 
value  of  military  stores  deficient  or  damaged  for  which  he  has  been 
held  accountable,  can  not,  after  he  has  ceased  to  be  such  officer  and 
has  left  the  Army,  be  relieved  from  such  liability  by  the  Secretary  of 
War  under  that  section.  For  such  relief  he  must  have  recourse  to 
Congress.     P.  65,  137,  May,  1894. 

I  G.  Held,  with  respect  to  the  proposed  donation  to  the  United 
States  of  six  horses,  that  in  the  absence  of  a  statute  forbidding  the 
acceptance  of  the  same,  such  as  applies  to  the  purchase  of  land  (sec. 
3736  R.  S.)  or  to  the  acceptance  of  voluntary  services  (sec.  3679  R.  S., 
as  amended  Feb.  27,  1906—34  Stat.  49),  there  would  be  no  legal 
objection  to  the  acceptance  of  the  proposed  donation.  O.  27872, 
Feb.  17,  1911.  Similarly  Tield,  with  respect  to  the  acceptance  of  a 
proposed  donation  by  the  county  of  Galveston,  Tex.,  of  shell  for  the 
repair  of  Government  roads  at  Fort  Crockett — the  work  being  of 
benefit  to  the  community  as  well  as  to  the  Government.  C.  29257, 
Nov.  22,  1911. 

II  A.  In  the  absence  of  statutory  authority,  land  can  not  be  pur- 
chased/or the  United  States  with  any  more  legality  than  land  of  the 
United  States  can  be  sold  or  disposed  of.  By  a  provision  of  an  act 
of  May  1,  1820,  now  contained  in  section  3736,  K.  S.,  it  is  declared 
that  ''no land  shall  be  purchased  on  account  of  the  United  States 
except  under  a  law  authorizing  such  purchase."  Held  that  the  term 
''purchase"  was  to  be  understood  in  its  legal  sense,  as  embracing  any 
mode  of  acquiring  property  other  than  by  descent;^  and  that  there- 
fore the  Secretary  of  War  would  not  be  empowered  to  accept  a  gift  of 
land  or  interest  in  land,  for  any  use  or  purpose  independently  of 
statutory  authority.^  R.  32,  19,  Sept.,  1871;  38,  175,  July,  1876; 
39,  313,  Nov.,  1877;  44,  9,  June,  1880;  C.  3896,  Feb.,  1898;  11024, 

1  See  opinion  of  Judge  Advocate  General  published  in  full  in  G.  0.  68,  War  Dept., 
1873;  also  par.  712,  A.  R.  (795  of  1901).  But  see  sec.  183,  R.  S.,  as  amended  Mar. 
2,  1901,  80  as  to  provide,  inter  alia,  that  ''Any  officer  of  the  Army  detailed  to  conduct 
an  investigation,  and  the  recorder,  and,  if  there  be  none,  the  presiding  officer  of  any 
military  board  appointed  for  such  purpose  shall  have  authority  to  administer  an 
oath  to  any  witness  attending  to  testify  or  depose  in  the  course  of  such  investigation. 
See  also  par.  725,  A.  R.,  1910. 

As  to  the  procedure  of  boards  of  survey,  action  on  their  reports,  etc.,  see  G.  0.  179 
of  1898. 

2  See  7  Op.  Atty.  Gen.  114,  121;  Ex  parte  Hebard,  4  Dillon,  384;  Fed.  Cas.,  6312. 

3  See  this  opinion  concurred  in  by  the  Attorney  General,  in  16  Op.  414.  As  statutes 
specially  authonzing  the  acceptance  of  donations  of  land,  note  the  early  acts  of  Mar. 
20  and  May  9,  1794,  and,  later,  the  acts  of  Feb,  18,  1867;  Mar.  3,  1875;  June  23,  1879. 
That  authority,  however,  to  purchase,  and,  a  fortiori  perhaps,  to  accept  a  gift  of,  the 
necessary  Jand,  may  be  implied  from  an  appropriation  act  granting  a  sum  of  money 
for  a  jjublic  work  requiring  for  its  construction  the  occupation  and  use  of  certain  land 
of  an  individual  or  corporation,  see  opinions  of  the  Attorney  General  in  15  Op.  212; 
16  id.  119,  387,  In  the  opinion  in  16  Op.  119,  it  was  held  that  where  no  statutory 
authority  whatever  existed  for  accepting  a  gift  of  land,  a  head  of  department  would 
not  be  justified  in  accepting  the  same  on  the  condition  that  Congress  ratify  the  accept- 
ance and  in  anticipation  of  such  ratification. 


PUBLIC   PROPERTY   II  A  1.  911 

Aug.,  1904;  1^702,  May,  1902;  13854,  Jan.,  1903;  13586,  Nov.,  1902. 
And  similarly  held  as  to  the  construction  of  the  same  word  (''pur- 
chase") as  employed  in  sec.  355,  R.  S.,  and  advised  that  an  approj)ri- 
ation  of  public  money  could  not  legally  be  expended  for  the  erection 
of  a  public  building  upon  land  donated  to  the  tJnited  States,  until  the 
Attorney  General  Iiad  approved  the  title,  and  the  legislature  of  the 
State  in  which  the  land  was  situated  had  given  its  consent  to  the 
grant.*  R.  32,  19,  supra;  39,  313,  supra;  42,  452,  Dec,  1879;  C. 
12242,  Apr.,  1904. 

II  A  1.  In  view  of  the  prohibition  of  section  3736,  R.  S.,  that  ''no 
land  shall  be  purchased  on  account  of  the  United  States,  except 
under  a  law  authorizing  the  same,"  the  Secretary  of  War  can  not 
accept  a  grant  by  gift  of  land  or  of  an  easement  in  land,  without 
statutory  authority .^  R.  45,  359,  June,  1882;  P.  40,  447;  May, 
1890;  43,  70,  Sept.,  1890;  C.  3896,  Feb.  24, 1898;  12242,  Mar.,  1902. 
And  held  that,  in  the  absence  of  authority  from  Congress,  a  purchase 
of  lots  in  a  city  cemetery  for  the  burial  purposes  of  a  neighboring 
mihtary  post  would  not  be  legal  or  operative.  P.  31,  4^^j  Apr., 
1889.  Also  held  that  under  the  act  of  August  18,  1890  (26  Stat. 
316),  authorizing  the  acquisition  by  purchase,  condemnation,  or 
donation  of  land  or  easement  therein  for  fortification  and  coast 
defense  purposes,  the  proposed  donation  of  the  right  of  way  for  a 
macadamized  road  between  Fort  Mansfield  and  Watch  Hill,  R.  I., 
being  in  aid  of  such  purposes,  could  legally  be  accepted,  if  a  proposed 
clause  binding  the  United  States  to  maintain  the  road  be  eliminated. 
C.  13854,  Jan.  29,  1903. 

II  A  2.  The  statutory  authority  relied  upon  for  the  purchase  of 
land  by  a  head  of  a  department  should  be  clear  and  indisputable. 
Thus  held  that  authority  to  purchase  additional  land  for  the  interment 
of  soldiers  could  not  be  derived  from  the  general  provision  of  the 
annual  appropriation  act,  appropriating  a  certain  sum  for  maintain- 
ing the  existing  national  cemeteries.  R.  4I1  50,  Nov.,  1877.  And 
held  that  an  appropriation  for  the  "establishment"  of  a  military 
post  in  the  vicinity  of  Manila  would  not  be  sufficient  in  view  of  the 
positive  prohibition  of  the  statute.^     C.  12154,  Mar.,  1902. 

II  A  2  a.  A  statute  conferring  a  specific  authority  to  purchase 
certain  land  should,  in  the  exercise  of  the  authority,  be  strictly  con- 
strued. Thus  where  a  statute  authorized  the  Secretary  of  War  to 
purchase,  for  a  certain  stated  sum,  a  certain  described  tract  con- 
taining a  specified  number  of  acres,  held  that  the  act  did  not  invest 
him  with  discretion  to  purchase  a  portion  only  of  such  tract.  R.  38, 
346,  Oct,  1876;  P.  37,  203,  Dec,  1889;  C.  13580,  Nov.  4,  1902; 
15110,  Sept.  1903;  24464,  Sept.,   1909.     Held,  however,  that  pur- 

^  But  under  the  implied  authority  contained  in  sec.  1838,  R.  S.,  lands  required  as 
sites  for  forts,  arsenals,  etc. ,  or  needful  public  buildings,  mayjae  purchased  (or  acquired 
by  gift)  without  the  consent  of  the  State,  though,  in  the  absence  of  such  consent,  public 
money  can  not,  in  view  of  the  provisions  of  sec.  355,  legally  be  expended  upon  the 
buildings.     10  Op.  Atty.  Gen.  35;   15 id.  212. 

2  But  by  act  of  Apr.  24,  1888  (25  Stat.  94),  the  Secretary  of  War  is  expressly  empow- 
ered to  purchase,  or  accept  donations  of,  land  for  river  and  harbor  improvements; 
and  sections  4870-4872,  Rev.  Stats.,  give  general  authority  in  respect  to  national 
cemeteries;  and  the  acts  of  Aug.  18,  1890  (26  Stat.  316),  and  June  6,  1902  (32  Stat. 
305),  and  Apr.  28,  1904  (33  Stat.  497),  confers  similar  authority  with  respect  to  lands 
needed  for  fortifications  and  coast  defenses  and  barracks  in  connection  therewith. 

2  See  VII  Comp,  Dec,  524;  11  Op.  Atty.  Gen.,  201;  12  Fed.  Rep.,  415. 


912  PUBLIC   PROPERTY  II  A  2  b. 

chases  can  legally  be  made  of  portions  of  the  lands  authorized  to  be 
acquired  under  a  given  appropriation  at  prices  indicating  that  the 
balance  of  the  appropriation  would  be  sumcient  to  cover  the  acqui- 
sition of  the  quantities  specified,  and  that  such  a  course  is  often 
necessary  to  accompHsh  the  object  of  an  appropriation.  C.  13580, 
Nov.  4,  1902;  15110,  Sept.,  1903,  and  Aug.,  1906;  2U6J^,  Sept.,  1909, 

II  A  2  b.  The  deficiency  appropriation  act  of  March  3,  1899, 
authorized  the  Secretary  of  War,  "in  cooperation  with  the  Floyd 
Memorial  Association,"  to  cause  to  be  erected  over  the  remains  of 
Sergt.  Charles  Floyd,  a  member  of  the  Lewis  and  Clarke  Expedition, 
a  suitable  monument  near  Sioux  City,  Iowa,  and  appropriated 
$5,000  for  the  purpose.  Held  that  the  act  did  not  authorize  or 
require  the  acquisition  by  the  United  States  of  the  land  upon  which 
the  monument  was  built;  that  it  may  be  assumed  that  Congress 
intended  that  the  monument  should  be  cared  for  by  the  association, 
and  that  the  United  States  should  be  at  no  other  expense  than  that 
of  the  appropriation  for  assisting  in  its  construction.^  There  is  no 
statute  which  would  prohibit  the  expenditure  of  this  particular 
appropriation  if  title  to  the  site  be  not  acquired  by  the  United  States, 
and  in  practice  appropriations  have  frequently  been  expended  in 
works  or  improvement  where  such  title  to  the  sites  has  not  been 
obtained,  especially  in  improvements  of  navigable  waters  and  high- 
ways. The  prohibitions  of  section  355,  K.  S.,  are  not  viewed  as 
applicable  to  the  case  under  consideration.     C.  78^2,  Mar.,  1900. 

II  A  3.  No  formal  acceptance  of  a  deed,  apart  from  the  delivery,  is 
necessary,  and  in  the  practice  of  the  War  Department  a  formal  accept- 
ance is  not  usually  given.  An  acceptance  may  be  presumed  from  a 
variety  of  circumstances,  such  as  placing  the  deed  on  record,  posses- 
sion of  the  deed,  the  conveyance  being  beneficial  to  the  grantee,  the 
exercising  of  ownership  over  the  property  conveyed,  etc.  Thus,  where 
the  Secretary  of  War  secured  in  1871,  under  section  18  of  the  act  of 
July  17,  1862,  a  deed  to  a  certain  piece  of  land  for  use  as  a  cemetery, 
which  deed  was  duly  delivered,  placed  on  record,  and  forwarded  to  the 
War  Department,  and  the  land  was  so  used  until  1880,  at  which  time 
the  Secretary  of  War  declined  to  accept  the  said  deed  of  1871,  it  was 
held  that  the  deed  had  long  since  been  legally  accepted,  vesting  the 
title  in  the  United  States,  that  the  subsequent  refusal  to  accept  it, 
did  not  divest  the  title,  and  that,  in  the  absence  of  authority  from 
Congress,  the  Secretary  of  War  could  not  convey  it  to  other  parties. 

II  A  3  a.  The  owner  of  a  certain  tract  of  land  subject  to  overflow 
from  the  Government  reservoir  system  at  the  headwaters  of  the 
Mississippi  River,  conveyed  to  the  United  States  by  a  deed,  duly 
executed,  acknowledged,  and  recorded,  the  perpetual  right  to  overflow 
the  said  tract  for  a  nominal  consideration.  Subsequently  he  asked 
that  the  deed  be  canceled  and  another  and  larger  consideration  be 
paid  him  for  the  easement.  Held  that  the  Secretary  of  War  had  no 
authority  to  cancel  the  deed  or  to  release  the  easement  conveyed  by 
it.     C.  3782,  Jan.,  1898. 

II  A  4.  Authority  to  acquire  land  in  a  State,  by  the  exercise  of  the 
right  of  eminent  domain,  whether  by  proceedings  for  condemnation  in 
the  United  States  circuit  court  or  in  the  courts  of  the  State, ^  can  be 
vested  in  an  executive  official  of  the  United  States,  only  by  express 
legislation  of  Congress.     R.  42,  63,  Dec,  1878. 

1  See  yi  Comp.  Dec,  791.  '^  See  Kohl  v.  United  States,  1  Otto,  367. 


PUBLIC   PROPERTY   II   A  4   a.  913 

II  A  4  a.  The  Constitution  declares  that  private  property  shall  not 
be  taken  ''for  public  use  without  just  compensation.'  It  does  not 
provide  or  require  that  compensation  shall  actually  be  paid  in  advance 
of  occupancy  of  land  to  be  taken.  But  the  owner  is  entitled  to 
reasonable,  certain,  and  adequate  provision  for  obtaining  compensa- 
tion before  his  occupancy  is  disturbed.^  Wlien  there  is  no  provision 
for  compensation  private  property  should  not  be  taken  against  the 
consent  of  the  owTier  for  public  use.  Thus  held  that  condemnation 
])roceedings  against  land  adjoining  the  Presidio  of  San  Francisco, 
(  al.,  should  not  be  instituted  prior  to  an  appropriation  by  Congress. 
( \  3231,  May,  1S97;  20561,  Oct  26, 1906. 

II  A  4  b.  Held  that  there  was  no  general  act  of  Congress  making 
State  courts  an  agency  of  the  United  States  for  the  purpose  of  con- 
demning lands;  and  that  proceedings  for  this  purpose  should  be  had 
in  a  United  States  court  under  an  act  of  Congress,  or  in  a  State  court 
when  such  court  has  been  by  such  act  made  an  agency  for  the  purpose. 
P.  38,  271,  Feb.,  1890. 

II  A  4  c.  Where  certain  land,  part  of  the  battlefield  of  Gettysburg, 
was  in  danger  of  being  so  cut  up  and  altered  by  the  construction  of  an 
electric  railroad  as  to  cause  the  obUteration  of  important  tactical  posi- 
tions occupied  by  different  commands  engaged  m  the  battle,  advised 
that  the  Attorney  General  be  requested  to  have  initiated  the  proper 
proceedings  for  the  condemnation  of  the  land  so  that  the  United  States 
may  acquire  the  fee,  and  for  an  injunction  restraining  the  railroad 
company  from  constructing  or  operating  its  road  upon  the  land  pend- 
ing the  condemnation  proceedings.^    P.  61^.,  1^.11,  Apr.,  1894. 

II  A  5.  Where  an  enactment  of  Congress  (the  river  and  harbor 
appropriation  act  of  Sept.  10,  1890)  required  the  Secretary  of  War  to 
"acquire  the  title"  to  certain  lands  sufficient  for  a  right  of  way  for  a 
canal,  held  that  a  contract  of  conveyance  made  with  the  owner  of 
the  land,  a  railroad  company,  by  which  a  use  was  granted  of  such  way 
jointly  with  the  company,  was  not  a  compliance  with  the  law,  and 
that  fi  no  better  title  could  be  obtained  by  agreement,  the  Secretary 
should  proceed  to  the  alternative  (authorized  in  the  act)  of  causing 
the  premises  to  be  condemned.     P.  51,  184,  Jdn.,  1892. 

II  A  6.  Section  355,  R.  S.,  prohibits  the  expenditure  of  pubhc 
money  upon  any  site  of  land  purchased  for  military  purposes,  inter 
alia,  "until  the  written  opinion  of  the  Attorney  General  shall  be  had 
in  favor  of  the  validity  of  the  title."  Before  payment  can  be  made 
for  any  lapd  acquired  by  purchase,  condemnation,  or  donation,  the 
title  must  be  approved  by  the  Attorney  General.  C.  12154,  Mar.  31, 
1902;  15611,  Dec.  15,  1903.  Held,  however,  where  it  was  proposed 
to  reimburse  the  city  of  Manila  for  a  gun  shed  or  storehouse  erected, 
out  of  insular  funds  for  mihtary  purposes,  on  lands  of  the  city,  that 
such  reimbursement  might  legally  be  made  from  the  appropriation 
"barracks  and  quarters";  that  in  practice  appropriations  for  similar 
purposes  have  been  used  in  erecting  temporary  shelter  for  the  Army 
without  first  acquiring  title  to  the  sites  of  the  same,  and  that  in  such 
cases  section  355,  R.  S.,  does  not  apply.  C.  12347,  Apr.  1,  1902; 
13680,  Nov.  25,  1902. 

»  Cherokee  Nation  v.  Kans.  Ry.  Co.,  135  U.  S.,  641,  659. 

2  Compare  subsequent  opinion  of  Attorney  General,  in  20  Opins,,  628. 

31106°— 12 58 


914  PUBLIC   PROPERTY   II  A  6   a. 

II A  6  a.  Held  with  reference  to  the  purchase  of  land  at  Pine  Plains, 
N.  J.,  where  the  option  bound  the  owners  of  the  property  to  give  a 
''good  and  sufficient  full  covenant  deed  *  *  *  free  and  clear 
from  all  *  *  *  incumbrances/'  but  did  not  include  any  obliga- 
tion to  furnish  an  abstract  of  title,  that  under  the  American  rule  where 
a  contract  of  sale  does  not  require  the  seller  to  furnish  one,  he  is  not 
bound  to  do  so ;  and  that  if  the  land  is  to  be  purchased,  the  expense  of 
procuring  an  abstract  of  title  would  be  a  proper  charge  against  the 
appropriation  for  the  property.^  G.  25 446 ,  Aug.  26,  1909.  Held, 
also,  that  the  expense  of  survey  would  be  a  proper  charge  against  the 
appropriation  if  the  land  is  to  be  acquired  by  purchase.  C.  25446, 
Nov.  11,  1909.  Further  held,  after  it  had  been  found  necessary  to 
acquire  certain  tracts  by  condemnation  proceedings,  that  since  the 
expenses  for  abstracts  were  incurred  when  it  was  intended  to  pur- 
chase the  property,  they  could  not  be  considered  a  part  of  the  expenses 
of  condemnation,  and  were  properly  payable  from  the  appropriation 
for  the  property.  C.  25446,  Feh.  16,  1910.  With  reference  to  the 
expense  of  serving  offers  in  condemnation  proceedings  held  that  they 
were  a  part  of  the  expenses  of  the  proceedings  and  could  not  therefore 
be  paid  from  the  appropriation  for  the  property .^  C.  2544^ ,  -^<^^'  ^^; 
1910. 

II  A  6  b.  The  title  to  lands  purchased  on  account  of  the  United 
States  is  not  properly  assured  by  a  certificate  of  ''no  liens, ''  signed  by 
the  attorney  who  made  the  abstract  of  title.  The  proper  person  to 
make  such  a  certificate  is  the  custodian  of  the  records  of  judgment 
and  other  record  liens  in  the  county  in  which  the  land  is  located.^  P. 
33,  292,  July,  1889. 

II  A  6  b  (1).  Where  the  Attorney  General  certified  the  title  to 
land  in  Texas,  subject  to  a  vendor's  lien  for  purchase  money,  and  the 
person  having  said  lien  could  not  be  located,  Jield  that  as  the  deed 
recited  that  the  money  was  "secured  to  be  paid,"  the  terms  of  the 
sale  should  be  regarded  as  excluding  the  implied  or  equitable  lien  for 
the  payment  of  the  purchase  money  ;'^  but  that,  assuming  that  the 
circumstances  did  not  exclude  the  lien,  being  an  implied  or  equitable 
one  only,  it  would  not  survive  the  statute  of  limitations  as  applied  to 
the  deed  secured  thereby.^  Advised,  therefore,  that  the  conveyance 
be  accepted,  secured  by  a  certified  check  in  the  amount  of  the  deed. 
C.  21021,  Dec,  1906.  ^ 

II  A  6  b  2.  Where,  in  the  purchase  of  land  for  fortifications,  title 
was  encumbered  by  the  lien  of  a  judgment  against  one  of  the  vendors, 
who  appealed  the  case,  held  that  there  was  no  legal  objection  to  mak- 
ing the  purchase  under  an  agreement  to  withhold  a  portion  of  the 
purchase  price  until  the  removal  of  the  lien.     C.  26834,  June  6,  1910. 

1  See  III  Comp.  Dec,  216;  VIII  id.,  212,  IX  id.,  569.  With  reference  to  the  act 
of  Mar.  2,  1889  (25  Stat.  941),  providing  that  in  procuring  sites  for  public  buildings  the 
Attorney  General  shall  require  the  grantors  to  furnish,  without  expense  to  the  Govern- 
ment, "all  requisite  abstracts,  '  etc.,  the  comptroller  held  that  this  statute  did  not 
apply  in  procuring  sites  for  fortifications  under  the  War  Department.  Ill  Comp.  Dec. , 
216. 

2  I  Comp.  Dec,  317;  II  id.,  202,  III  id.,  216;  IX  id.,  569-572. 

^  See  G.  O.  47  of  1881,  for  Attorney  General's  regulations  as  to  making  deeds,  prov- 
ing title  to  lands,  etc. 
*  Houston  V.  Dickson  (64  Texas,  79);  29  A.  &  E.  Encyc.  of  Law,  2d  ed.,  742. 
^  Pitschki  V.  Anderson  (49  Texas,  3),  and  Howard  et  al.  v.  Windom  (86  id.,  561). 


PUBLIC   PROPERTY   11   A  6   C.  915 

II  A  6  c.  A  grant  of  land  for  a  particular  use  is  sometimes  held  to 
constitute  a  qualified  or  determinable  fee,  so  that  if  the  land  is  put  to 
other  uses  it  reverts  to  the  grantor;  but  where  the  proposed  use  is 
kept  up  the  grantor  can  not  claim  the  property  under  his  right  of 
reverter  because  it  is  also  put  to  another  use,  "unless  by  the  grant 
the  use  is,  by  words  excluding  any  other  use,  restricted  to  the  purpose 
recited."*  Held,  therefore,  that  land  acquired  for  military  purposes, 
subject  to  such  limited  use,  might  be  leased  temporarily  without 
endangering  the  title  thereto.  C.  4100,  Oct.  27,  1898.  Similarly 
lield,  with  reference  to  the  issue  of  a  permit  to  the  Treasury  Depart- 
ment for  a  life-saving  station  on  the  military  reservation  of  Fort 
Ontario,  N.  Y.,  which  was  granted  by  the  State  for  military  purposes 
\\  Ith  a  provision  for  reversion  to  the  State  whenever  it  should  cease 
(()  be  occupied  for  such  purposes,  that  the  proposed  permission,  being  a 
ivvocable  one,  and  the  reservation  as  a  whole  continuing  to  be  occu- 
])ied  for  military  purposes,  the  proposed  permit  would  not  lead  to  any 
legal  complications.  C.  28650,  July  8,  1911.  Held,  also,  that  the 
Gettysburg  National  Cemetery,  which  was  acquired  for  the  burial  of 
soldiers  who  fell  in  defense  of  the  Union  in  the  Battle  of  Gettysburg, 
might  be  used  for  the  burial  of  other  persons  specified  in  section  4878 
R.  S.,  including  deceased  soldiers  oi  the  w^ar  with  Spain,  without 
impairing  title  to  the  property.     C.  6246,  Nov.  10,  1898. 

II  A  6  0  (1).  The  State  of  North  Carolina  ceded  to  the  United 
States,  by  an  act  of  its  legislature  of  1794,  the  land  of  the  present  mili- 
tary reservation  at  Southpnrt,  N.  C,  the  site  of  old  Fort  Johnson.  A 
ccnidition  of  the  deed  of  cession  was  to  the  effect  that  a  fortification 
should  be  erected  on  the  land  within  three  years  and  be  maintained 
forever  thereafter  for  the  public  service,  or  the  land  should  revert  to 
the  State.  The  time  allowed  was  repeatedly  extended,  the  last  exten- 
sion expiring  in  1818,  when  a  fortification  had  been  constructed  if  not 
fully  completed.  The  fort  has  long  since  ceased  to  be  garrisoned.  In 
1889  an  individual  citizen  ''entered "  the  site  as  State  land.  Held  that 
this  act  was  without  legal  authority  or  effect;  that  the  condition  sub- 
sequent in  the  deed  was  one  of  the  breach  of  which  the  grantor,  the 
State,  could  alone  take  advantage;  and  that,  as  the  State  had  not 
proceeded  to  re-enter  for  such  breach,  the  United  States  was  not 
ousted  and  could  legally  continue  to  hold  the  premises.^  P.  36, 
107,  Oct,  1889;  C.  13448,  Oct.  24,  1902;  19419,  Apr.  13,  1906. 

Certain  lands  were  granted  to  the  United  States  for  canal  purposes, 
and  it  was  expressly  stipulated  in  the  deed  that  the  same  should 
be  ''occupied,  used,  and  employed  in  and  for  no  other  use  or  object 
whatever."  A  revocable  license  was  granted  by  the  Secretary  of  War 
to  a  bridge  company  to  enter  upon  and  lay  a  temporary  railway  over 
a  part  of  such  lands.  Held  that  this  was  a  mere  permission  for  a  tran- 
sient use  not  inconsistent  with  the  grant ;  and  that,  whether  the  stipu- 
lation in  the  deed  was  construed  to  be  a  mere  covenant  or  a  condition 
subsequent,  there  was  here  no  such  diversion  of  the  premises  from  the 
purposes  for  which  they  were  granted  as  to  work  a  forfeiture.^  R.  55, 
37,  Sept.,  1886. 

^  See  leading  cases  in  American  Law  of  Real  Property,  vol.  2,  pp.  24-27. 
^  See  Schulenberg  v.  Harriman,  21  Wallace,  44. 

^  See  2  Washburn  on  Real  Property,  6;  McKelway  v.  Seymour,  29  N.  J.  Law,  231; 
Chapin  v.  School  Dist.,  35  N.  H.,  452;  Thornton  v.  trammel,  39  Ga.,  202. 


916  PUBLIC   PROPERTY  II   A  6   d. 

II  A  6  d.  Held  J  with  reference  to  the  deposit  of  money  with  the 
clerk  of  court  in  condemnation  proceedings  of  land  at  Pine  Plains, 
N.  Y.,  that  the  investigation  of  the  title  by  the  United  States  attorney 
in  charge  of  the  proceedings,  the  approval  of  the  same  by  the  United 
States,  together  with  the  assent  of  the  Department  of  Justice,  may  be 
regarded  as  a  sufficient  compliance  with  the  statute  to  justify  the 
proposed  deposit.     C.  254^.6,  June  1,  1910. 

II  A  6  6.  On  the  question  of  whether  possession  could  legally  be 
taken  of  property  under  a  decree  of  condemnation  of  the  same — an 
appeal  having  been  taken  therefrom — upon  tender  of  the  amount 
awarded,  and  buildings  be  commenced  thereon,  lield  that  while,  under 
the  decisions  of  the  courts,  possession  might  be  taken  of  the  property,* 
in  view  of  the  requirements  of  section  355,  R.  S.,  no  public  money  could 
be  expended  thereunder,  since  title  to  land  acquired  by  condemnation 
''does  not  vest  until  the  amount  of  compensation  is  ultimately  fixed 
and  made  to  the  owner, "^  and  the  Attorney  General  could  not,  there- 
fore, approve  title.  G.  8649,  Feb.  8,  1901,  and  May  13,  1902;  15110, 
Jan.  8, 1907.  Held,  also,  that  title  to  lands  transferred  to  the  Govern- 
ment by  deed  vests  in  the  United  States  only  when  the  Attorney 
General  approves  the  title.     0.  15110,  Jan.  8,  1907.^ 

II  A  6  f.  Where  part  of  a  tract  of  land  was  purchased  for  a  lump 
consideration,  the  deed  describing  it  as  containing  150  acres,  more  or 
less;  and  later  an  agreement  was  made  with  the  grantor  for  the  balance 
of  the  tract  at  $100  per  acre;  and  on  survey  of  the  same  it  was  found 
that  the  land  originally  conveyed  contained  193  acres;  and  the  ques- 
tion was  raised  as  to  whether  the  Secretary  of  War  could  legally  add 
to  the  purchase  price,  in  procuring  the  said  addition,  sufficient  to 
compensate  the  owner  for  the  excess:  Tield  that  he  could  not  legally 
do  so,  since  this  would  in  effect  be  the  application  of  that  amount,  not 
to  the  purchase  of  the  additional  land,  but  to  the  satisfaction  of  a 
claim.  C.  9469,  Jan.  3,  1901.  And  where  the  United  States  pur- 
chased certain  tracts  for  the  Fort  Oglethorpe  target  range  by  deeds 
calling  for  a  lump  consideration  for  the  lands  conveyed  thereby, 
although  describing  the  same  as  containing  a  specific  number  of  acres, 
more  or  less,  and  it  was  found  that  owing  to  the  fact  that  the  tier  of 
land  lots,  instead  of  containing  160  acres  each  as  described  in  the 
official  survey,  contained  only  about  120  acres  each,  so  that  there 
was  a  shortage  of  about  22  per  cent  of  the  supposed  area  of  the  tracts 
purchased:  held  that  as  the  tracts  were  purchased  in  gross  and  not  b}^ 
the  acre,  and  as  there  was  no  evidence  of  fraud  on  the  part  of  the 
grantors,  the  United  States  could  not  recover  on  account  of  the  short- 
age.''    G.  24464,  Sept.  5  and  23,  1911. 

II  A  6  g.  Where  lands  were  conveyed  to  the  United  States  by  deed 
with  the  reservation  of  the ''right  to  cut  and  remove  *  *  *'  tini- 
\yQY  *  *  *  within  five  years  from"  its  date,  on  the  application 
of  the  grantor  for  an  extension  of  one  year  in  which  to  remove  the 

^  As  to  right  of  possession  upon  tender  or  payment  into  court,  see  Packard  v.  Bergen 
Neck  R,  Co.  (48  N.  J.  Eq.,  281);  Mercer  &  S.  Ry.  Co.  v.  Delaware  &  B.  B.  R.  Co.  (26 
N.  J.  Eq.,  464);  Redman  v.  Philadelphia,  etc.  R.  Co.  (33  N.  J.  Eq.,  165) ;  Penna  R.  Co.  v. 
National  Docks  R.  Co.  (53  N.  J.  Eq.,  178);  Jefferson  v.  N.  Y.  R.  Co.  (12  N.  J.  L.  J.,  175); 
Am.  &  Eng.  Encyc.  of  Law,  2d  Ed.,  vol.  10,  1137-1138. 

2  Cherokee  Nation  v.  Kansas  Ry.  Co.  (135  U.  S.,  659). 

3  Ryan  v.  United  States  (136  U.  S.,  86). 
*  24  L.  R.  A.,  525;  68  id.,  908. 


PUBLIC   PROPERTY  IT  A  6  h.  917 

timber,  he  having  been  in  error  as  to  the  expiration  of  the  time,  held 
that  any  rights  under  this  reservation  expired  with  the  time  lirnit, 
and  that  such  of  the  timber  as  remained  unsevered  at  the  expiration 
of  the  time  Hmit  was  the  property  of  the  United  States/  so  that  the 
Secretary  of  War  could  not  legally  grant  the  request.  C.  21027, 
Sept.  27,  1911. 

II  A  6  h.  On  the  question  of  whether  the  opinion  of  the  Attorney 
General  is  requu'ed,  under  section  355,  R.  S.,  where  an  easement  is 
jicquired  for  a  pipe  line  for  a  water  main  to  a  military  reservation, 
helxl  that  where  no  lands  are  purchased,  but  only  an  easement  therein 
is  acquired,  or  where  the  purchase  is  not  for  the  erection  of  struc- 
tures such  as  are  described  in  said  section,  whether  the  interest 
acquired  be  a  leasehold  interest  or  an  easement,  temporarv  or  per- 
petual, the  opinion  of  the  Attorney  General  is  not  required  by  law, 
and  the  decision  of  the  proper  department  as  to  the  sufficiency  of  the 
title  for  the  purposes  for  wnich  tne  same  is  required  is  not  subject  to 
review  by  the  accounting  officers.^  C.  11585,  Nov.  30,  1907.  Simi- 
larly lield,  with  respect  to  the  donation  to  the  United  States  of  a  per- 
petual easement  for  a  levee.     C.  22661,  Jan.  25,  1908. 

II  A  7.  Held,  in  the  matter  of  the  proposed  settlement  of  suit 
regarding  title  to  lands  claimed  as  a  military  reservation  at  Rockaway 
Point,  Long  Island  Sound,  N.  Y.,  that  suit  having  been  instituted  by 
the  United  States  in  respect  to  such  lands,  the  Attorney  General 
would  have  authority,  under  his  power  to  compromise  the  suit,  to 
consent  to  a  decree  by  which  the  title  to  a  portion  of  the  premises 
would  be  adjudged  to  the  United  States  and  the  title  to  another  por- 
tion of  the  premises  in  dispute  to  the  defendants;  that  such  pro- 
cedure would  not  be  contrary  to  the  provisions  of  section  3736,  R.  S.,^ 
and  that  no  special  authority  of  Congress  would  be  necessary  to  the 
acceptance  oi  a  conveyance  of  the  portion  to  be  awarded  to  the 
United  States.     C.  25778,  Aug.  4,  1910. 

II  A  8.  Held,  that  joint  resolution  No.  18,  of  April  11,  1898  (30 
Stat.  737),  providing  for  the  erection  of  a  temporary  fort  or  fortifica- 
tion in  case  of  emergency,  with  the  consent  of  the  owner  and  without 
compliance  with  section  355  R.  S.,  although  passed  just  prior  to  the 
outbreak  of  the  War  with  Spain,  has  always  been  regarded  as  per- 
manent legislation.^    0.  15611,  Feb.  21,  1908. 

II  B.  The  Constitution  vests  in  Congress  the  exclusive  power  to 
dispose  of  the  property  of  the  United  States,  real  or  personal.''  The 
Secretary  of  War,  in  the  absence  of  authority  from  Congress,  can  not 
ahenate  land  of  the  United  States.  Thus,  where  a  company  pro- 
posed to  cut  out  and  remove  a  part  of  a  dam  (some  140  feet)  on  Fox 
River,  Wis.,  belonging  to  the  United  States,  and  to  substitute  another, 
as  a  private  improvement,  below,  held  that  this  was  a  proposition 
for  the  alienation  by  an  executive  official  of  public  property  and 
could  not  legally  be  entertained.  P.  29,  259,  Jan.,  1889;  C.  18074, 
Aug.  19,  1902;  14454,  Apr.  17,  1903;  19896,  June  16,  1906. 

^  Adkins  v.  Huff,  3  L.  R.  A.  [n.  s.],  649,  and  notes  thereto.  See,  also,  authorities 
cited  in  55  L.  R.  A.,  513. 

2  XII  Comp.  Dec,  691. 

3  See  Neilson  v.  Lagow,  12  How.  98;  U.  S.  v.  Lane,  3  McLean,  365  (26  Fed.  Caa., 
No.  15559). 

*  16  Op.  Atty.  Gen.  477. 


918  PUBLIC   PROPEETY  II  B  1. 

Where  the  title  to  a  small  portion  of  the  land  acquired  for  a  mili- 
tary reservation  and  post  was  disputed  by  a  private  individual, 
held  that  the  Secretary  of  War  had  no  jurisdiction  to  pass  upon  and 
decide  such  a  question.  He  could  not  surrender  such  portion,  even 
if  he  believed  the  claim  to  be  sound,  any  more  than  he  could  surrender 
the  entire  reservation,  to  a  claimant  who  could  show  evidence  of  an 
outstanding  title  in  himself.  It  is  not  for  the  executive  officers  of  the 
Government  to  determine  whether  the  United  States  has  a  good  title, 
or  any  title  at  all,  to  lands  placed  under  their  charge  as  property  of 
the  United  States.  Such  questions  are  for  the  courts  to  decide. 
P.  62,  U2,  and  63,  90,  Bee,  1893;  G.  19896,  June  16, 1906, 

II  B  1.  A  statute  may  grant  title,  and  a  statutory  grant  is  equiva- 
lent to  a  patent — is,  in  fact,  in  the  words  of  Attorney  General  Bates, 
'Hhe  highest  and  strongest  form  of  title  known  to  our  law."  *  Thus 
where  a  statute  vests  in  terms  in  an  individual  or  corporation  the  title 
of  the  United  States  to  certain  land  or  other  public  property,  in  occu- 

Eation  or  charge  of  the  military  authorities,  no  deed  or  conveyance 
'om  the  Secretary  of  War  is  necessary,  all  that  is  required  being  that 
the  proper  military  commander  or  officer  relinquish  or  turn  over  the 
premises  or  property  to  the  grantee.  E.  37,  696,  June,  1876;  4^, 
28,  Oct.,  1877.  And  where  the  grant  by  the  statute  is  made  upon  a 
condition  precedent,  the  title,  upon  the  condition  being  performed 
by  the  party,  becomes  complete  without  any  written  deed.  Thus 
where  an  act  of  Congress  granted  to  a  railroad  company  certain 
land  for  buildings  and  a  right  of  way  within  the  limits  of  a  military 
reservation,  upon  the  company's  filing  with  the  Secretary  of  the  Inte- 
rior a  map  or  its  route  to  be  approved  by  him,  and  also  locating, 
under  the  direction  of  the  Secretary  of  War,  the  land  required  for  its 
buildings  and  roadway;  Tield  that,  upon  these  conditions  being  duly 
performed,  a  complete  title  vested  in  the  company.  R.  36,  130, 
Dec,  1874' 

II  B  2.  An  act  of  Congress  authorized  the  Secretary  of  War  simply 
to  ^'cede'^  to  a  city  certain  piers.  Held  that  the  term  ''cede"  called 
for  a  simple  absolute  grant,  and  that  a  deed  of  bargain  and  sale  for 
a  valuable  consideration  was  not  the  correct  form  of  transfer;  fur- 
ther, that  as  the  authority  was  in  terms  to  cede,  without  more,  the 
Secretary  would  not  be  empowered  to  attach  to  the  grant  any  cove- 
nants or  conditions  as  to  the  use  or  care  of  the  piers  or  otherwise. 
Should  the  city  hereafter  permit  its  piers  to  become  an  obstruction  to 
navigation,  there  is  a  remedy  provided  by  law.  R.  S3,  381,  Apr., 
1887. 

An  act  of  Congress  authorized  and  directed  the  Secretary  of  War 
to  sell  a  certain  parcel  of  land  at  public  auction  and  to  convey  the 
same  to  the  purcliaser.  The  act  also  prescribed  in  detail  the  man- 
ner of  advertising,  &c.  Held  that  the  deed  should  preferably  contain 
recitals  showing  that  the  provisions  of  the  act  of  Congress  under 
which  it  was  given  were  complied  with.     C.  631,  Nov.,  1894- 

II  B  3.  It  is  well  settled  that  while  the  United  States  is  entitled  to 
avail  itself  of  statutes  of  limitation,  it  is  not  bound  thereby.^  Held, 
therefore,  that  the  occupancy  of  portions  of  the  Washington  Aqueduct 

1  11  Op.  Atty.  Gen.  49.  And  see  9  id.  346;  12  id.  254;  14  id.  320;  Terrett  v.  Taylor, 
9  Cranch,  50. 

2  See  U.  S.  V.  Thompson,  98  U.  S.  486. 


PUBLIC  PROPERTY  II  B  3  a.  919 

lands  by  private  parties,  however  long  continued,  gave  them  no  title 
thereto.  C.  1069,  Mar.  13,  1895.  And  where  a  claim  of  a  right  of 
way  for  a  road  tlirough  a  military  reservation  was  based  on  continued 
use,  held  that  no  title  was  acquired  by  user  since  the  reservation  was 
purchased,  as  it  is  well  settled  that  no  title  against  the  Government 
can  be  acquired  by  adverse  possession.  G,  9003,  Oct.  3,  1900.  Also 
held,  with  respect  to  a  claim  of  prescriptive  title  to  water  power  of  the 
Niagara  River,  on  the  ground  of  long  possession  of  the  riparian  land 
"with  the  belief  and  claim  of  title  to  the  water  power,  that  such 
claim  was  without  legal  foundation,  and  that,  both  under  the  cominon 
law  and  the  civil  law,  title  can  not  be  acquired  by  prescription 
against  the  sovereign.^  C.  19094,  Sept.  24,  1906;  19896,  June  16, 
1906. 

II  B  3  a.  Held  that  the  title  and  possession  of  the  United  States  to 
and  of  land  situate  at  El  Paso,  Tex.,  duly  purchased  for  cemetery 
purposes,  would  properly  be  protected  against  a  continuous  trespass 
on  the  part  of  the  municipality  in  cutting  a  street  through  the  land 
by  an  injunction  sued  out  in  the  proper  court,  the  remedy  by  suit  for 
damages  being  inadequate.^    R.  4^,  240,  July,  1885. 

Wliere  certain  persons  had  entered  unlawfully  upon  a  military 
reservation  and  had  proceeded  to  cultivate  the  soil  of  the  same  for 
their  personal  benefit  and  to  lead  off  water,  needed  for  the  use  of  the 
garrison,  in  order  to  irrigate  the  ground  so  cultivated — advised  that 
the  commandant  be  instructed  to  give  such  persons  reasonable  notice 
to  quit  with  their  property,  and  if  they  did  not  comply,  to  remove 
them  by  military  force  beyond  the  limits  of  the  reservation.^  R.  42, 
256,  Apr.,  1879;  C.  12941,  July  16,  1902;  16983,  Oct.  8.  1904. 

II  B  3  b.  A  United  States  officer  or  agent  in  charge  of  lands  of  the 
United  States  who  is  made  defendant  in  a  suit  in  a  United  States  or 
a  State  court  in  which  title  to  such  lands  is  claimed  by  an  individual 
should  duly  appear  and  answer  in  court,  and  is  not  authorized  to 
interpose  physical  force  against  the  service  of  due  process  of  the  court 
in  such  a  suit,  however  groundless  he  may  believe  it  to  be.  So 
advised  that  the  military  force  employed  to  protect  the  possession  by 
the  United  States  of  a  cemetery  reservation  at  El  Paso,  Tex.,  to 
which  title  was  claimed  in  a  suit  instituted  by  a  citizen,  be  with- 
drawn, or  at  least  ordered  to  obstruct  in  no  manner  the  due  execution 
of  judicial  process  on  the  premises.     P.  52,  182,  Feb.,  1892. 

II  C.  Under  the  general  rule,  the  purchase  of  land  bounded  by 
streets  or  highways  gives  title  to  the  fee  to  the  center  of  the  street 
or  highway,  where  such  title  is  in  the  grantor,  unless  the  conveyance 
excludes  the  street  or  highway.  Held,  therefore,  where  title  to  lots 
of  a  subdivision  was  acquired  for  the  enlargement  of  a  military 
reservation,  that  on  the  vacation  of  the  streets  within  the  military 

^  That  adverse  possession  can  not  give  title  as  against  the  Government,  see  Lindsey 
V.  Miller,  6  Pet.  666;  Jordan  v.  Barrett;  4  How.  169;  Burgess  v.  Gray,  16  id.  448; 
Frisbie  v.  Whitney,  9  Wall.  187;  Gibson  v.  Choteau,  13  id.  92;  Oaksmith's  Lessee  v. 
Johnston,  92  U.  S.  343;  Sparks  v.  Pierce,  115  id.  408. 

''The  only  manner  in  which  title  to  lands  owned  by  the  United  States  can  be 
acquired  is  under  some  act  of  Congress  directly  making  the  grant  or  authorizing  it  to 
be  made  by  some  person  or  officer."     1  Cyc,  1111. 

2Pomeroy,  Eq.  Jur,  sees.  138,  1347,  1356. 

^  As  to  the  authority  to  remove  trespassers  from  military  reservations,  see  3  Opins. 
At.  Gen.,  268;  9  id.,  106,  476;  G.  O.  74,  Hdqrs.  of  Army,  1869. 


920  PUBLIC   PROPERTY  II  D. 

reservation  the  unencumbered  title  would  be  in  the  Government. 
C.  15110,  Dec.  9,  1911;  19435,  Apr.  2  and  July  2,  1906;  Nov.  19, 
1908.  Held,  also,  that  if  the  title  did  not  pass  with  the  lots,  the 
Government,  by  the  purchase  of  the  several  lots  of  the  subdivision, 
acquired,  as  appurtenant  thereto,  a  private  easement  or  servitude 
for  egress  and  ingress  to  the  several  lots.  C.  15110,  Dec.  9,  1911; 
19435,  July  2,  1906,  July  8,  1907,  and  Nov.  19,  1908.  Held,  further, 
where  the  entire  subdivision  was  acquired  and  the  streets  simply- 
led  into  the  reservation,  on  the  application  of  the  town  to  sell  the 
streets  for  a  considerable  sum,  that  the  streets  were  virtually  aban- 
doned, and  if  so,  title  was  in  the  United  States;  and  that,  at  most, 
the  title  of  the  town  would  be  a  naked  one,  barren  oi  value  to  the 
town;  and  advised  that  the  purchase  be  not  made.  C.  19435, 
July  2,  1906;  Feb.  8  and  Mar.  19,  1909. 

II  D.  Where  land  proposed  to  be  conveyed  by  a  State  to  the  United 
States  for  the  purpose  of  fortifications  was  described  in  the  proffered 
deed  as  extendmg  to  the  sea  and  in  a  line  along  the  sea,  held  that  such  a 
deed  would  convey  only  land  extending  to  and  bounded  by  high-water 
mark,  and  advised  that  the  grant  should  be  so  expressed  as  specifically 
to  include  the  shore  to  low-water  mark,  and  should  also  embrace  such 
water-covered  lands  as  would  be  sufficient  to  prevent  the  erection  by 
the  authority  of  the  State  of  structures  that  might  interfere  with  the 
proper  use  of  the  land  for  purposes  of  fortifications.  P  64,  249,  Mar., 
1894'  Where,  however,  under  the  laws  of  the  State,  a  private  owner's 
title  extends  to  ordinary  low-water  mark,  so  that  a  conveyance  bound- 
ing the  lands  ''on  the  sea  or  salt  water"  would  give  title  to  low-water 
mark,^  held  that  a  conveyance  of  ''all  that  portion  of  Peddocks  Island  . 
*  *  *  lying  north  of  a  straight  line  across  the  island"  would  give 
.title  to  low-water  mark.     C.  14.897,  July  7,  1903. 

II  D  1.  As  between  the  United  States  and  a  State,  the  soil  of 
the  bed  of  navigable  waters  and  of  the  shores  of  tide  waters  below 
high-water  mark,  or — on  rivers  not  reached  by  the  tide — the  soil 
of  the  shores  below  the  ordinary  water  line  (as  not  affected  by  freshet 
or  unusual  drought),  belongs  to  the  State.  But  natural  accretions 
to  land  owned  by  private  individuals  belong  to  the  owners  of  the 
land.2  Thus,  held  that  the  accretions  to  Hog  Island  in  the  mouth 
of  the  Missouri  River  belonged,  not  to  the  United  States  or  to  the 
State  of  Missouri,  but  to  the  owner  of  the  island.  R.  51,  636,  Mar., 
1887. 

II  E.  Held  that  the  granite  monument  erected  by  the  United 
States,  under  an  appropriation  by  Congress  for  the  purpose,  on  land 
belonging  to  the  State  at  Newburgh,  N.  Y.,  and  known  as  Wasliing- 
ton's  Headquarters,  became,  in  the  absence  of  any  provision  in  the 
statute  or  agreement  with  the  State,  the  property,  as  a  fixed  improve- 
ment, of  that  State.     P.  49,  20,^  Aug.,  1891. 

II  E  1 .  Held  that  the  principle  that  buildings  erected  on  the  land 
of  another  without  his  consent  become  his  property,  did  not  apply  to    , 
buildings  erected  by  the  United  States  on  land  occupied  jure  oelh  by  I 
the  Army  in  an  enemy's  country;  but  that,  on  subsequently  surrender-  1 
ing  the  land  to  the  owner,  the  military  authorities  might  legally 

*  Storer  v.  Freeman,  6  Mass.  435. 

2  As  to  change  of  boundary  by  gradual  erosion  or  accretion,  see  Philadelphia  Co.  v. 
Stimson,  223  U.  S.,  605. 


PUBLIC   PROPERTY  II  E  2.  921 

remove  and  retain  or  dispose  of  the  buildings.  R.  35,  565,  Sept., 
1875. 

II  E  2.  Temporary  buildings  erected  by  military  orders  on  land 
of  the  United  States  at  a  military  post,  to  serve  only  a  temporary 
purpose,  are  in  general  personal  property  of  the  United  States  which 
may  be  removed  by  the  direction  or  authority  of  the  Secretary  of 
War.^  But  if  the  same  be  permanent  structures  and  real  estate,  the 
authority  of  Congress  is  necessary  to  their  removal.  P.  58,  162y 
Feb.,  1893. 

II  E  3.  Where  a  post  commander,  without  authority,  took  pos- 
session of  land  of  the  United  States,  for  the  purpose  of  erecting  there- 
on a  building  for  his  personal  use,  and  havmg  erected  it  assumed  to 
hold  and  dispose  of  it  as  his  own  property,  tield  that  his  act  was 
unauthorized  and  illegal,  and  that  he  acquired  no  legal  estate  in  the 
building.  And  similarly  lield  where,  without  authority,  he  permitted 
an  enlisted  man  of  his  command  to  use  land  of  the  United  States  for 
the  erection  thereon  of  a  dwelling  and  to  hold  and  dispose  of  such 
dwelling  as  his  own  property.     P.  63,  6J^,  Bee,  1893. 

II  E  4.  Under  contract  for  the  purchase  of  the  required  amount 
of  land  for  a  military  reservation  for  the  amount  available  in  the 
appropriation,  it  became  necessary  to  have  a  small  portion  of  the 
lands  condemned,  and  the  cost  of  the  land  condemned  and  of  the  con- 
demnation proceedings  were  deducted  from  the  contract  price  and 
settlement  made  under  the  contract  on  that  basis.  On  the  claim  for 
compensation  for  the  buildings  and  for  the  use  of  the  same  on  the 
tract  condemned,  said  contract  having  reserved  the  improvements, 
lield  that  under  the  condemnation  proceedings  the  Government  ac- 
quired the  legal  title  to  the  buildings  but  that  the  equitable  title 
was  in  the  other  party  to  the  contract.  C.  2952,  Feb.  20,  1897,  Dec. 
7,  1898,  June  13  and  Oct.  11,  1901. 

II  F.  Wood  growing  on  a  military  reservation  is  the  property  of 
the  United  States.  So,  lield  that  a  contractor  who  cut  such  wood  to 
fill  a  contract  made  by  him  with  the  United  States  to  furnish  wood 
to  a  military  post  could  not  legally  be  allowed  to  remove  or  dispose 
of  the  same  as  his  own  property.     P.  48,  218,  July,  1891. 

II  F  1.  Held  that  the  act  of  March  3,  1875,  c.  151,  "  to  protect  orna- 
mental and  other  trees  on  Government  reservations  and  on  lands  pur- 
chased by  the  United  States,"  etc.,  which  makes  penal  the  unlawful 
cutting  or  injuring  of  such  trees,  was  clearly  not  intended  to,  and  did 
not,  preclude  the  reasonable  cutting  of  wood  on  military  reservations, 
under  the  direction  of  the  proper  officer,  for  the  supplying  of  the  nec- 
essary fuel  for  the  garrisons  stationed  thereon ;  the  authority  to  estab- 
lish a  reservation,  where  in  fact  lawfully  existing,  being  deemed  to 
include  an  authority  to  efficiently  maintain  the  same  when  established. 
R.  39,  8,  May,  1876;  C.  20531,  Oct.  15,  1906. 

III  A.  A  reservation  may  be  defined  as  a  portion  of  the  public  lands 
of  the  United  States  which  is  withdrawn  from  the  operation  of  the 
land  laws  and  set  apart  by  Congress  or  by  the  President  under  author- 
ity of  law  for  some  administrative  purpose. ^     C.  16691,  Sept.  10,  1902. 

^  But  such  buildings  can  not  be  sold  without  the  authority  of  Congress.     Lear  v. 
U.S.,  50  Fed.  Rep.,  65. 
2  See  7  Op.  Atty.  Gen.,  571,  574;  Grisar  v.  MacDowell  (6  Wall.,  363,  381). 


922  PUBLIC   PROPEETY  III   A  1. 

Ill  A  1 .  A  military  reservation,  being  simply  territory  of  the 
United  States  withdra^vn  from  sale,  preemption,  etc.,^  the  mere  fact  of 
the  establishing  of  such  a  reservation  can  not  affect  the  power  of  the 
State  or  Territorial  authorities  (according  as  it  may  be  located  in  a 
State  or  Territory)  to  serve  civil  or  criminal  jjrocess  therin,  or  to 
attach  or  levy  upon  personal  property  ^  except  in  so  far  of  course  as 
such  service  may  be  specially  precluded  or  restricted,  by  law,  as  to 

1  The  Constitution  (Art.  IV,  sec.  3,  par.  2)  has  vested  in  Congress  the  exclusive  power 
"to  dispose  of  and  make  all  needful  rules  and  regulations  respecting  the  territory ^^ 
(held  in  U.  S.  v.  Gratiot,  14  Peters,  537,  to  mean  "lands")  "or  other  property  belong- 
ing to  the  United  States. ' '  As  a  consequence  perhaps  of  the  indefiniteness  of  this  grant 
(see  7  Op.  Atty.  Gen.,  574)  no  general  enactment  providing  for  the  setting  apart  of 
land  for  military  reservations  has  ever  been  made  by  Congress.  In  a  few  cases,  indeed, 
a  special  authority  to  establish  a  military  reserve  has  been  conferred  upon  the  Presi- 
dent by  statute,  but  the  great  majority  of  the  military  reservations  heretofore  located 
or  now  existing  have  been  made  by  the  President  without  any  such  specific  authority 
whatever.  But  though  no  general  authority  has  been  directly  given  by  Congress  for 
the  reservingof  lands  for  military  purposes,  an  authority  for  the  purpose  has  been 
deemed  to  exist,  and  this  authority  is  found  in  the  usage  of  the  executive  department 
of  the  Government,  as  indirectly  sanctioned  by  Congress  in  repeated  preemption  acts, 
acts  relating  to  the  survey  of  the  public  domain,  appropriation  acts,  &c.,  in  which 
lands  reserved  for  military  purposes  by  the  President  have  been  in  general  terms 
excepted  from  sale,  exempted  from  entry,  &c.,  or  special  provision  has  been  made  for 
the  cost  of  improvements  to  be  erected  upon  the  same.  In  Grisar  v.  MacDowell,  6  Wal- 
lace, 381,  the  U.  S,  Supreme  Court,  by  Field,  J.,  observes:  "From  an  early  period  in 
the  history  of  the  Government,  it  has  been  the  practice  of  the  President  to  order,  from 
time  to  time,  as  the  exigencies  of  the  public  service  required,  parcels  of  land  belonging 
to  the  United  States  to  be  reserved  from  sale  and  set  apart  for  public  uses.  The  author- 
ity of  the  President  in  this  respect  is  recognized  in  numerous  acts  of  Congress."  The 
court  then  cites  several  statutes  as  containing  this  recognition,  including  the  preemption 
acts  of  May  29, 1830,  and  Sept.  4,  1841,  and  adds:  "The  action  of  the  President  in  the 
making  the  (military)  reservations"  (the  title  to  which  was  at  issue  in  the  particular 
case)  "was  indirectly  approved  by  the  legislation  of  Congress  in  appropriating  moneys 
for  the  construction  of  fortifications  and  other  public  works  upon  them."  And  see  12 
Op.  Atty.  Gen.,  381;  14  id.,  182;  17  id.,  258;  Wilcox  v.  Jackson,  13  Peters,  512;  U.  S. 
V.  Hare,  4  Sawyer,  653;  also  U.  S.  v.  R.  R.  Bridge  Co.,  6  McLean,  517;  1  Land  Dec. 
(Int.  Dept.)  30,  702;  6  id.,  18,  317;  13  id.,  426,  607,  628;  8  Fed.  Eep.,  883;  12  id.,  449; 
92  U.  S.,  733;  101  id.,  768;  5  Wall.,  681.  The  President,  in  setting  apart  land,  is 
regarded  as  acting  under  authority  of  Congress.     1  Land  Dec.  30. 

It  is  moreover  to  be  noted  that  the  provision  of  the  act  of  1841,  referred  to  by  the 
Supreme  Court,  has  been  incorporated  as  a  general  enactment  in  the  Bevised  Statutes, 
in  the  chapter  (Ch.  4  of  Title  XXXII)  on  preemptions,  sec.  2258  expressly  excepting 
from  the  lands  of  the  United  States  "subject  to  the  rights  of  preemption" — "lands 
included  in  any  reservation  by  any  treaty,  law,  or  proclamation  of  the  President  for  any 
purpose."  And  see  sec.  2393,  specifically  excepting  military  reservations  from  the 
operation  of  the  laws  authorizing  the  establishing  of  town  sites. 

The  "proclamation"  of  the  President  reserving  lands  for  military  purposes  is  usu- 
ally in  the  form  of  a  military  general  order,  issued  by  the  Secretary  of  War,  whose 
act  in  this,  as  in  other  administrative  proceedings  pertaining  to  the  military  adminis- 
tration, is  in  legal  contemplation  the  act  of  the  President  whom  he  represents ._  But 
no  head  of  a  department  or  executive  official  inferior  to  the  President  can,  of  his  own 
authority,  make  a  reservation  of  public  lands.  The  power  is  vested  only  in  Congress 
and  the  President.     United  States  v.  Hare,  4  Sawyer,  653,  669. 

In  this  connection  may  be  noted  the  ruling  of  Atty.  Gen.  Bates  (10  Op.,  359)  in 
opposition  to  that  of  Justice  McLean  of  the  Supreme  Court  (in  United  States  v.  The 
Railroad  Bridge  Co.,  6  McLean,  517),  but  apparently  concurred  in  by  Atty.  Gen. 
Williams  (14  Op.,  246),  to  the  effect  that  where  a  tract  of  land  of  the  United  State* 
has  once  been  legally  reserved  for  military  purposes  the  President  is  not  empowered 
in  the  absence  of  authority  from  Congress,  to  relinquish  such  reservation  and  restor 
the  land  reserved  to  the  general  body  of  the  public  lands.  See  also,  2  Land  Dec.  (Inl 
Dept.)  603,  606;  5  id.,  632;  6  id.,  19. 

2  See  opinion  of  Judge  Advocate  General  published  in  G.  O.  30,  Hdqrs.  of  Army. 
1878. 


3n. 


PUBLIC   PEOPERTY  III   A  2.  923 

military  persons  in  general.^  Where  indeed  there  has  been  a  cession 
of  exclusive  jurisdiction  over  the  land  by  the  State  to  the  United 
States,  the  question  whether  the  State  authorities  may  still  serve 
process  withm  the  reservation  on  account  of  liabilities  incurred  or 
crimes  committed  outside  of  its  limits,  will  depend  upon  the  terms  of 
the  cession.2  R.  39,  641,  May,  1878;  C.  16691,  Sept.  20,  1902,  Aug. 
5,  1904. 

Ill  A  2.  An  order  reserving  lands  for  public  purposes  is  inoperative 
as  to  lands  which  were  not,  at  the  time  of  its  issue,  subject  to  reserva- 
tion, i.  e.,  lands  which  were  not  then  public  lands.^  C.  6951,  Mar.  11, 
1899.  Held,  therefore,  that  an  Executive  order  making  a  reservation 
would  be  void  and  inoperative  as  to  lands  in  lawful  private  owner- 
ship. C.  12861,  June  24,  1902;  16691,  Sept.  10,  1902;  16663,  July 
28,  1904. 

Ill  A  3.  Where  lands  within  the  exterior  limits  of  a  military 
reservation  have  been  set  apart  by  the  President  as  a  wood  reser- 
vation for  a  military  post,  held  that  the  lands  passed  under  the  juris- 
diction of  the  War  Department  and  that  no  jurisdiction  over  them 
remained  in  the  Interior  Department  for  any  purpose.  C.  2642, 
Oct.  8,  1896  and  Oct.  8,  1901. 

Ill  A  4.  Held,  with  reference  to  the  estabUshment  of  a  military 
post  within  the  hmits  of  the  Chickamauga  and  Chattanooga  National 
Military  Park,  that  in  view  of  the  act  of  May  15,  1896  (29  Stat.  120), 
authorizing  the  park,  in  the  discretion  of  the  Secretary  of  War,  to  be 
used  for  maneuvering  purposes,  and  the  desirability  of  a  garrison  for 
the  protection  of  the  park,  it  would  be  permissible  to  select  a  portion 
of  the  park,  not  included  in  the  scheme  of  marking  the  lines  of  battle, 
upon  which  to  locate  buildings  for  the  accommodation  of  a  regiment 
of  Cavahy.     C.  12896,  June  30,  1902. 

Ill  A  5.  Under  the  treaty  with  Spain  the  ownership  of  all  pubhc 
buildings  and  lands  within  Porto  Kico,  the  Phihppine  Islands,  and 
elsewhere,  was  transferred  to  the  United  States,  and  under  the  act 
of  July  1,  1902  (32  Stat.  731),  the  President  was  expressly  authorized 
to  make  reservations  of  public  lands  in  Porto  Rico  for  public  purposes 
within  one  year  after  the  approval  of  that  act,  after  which  all  public 
lands  not  so  reserved,  with  certain  exceptions,  passed  to  the  owner- 
ship of  the  Government  of  Porto  Rico;  and  by  section  12  of  the  act 

^As  by  sec.  1237,  R.  S.,  exempting  enlisted  men  from  arrest  for  certain  debts;  or  by 
the  operation  of  the  provisions  of  the  59th  Article  of  War  as  to  the  form  to  be  observed 
in  making  criminal  arrests  of  military  persons. 

^  See  7  Op.  Atty.  Gen.,  574-5;  also  14  id.,  557.  That  it  is  "not  open  to  the  courts 
on  a  question  of  jurisdiction  to  inquire  what  may  be  the  actual  uses  to  which  any  por- 
tion of  the  reserve  is  temporarily  put."     See  Benson  v.  U.  S.,  146  U.  S.,  331. 

^  Where  an  applicant  has  complied  with  the  requisites  of  the  preemption  laws  so 
that  his  right  has  accrued  under  such  laws,  no  reservation  or  appropriation  of  the  land 
for  public  purposes  thereafter  can  defeat  his  rights.  United  States  v.  Fitzgerald 
(15  Pet.,  407).  "A  mere  entry  upon  land,  with  continued  occupancy  and  improve- 
ment thereof,  gives  no  vested  interest  in  it.  It  may,  however,  give  under  our  national 
land  system  privilege  of  preemption.  But  this  is  only  a  privilege  conferred  on  settlers, 
to  purchase  the  land  in  preference  to  others.  *  *  *  His  settlement  protects  him 
from  intrusion  or  purchase  by  others,  but  confers  no  right  against  the  Government." 
10  Oj).  Atty.  Gen.,  57,  These  views  were  cited  with  approval  by  the  Supreme  Court 
in  Frisbie  v.  Whitney  (9_Wall.,  187),  where  the  Court  expressly  held  that  "a  vested 
right,  under  the  preemption  laws,  is  only  obtained  when  the  purchase  money  has  been 
paid,  and  the  receipt  of  the  proper  land  officer  given  to  tne  purchaser.'-  See  also 
Yosemite  Valley  case  (15  Wall.,  77)  and  Shiver  v.  United  States  (159  U.  S.,  491). 


924  PUBLIC   PROPERTY  III  B. 

of  July  1,  1902  (32  Stat.  695),  all  public  lands  in  the  Philippine 
Islands,  except  such  lands  or  other  property  ''as  shall  be  designated 
by  the  President  of  the  United  States  for  military  and  other  reser- 
vations," were  placed  under  the  control  of  the  Government  of  said 
islands  to  be  administered  for  the  benefit  of  the  inhabitants  thereof. 
Advised  that  steps  be  taken  to  have  the  required  reservations  made. 
C.  16691,  Sept.  10,  1902.  ^ 

III  B.  Held  that  the  right  to  the  ^'free  and  open  exploration  and 
purchase"  of  mineral  lands,  accorded  to  citizens,  etc.,  by  section 
2319,  R.  S.,  could  not  authorize  an  entry  for  the  purpose  of  pros- 
pecting for  mines  upon  a  mihtary  reservation  once  duly  defined  and 
established  by  the  President;  the  mineral  lands  intended  by  the 
statute  being  clearly  such  as  are  included  within  the  ''pubhc  lands" 
of  the  United  States.     B.  S8,  596,  May,  1877;  C.  10727,  June  22, 1901 . 

Ill  C.  Held  that  an  act  of  Congress  granting  a  railroad  company  a 
right  of  way  through  ''the  public  lands"  of  the  United  States,  did  not 
authorize  it  to  enter  and  construct  a  track  upon  the  soil  of  a  military 
reservation,  the  same  being  no  part  of  the  "public  lands" ;  ^  and  that 
such  entry  was  therefore  a  trespass.  R.  39,  1^6,  Aug.,  1877.  Simi- 
larly held  where  the  acts  granted  rights  of  way  through  the  Indian 
Territory  and  Indian  reservations,  lands  and  allotments.  C.  684O, 
Sept.,  1899;  7672,  Feb.,  1900. 

Ill  D.  Land  which  has  been  set  apart  as  a  portion  of  an  Indian 
reservation  under  a  treaty  can  not  be  occupied  as  a  military  reserve;  ^ 
nor  can  even  a  military  post  be  maintained  thereon,  in  derogation  of 
the  terms  of  the  treaty  or  against  the  consent  of  the  Interior  Depart- 
ment.    R.  38,  179,  July,  1876;  C.  3342,  July  9,  1897. 

Ill  E.  In  locating  Fort  Missoula,  Mont.,  an  error  of  survey  was 
made  by  which  the  post  became  established  upon  a  section  which  had 
been  granted  to  the  State  by  the  enabling  act  as  school  land,  instead 
of  upon  the  contiguous  section  which  had  been  reserved  for  military 
purposes.  Recommended,  as  the  preferable  mode  of  rectifying  the 
error,  that  legislation  of  Congress  be  obtained  granting  to  the  State 
for  school  land  the  section  omitted  to  be  occupied,  and,  upon  its 
acceptance  by  the  State,  that  the  legislature  then  cede  to  the  United 
States  exclusive  jurisdiction  over  the  section  actually  occupied  by  the 
post.    P.  36,  402,  Nov.,  1889;  44,  299,  Dec,  1890. 

Ill  F  1.  The  President's  power  in  the  matter  of  military  reser- 
vations is  limited  to  the  settmg  apart  and  declaring  of  the  reserva- 
tion; and,  for  the  purpose  of  adding  to,  and  modifying  the  boundaries 
of,  the  original  reserved  tract,  a  reservation  may  be  redeclared  by 
the  Executive.  P.  39,  132,  Feb.,  1890;  50,  108,  Oct.,  1891.  But  the 
President  can  not  unreserve  duly  reserved  lands,  either  by  revoking 
the  order  of  reservation  or  otherwise.^  P.  60,  108,  supra;  C.  16691, 
Sept.  10, 1902, 

1  Wilcox  V.  Jackson,  13  Peters,  499,  513;  5  Op.  Atty.  Gen.  578;  6  id.,  670;  7  id.,  574. 
See,  also,  Scott  v.  Carew,  196  U.  S.,  100;  and  38  Land  Dec,  496. 

2  By  Art.  VI,  par.  2,  of  the  Constitution  "all  treaties  made  *  *  *  under  the 
authority  of  the  united  States"  are  declared  to  be  "the  supreme  law  of  the  land"; 
and  Indian  reservations  "  have  generally  been  made  through  the  exercise  of  the  treaty 
making  power,  and  the  fulfillment  of  treaty  obligations."  14  Op.  Atty.  Gen.,  182. 
That  land  can  not  be  reserved  or  occupied  for  military  purposes  to  the  prejudice  of  a 
title  previously  vested  in  an  individual  or  a  corporation,  see,  further,  9  id.,  339;  13 
id.,  469. 

3  See  10  Op.  Atty.  Gen.,  363,  366;  16  id.,  123.  See  Public  Property,  II  A  1,  foot- 
note. 


PUBLIC  PROPERTY  III  F  2.  925 

III  F  2.  Where  conflicting  claims,  not  clearly  groundless,  were 
made  by  several  persons  to  the  title  to  a  portion  of  a  military  reser- 
vation, advised  that  the  Secretary  do  not  attempt  to  pass  upon  the 
questions  involved,  but  refer  the  parties  to  the  courts  for  their  legal 
remedies.     R.  SO,  72,  Feb.,  1870, 

III  F  3.  Lands  once  duly  reserved  for  a  public  purpose  become 
separated  from  the  mass  of  public  lands,  and  the  President,  in  the 
absence  of  authority  from  Congress,  is  not  empowered  to  restore 
them  to  their  original  status.  So,  lieldj  that  a  proclamation  of  the 
President,  issued  under  an  act  of  Congress  opening  to  settlement 
lands  in  Oklahoma  Territory,  could  not  embrace  or  affect  land 
previously  duly  reserved  as  a  military  timber  reservation  for  the 
use  of  the  post  of  Fort  Reno.*  P.  21,  327,  Apr.,  1889.  Also  held 
that  under  the  act  of  July  5,  1884  (23  Stat.  103),  he  may  place  lands 
which  have  become  useless  for  military  purposes  under  the  control 
of  the  Secretary  of  the  Interior  for  disposition  and  sale  as  therein 
authorized.2     P.  j^8,  10,  June,  1891;  C.  1839,  Nov.,  1895. 

Wliere  it  was  proposed  to  turn  over  to  the  Interior  Department, 
under  the  act  of  July  5,  1884  (23  Stat.  103),  a  military  reservation 
as  "useless  for  military  purposes,"  but  subject  to  the  provisions  of 
a  contract  permitting  a  contractor  to  take  therefrom  2,000  cords 
of  wood,  for  a  military  post,  advised  that  the  transfer  be  deferred 
until  the  contract  was  performed,  the  reservation  not  being  ''useless 
for  mihtary  purposes,  during  the  existence  of  the  contract,  and 
furthermore  such  contract  might  interfere  with  the  sale  of  the  land 
by  the  Interior  Department.     C.  54,  July,  1894;  20531,  Oct.  15,  1906. 

Ill  F  4.  The  power  of  the  President,  under  the  provision  of  the 
act  of  March  3,  1893  (27  Stat.  593),  to  ''withhold  froni  sale,  and  to 
grant  for  public  use  to  municipal  corporations  in  which  the  same 
IS  situated,  all  or  any  portion  of  any  abandoned  military  reservation 
not  exceeding  twenty  acres  in  one  place,"  extends  only  to  such 
abandoned  military  reservations  or  parts  of  abandoned  military 
reservations  as  have  been  turned  over  by  the  Secretary  of  War  to 
the  Secretary  of  the  Interior  under  the  act  of  July  5,  1884.  P.  58, 
471,  Apr.,  1893. 

Ill  F  5.  Held,  with  reference  to  the  proposed  sale  of  Columbus 
Barracks,  Ohio,  under  the  act  of  June  30,  1902  (32  Stat.  515),  as 
amended  by  the  act  of  April  28,  1904,  that  as  section  3618  R.  S.,  as 
amended  by  the  act  of  June  8,  1896  (29  Stat.  268),  regulating  the 
disposition  of  the  proceeds  of  sales  of  ''old  material,  condemned 
stores,  suppUes,  or  other  puhlic  property  of  any  Mnd,"  requires  the 
"net  proceeds"  only  to  be  deposited  m  the  Treasury,  any  proper 
expense  connected  with  the  appraisement  and  sale  of  the  military 
reservation  would  be  defrayed  out  of  the  sum  realized  from  the  sale 

'  See  14  Land  Dec,  233. 

2  That  lands  turned  over  under  the  act  of  July  5,  1884,  can  not  be  disposed  of  under 
the  general  law  regarding  the  disposition  of  public  lands,  and  that  the  President 
can  not  restore  them  to  entry  and  settlement,  see  5  Land  Dec,  632;  6  id.,  19;  14  id., 
210;  27  id.,  82;  30  id.,  301,  That  a  reservation  acquired  by  purchase,  in  a  State  where 
there  are  no  public  lands,  if  abandoned  should  be  disposed  of  under  the  act  of  July 
5,  1884,  see  3  Land  Dec,  577.  Under  the  practice,  an  order  placing  lands  under 
the  control  of  the  Secretary  of  the  Interior,  under  the  act  of  July  5,  1884,  may  be 
revoked  and  the  lands  again  withdrawn  for  military  purposes.  Such  action  waa 
taken  with  respect  to  the  military  reservations  of  Fort  Keogh,  Mont.;  Fort  Town- 
send,  Wash.;  Fort  Walla  Walla,  Wash.,  etc.  As  to  reservation  of  lands  turned  over 
under  act  of  July  5, 1884  for  purposes  of  a  National  Forest,  see  36  Land  Dec,  342. 


926  PUBLIC   PROPERTY  III   F  6. 

of  the  reservation.  Cards  14693,  May  22,  1903;  16394,  May  31, 
1904.  Similarly  Jield,  with  reference  to  the  disposition  of  a  portion 
of  the  Fort  Gaines  Military  Reservation,  Ala.^  C.  22573,  May 
IS,  1911. 

Ill  F  6.  Held  that,  the  land  laws  not  being  applicable  in  the 
Philippine  Islands,  if  military  reservations  there  are  abandoned  the 
land  reverts  to  the  control  of  the  Philippines  Commission.  C. 
25558,  Oct.  4,  1910. 

Ill  G  1.  The  ownership  and  jurisdiction  of  the  soil  between  high 
and  low  water  mark  on  navigable  waters  within  or  bordering  upon  a 
State  are  vested  in  the  State,  not  in  the  United  States.  Tidelands 
belong  to  the  State  only;  the  United  States  has  no  interest  in  the 
soil  below  high-water  mark  other  than  such  as  may  have  been  ceded 
by  the  State.2  R.  ^7,  596,  Feb.,  1886;  P.  15,  452,  Mar.,  1887.^  So, 
where  a  military  reservation  within  a  State  fronted  upon  navigable 
waters  of  the  United  States,  at  the  mouth  of  the  Columbia  River, 
lield  that  the  military  authorities  could  not,  by  the  removal  of  fishing 
nets  or  fish  traps  placed  below  high-water  mark  or  otherwise,  legally 
prevent  or  interfere  with  the  exercise  of  the  right  of  fishery  as  to 
scale  or  shell  fish  on  the  tidelands;  such  right  being  common  to  all 
citizens  except  in  so  far  as  it  may  be  abridged  by  the  State. ^  R.  52, 
137,  Mar.,  1887. 

Ill  G  2.  In  the  case  of  a  Territory,  the  sovereign  right  to  the  whole 
soil  is  exclusively  in  the  United  States.  Thus  the  reservation  of  an 
island  in  the  tidewaters  of  a  Territory  includes  not  only  its  soil  down 
to  high-water  mark  but  all  its  tidelands  also.  R.  Jf.7,  596,  Feb.,  1886. 
But  in  a  Territory,  in  the  absence  of  special  regulation  of  the  subject 
by  Congress,  no  executive  authority  can  lawfully  restrict  the  common- 
law  right  of  piscary  of  the  inhabitants  (including  the  taking  of  shell- 
fish) in  the  tidewaters  of  the  Territory.  So,  the  commander  of  a 
reserved  military  post  fronting  upon  navigable  water  of  a  Territory  is 
not  empowered  to  remove  from  such  tidewaters  the  seines  or  traps  of 
fishermen;  though  if  the  public  interests  require  it  he  may  forbid  or 
restrict  the  use  of  the  shore  above  high-water  mark  for  the  hauling  of 
seines  or  landing  of  fish.     P.  15,  452,  Mar.,  1887.  ^ 

III  H  1.  Squatters  and  other  trespassers  and  intruders  may  and 
should  be  expelled,  by  military  force  if  necessary,  from  a  military 
reservation.^  R.  49,  208,  July,  1885;  50,  314,  May,  1886.  But  such 
persons  when  they  have  been  suffered  to  own  and  occupy  buildings 
oh  a  reservation  should  be  allowed  reasonable  time  to  remove  them. 
If  not  removed  after  due  notice  the  same  should  be  removed  by  the 
military.  Material  abandoned  on  a  reservation  by  a  trespasser  on 
vacating  may  lawfully  be  utilized  by  the  commander  for  completing 
roads,  walks,  etc.  R.  50,  273,  378,  May  and  June,  1886.  Squatters 
on  United  States  reservations  (timbered)  may  also  be  forced  there- 
from by  criminal  proceedings  had  under  section  5388,  R.  S.,  or  ejected 

1  See  pars.  1251  and  1253,  Dig.  2d  Comp.  Dec,  vol.  3. 

2  Pollard's  Lessees  v.  Hagan,  3  Howard,  212;  Goodtitle  v.  Kibbe,  9  id.,  477;  Doe  v.  , 
Beebe,  13  id.,  25;  6  Opins.  At.  Gen.,  172. 

^  Washburn,  Easements  and  Servitudes,  410;  Martin  v.  Waddell,  16  Peters,  367; 
Smith  V.  Maryland,  18  Howard,  71;  McCready  v.  Virginia,  94  U.  S.,  391;  Lay  i'.  King, 
5  Day,  72;  Arnold  v.  Mundy,  1  Halst.,  1;  Parker  v.  Cutler,  etc.,  Co.,  20  Maine,  353; 
Moulton  V.  Libbey,  37  id.,  472;  Weston  v.  Sampson,  8  Cush.,  347. 

4  See  G.  O.  62  of  1869. 


PUBLIC   PROPERTY   III   H   2.  927 

by  civil  action.  C.  138,  Sept.,  1894;  12941,  July  16,  1902;  16983, 
Oct  8,  1904. 

Ill  H  2.  Where  squatters  have  made  any  considerable  improve- 
ments upon  a  reservation,  and  their  value  has  been  duly  estimated — 
as  b^  a  board  constituted  b}^  the  department  commander  and  pre- 
sentmg  in  its  report  all  the  evidence  on  the  subject — an  award  by  the 
Secretary  of  War,  acquiesced  in  by  the  claimant,  may  be  sued  upon 
in  the  Court  of  Claims,  which  (in  the  absence  of  evidence  of  fraud  or 
mistake)  will  accept  such  award  as  conclusive.^  P.  17,  265,  June, 
1887;  C.  12941  y  July  16, 1902;  16983,  Oct.  8, 1904;  24196,  Bee,  1908. 

Ill  II  3.  The  cutting  of  timber  on  a  military  reservation  is  an 
oU'ense  against  the  United  States,  made  punishable  by  section  5388, 
R.  S.  (amended  by  the  act  of  June  4,  1888),  and  by  the  act  of  March  3, 
1875,  chapter  151.  So,  grass  cut  on  a  reservation  and  removed  as  hay 
would  be  personal  property  of  which  the  asportation  would  be  larceny 
under  the  act  of  March  3, 1875,  chapter  144.  And  persons  coming  upon 
a  military  reservation  for  the  purpose  of  cutting  wood  or  grass  or  to 
plow  up  the  soil,  or  commit  other  trespass,  maj^  be  removed  as 
mtruders,  and  the  post  commander  should  not  hesitate  to  resort  to 
military  force  if  necessary  for  the  purpose.  And  he  may  of  course 
prevent  such  trespassers  from  carrying  off  with  them  any  property  of 
the  United  States.  P.  64,  270,  303,  Mar.  and  Apr.,  1894;  C.  3315, 
June,  1897;  16983,  Oct  8,  1904;  20531,  Oct  15,  1906;  20544,  Oct  18 
and  Nov.  20,  1906;  20818,  Dec.  22,  1906. 

Ill  11  4.  The  general  principle  of  the  authority  to  remove  tres- 
passer, their  structures  and  property,  from  land  of  the  United  States 
embraced  in  a  mihtary  reservation,  held  specially  applicable  where  the 
intrusion  was  for  an  injurious  purpose,  as  where  the  object  was  to  lay 
a  sewer  intended  to  discharge  into  a  main  sewer  constructed  by  the 
Ignited  States  upon  and  for  the  use  of  its  own  premises.  In  this 
instance,  as  the  trespass  was  committed  by  the  authorities  of  a  munici- 
pality, advised  that  reasonable  notice  be  given  them  to  remove  their 
property  before  resorting  to  military  force  for  the  purpose,  and  mean- 
time that  precautions  be  taken  to  prevent  a  connection  between  the 
proposed  sewer  and  the  sewers  under  the  control  of  the  United  States. 
P.  65,  6,  May,  1894. 

III  H  5.  Held  that  a  butcher  who  was  under  contract  with  the 
United  States  to  supply  beef  to  the  post  of  Fort  Brown,  Tex.,  should 
not  be  permitted  to  sell  beef  on  the  reservation  to  citizens  of  the 
town,  to  the  prejudice  of  the  butchers  doing  business  there.  Such  a 
party  is  not  a  post  trader,  and  Congress,  in  providing  specifically  for 
post  traders,  would  seem  to  have  considered  legislation  necessary 
to  authorize  an  individual  to  engage  in  trade  or  traffic  at  a  military 
post.     P.  30,  475,  Mar.,  1889. 

IV  A  1  a.  Sections  4870-4872,  R.  S.,  constitute  the  only  existing 
general  law  authorizing  the  purchase  or  acquisition  of  land  as  ceme 
tery  grounds  for  the  interment  of  soldiers.  The  general  provision  on 
the  subject,  of  section  18  of  the  act  of  July  17,  1862,  c.  200,  has  ceased 
to  be  in  force  under  the  operation  of  section  5596  of  the  repealing 
provisions  of  the  Revised  Statutes.  P.  32,^  261,  May,  1889,  And 
where  is  was  proposed  to  donate  land  for  a  right  of  way  to  a  national 
cemetery  on  condition  that  the  United  States  build  the  road  and  a 

iMaddox  v.  U.  S.,  20  Ct.  Cls.,  193,  199. 


928  PUBLIC   PROPERTY  IV  A  1   a  (l). 

substantial  wire  fence  with  gates,  etc.,  Jield  that  the  authority  given 
by  the  sections  to  purchase  the  property  includes  the  authority  to 
accept  title  by  donation;  that  the  authority  to  acquire  the  site  could 
be  construed  as  including  the  authority  to  acquire  the  right  of  way 
thereto;  but  that  the  condition  of  the  proposed  donation  would 
preclude  its  acceptance.     C.  1221^2,  Mar,  25,  1902. 

IV  A  1  a  (1).  To  authorize  the  acquisition,  by  the  exercise  of  the 
right  of  eminent  domain,  of  private  land  for  a  national  cemetery 
under  sections  4870  and  4871,  R.  S.,  there  must  be  (1)  an  existing 
appropriation  (in  conformity  with  the  rule  of  section  3736,  R.  S.) 
authorizing  the  acquisition;  and  (2)  the  private  owner  must  be 
unwilling  to  give  title  or  the  Secretary  of  War  be  unable  to  agree 
with  him  as  to  price.     P.  32,  277,  May,  1889. 

IV  A  1  a  (2).  The  appraisement  of  land  for  a  national  cemetery, 
as  duly  made  by^  a  United  States  court  under  sections  4871  and  4872, 
R.  S.,  is  conclusive  upon  the  Secretary  of  War,  who  must  thereupon 
pay  the  appraised  value  as  indicated  in  the  latter  section.  If  indeed 
there  has  hQQn  fraud  in  the  valuation  by  which  the  court  has  been 
deceived  in  its  decree,  or  its  original  appraisement  is  deemed  excessive, 
it  may  properly  be  moved  for  a  new  appraisement  on  the  part  of  the 
United  States.^     R.  26,  617,  June,  1868. 

ly  A  1  b.  The  Government  is  under  no  legal  obhgation  to  provide 
burial  places  for  destitute  soldiers  at  a  volunteer  home.  Section 
4878,  K.  S.,  in  providing  that  the  soldiers,  etc.,  there  designated, 
"may  be  buried  in  any  national  cemetery  free  of  cost,''  does  not 
require  the  establishment  of  a  national  cemetery  specially  for  the 
purpose  of  interments  at  such  a  home.     P.  32,  277,  May,  1889. 

IV  A  2  a.  The  sundry  civil  act  of  March  3,  1899  (30  Stat.  1108), 
contains  the  provision  "that  no  railroad  shall  be  permitted  upon  the 
right  of  way  which  may  have  been  acquired  by  the  United^  States 
to  a  national  cemetery  or  to  encroach  upon  any  roads  or  walks 
constructed  thereon  and  maintained  by  the  United  States."  Held 
that  this  provision  was  intended  to  prevent  the  occupation  of  and 
encroachment  upon  the  rights  of  way  or  roads  named  therein,  but 
did  not  forbid  the  granting  of  permission  to  lay  a  railroad  track 
across  a  Government  roadway  leading  to  a  national  cemetery.  C. 
7466,  Dec.,  1899. 

ly  A  2  b.  With  reference  to  the  authority  to  regulate  the  speed  of 
vehicles  on  the  roadway  of  the  national  cemetery^  at  Vicksburg,  Miss., 
lield  that  in  the  absence  of  any  cession  of  jurisdiction  over  the  road- 
way it  would  be  under  the  police  jurisdiction  of  the  local  authorities 
as  to  offenses  committed  thereon,  but  that  there  was  no  objection  to 
posting  notice  that  violations  of  the  local  laws  regarding  speed  limits 
would  be  punished  as  prescribed  therein,  and  to  bringing  to  the  at- 
tention of  the  proper  local  authorities  any  violations  of  such  notice. 
0.26691,  Sept.  2,  1910. 

IV  A  2  c.  On  the  question  whether  the  restriction  in  the  appro- 
priation for  roadways  to  national  cemeteries:  "That  no  part  of  this 
sum  shall  be  used  for  repairing  any  roadway  within  the  corporate  limits 
of  any  State,  town,  or  village,"  should  be  considered  as  an  abandon- 
ment of  a  portion  of  the  Government  roadway  to  the  Salisbury  (N.  C.) 
National  Cemetery,  the  title  in  fee  being  in  the  United  States,  held 

1  See  14  Op.  Atty.  Gen.,  27. 


PUBLIC   PROPERTY   IV  A  3   a.  929 

that  the  law  regarding  the  divesting  of  title  by  abandonment  applies 
where  the  title  is  of  an  easement  only,  but  has  no  apphcation  to  a  fee 
simple  title.     C,  26103,  Jan.  20,  1910, 

IV  A  3  a.  Superintendents  of  national  cemeteries  are  no  part  of  the 
Army,  but  civilians, being  required  indeed  by  section  4874,  K.S.,  to  be 
selected  from  persons  who  have  been  honorably  discharged  from  the 
miUtary  service.  They  are  therefore,  of  course,  not  subject  to  the 
Articles  of  War  or  to  trial  by  court-martial;  ^  and,  for  any  serious  mis- 
conduct on  the  part  of  a  superintendent,  a  removal  from  office  would 
be  the  only  adequate  remedy.  R.  35,  34,  Oct.,  1873;  38,  381,  Nov., 
1876;  577,  Apr.,  1877. 

IV  A  3  b.  By  section  4881,  R.  S.,  the  superintendent  of  a  national 
cemetery  is  authorized  to  arrest  persons  who  injure,  etc.,  gravestones, 
trees,  shirubs,  etc.,  within  the  cemetery.  Held  that  he  could  not,  under 
this  authority,  legally  arrest  a  person  who  fired  a  ^un  into  or  across 
the  cemetery  without  causing  any  such  injury  as  is  specified  in  the 
statute,  but,  for  the  arrest  and  punishment  of  such  a  trespasser,  must 
have  recourse  to  the  local  authorities.    R.  32,  425,  Mar.y  1872. 

IV  A  3  c.  Held  that  the  Secretary  of  War  might  legally  make  rules 
for  the  use  of  roads  within  national  cemeteries  and  for  the  rates  of 
speed  thereon,  and  that  any  regulations  so  promulgated  might  be 
executed  by  the  superintendent  under  the  authority  of  section  4873 
R.  S.     C,  26691,  May  10,  1911.  - 

rV  A  4.  Under  section  4878  R.  S.  and  the  act  of  March  3,  1897  (29 
Stat.  625),  the  following  classes  of  persons  are  entitled  to  interment 
in  a  national  cemetery : 

(1 )  Ofiicers  and  enhsted  men  who  served  in  the  Regular  or  Volunteer 
Ai'my  or  Navy  during  the  Civil  War. 

(2)  Ofiicers  and  enlisted  men  who  served  in  the  Regular  or  Volujiteer 
Army  or  Navy  during  the  War  with  Spain. 

(3)  Army  nurses  who  have  been  honorably  discharged  from  such 
employment  without  regard  to  the  time  or  place  of  service. 

(4)  Officers  and  enhsted  men  of  the  Army  and  Navy  who  died 
while  in  the  mihtary  service. 

Held  where  certain  lots  were  assigned  for  the  burial  of  officers, 
particularly  at  Arfington,  Va.,  that  under  the  precedents  there  was 
no  objection  to  permitting  the  interment  of  the  remains  of  the  wife  or 
minor  children  of  the  ofiicer  to  whom  the  lot  had  been  assigned.  C. 
16508,  June  22,  1904. 

IV  A  4  a.  Under  the  act  of  March  3,  1897,  providing  for  the  inter- 
ment of  deceased  Army  nurses  honorably  discharged  as  such,  held 
that  the  services  of  the  contract  surgeon  charged  with  the  duty  of 
superintending  the  organization  of  Army  nurses  during  the  Spanish 
War — a  duty  substantiaUy  that  of  superintendent  of  the  Army  Nurse 
Corps  (a  position  subsequently  made  a  part  of  the  Army  Nurse  Corps 
by  sec.  19  of  the  act  of  Feb.  2,  1901) — while  not  within  a  literal 
description  of  the  statute,  were  of  such  a  character  as  would  justify 
the  Secretary  of  War  in  placing  such  a  liberal  construction  upon  the 
law  as  would  permit  of  the  assignment  of  a  lot  for  her  future  inter- 
ment.    C.  29060,  Oct.  5,  1911. 

^  See  the  subsequent  opinion,  concurring  in  this  view,  of  the  Attorney  General,  in 
16  Op.  13. 

31106°— 12 59 


930  PUBLIC   PEOPERTY  IV  A  4  b. 

IV  A  4  b.  Under  the  appropriation  for  the  burial  of  ex-Union 
soldiers,  sailors,  and  marines  of  the  Civil  War  and  of  the  War  with 
Spain  '  Vho  die  in  the  District  of  Columbia,  or  in  the  immediate 
vicinity  thereof,"  held  that  the  words  ''immediate  vicinity"  should  be 
interpreted  in  a  reasonable  sense,  and  as  including  the  towns,  etc., 
whicn  lie  near  the  District  boundaries,  and  whose  inhibitants  are 
employed  in  the  District  or  regard  it  as  the  center  of  their  business 
relations;  and  that  it  would  be  proper  to  include  all  those  towns,  etc., 
which  are  within  a  distance  of  10  miles  of  the  District  line.^  C.  16396, 
June  6,  1904. 

IV  A  4  c.  On  the  question  of  whether  officers  and  enlisted  men  of 
the  Revenue  Marine  Service  are  entitled  to  interment  in  the  several 
national  cemeteries,  held  that  under  ordinary  conditions  the  Revenue 
Cutter  Service  is  not  a  part  of  the  constitutional  mihtary  or  naval 
service  of  the  United  States,  but  is  a  part  of  the  civil  establishment, 
and  as  such  its  members  are  not  entitled  to  interment  in  a  national 
cemetery.  C.  19774,  Oct.  26  and  Nov.  25, 1910.  Held,  however,  that 
when  cooperating  with  the  Navy,  under  sections  1492  and  2757,  R.  S., 
they  are  to  be  considered,  during  such  service,  a  part  of  the  Navy, 
and.  as  such  entitled  to  be  buried  in  a  national  cemetery. ^  C.  19774, 
May  24,  1906;  Nov.  25,  1910. 

IV  B.  The  act  of  March  9,  1906  (34  Stat.  56),  to  provide  for  the 
appropriate  marking  of  the  graves  ef  the  soldiers  and  sailors  of  the 
Confederate  Army  and  Navy  who  died  in  Northern  prisons,  etc., 
authorized  the  Secretary  of  War  'Ho  acquire  possession  or  control" 
of  such  burial  places,  and  empowered  him  "to  cause  to  be  erected 
over  said  graves  white  marble  headstones,  *  *  *  to  build  proper 
fencing  for  the  preservation  of  said  burial  grounds,  and  to  care  for 
said  burial  grounds  in  all  proper  respects  not  herein  specifically 
mentioned."  Held,  the  Secretary  had  authority  to  erect  headstones 
in  the  Johnsons  Island  Confederate  cemetery*  and  to  cause  the  same 
to  be  inclosed  by  a  suitable  fence,  without  acquiring  the  ownership  of 
the  land  constituting  the  cemetery.  G.  19834,  Apr.,  1907,  and  Mar., 
1908.  Held,  further,  that  the  appropriation  under  above  act  covered 
all  necessary  and  proper  expenses  of  the  commissioner  in  immediate 
charge  of  the  work  and  authorized  him  and  a  stenographer  to  visit 
the  places  falling  within  the  scope  of  the  act.  C.  19834,  June,  1906. 
Held,  further,  that  above  act  authorizes  the  Secretary  to  empower  the 
commissioner  to  employ  an  architect  to  design  the  fencing  and  attend 
to  its  construction,  and  pay  him  the  usual  compensation.  C.  19834, 
July,  1907.  Held,  further,  although  it  was  contemplated  by  the  act 
in  question  that  a  headstone  should  be  erected  over  the  grave  of  each 
soldier  and  sailor,  yet  if  it  was  now  impossible  to  identifv  the  graves 
of  individuals,  that  in  view  of  the  purpose  and  nature  of  the  act  the 
most  complete  execution  possible  should  be  given  to  the  statute,  and 
that  a  suitable  monument  to  the  unidentified  dead  might  be  erected 
on  the  location  of  their  burial.     C.  19834,  Nov.,  1908. 

IV  B  1.  On  the  question  of  whether  the  Secretary  of  War  might 
authorize  the  burial,  in  the  Confederate  section  of  the  Arlington 
National  Cemetery  (which  section  was  set  apart  for  the  interment, 
under  the  act  of  June  6,  1900,  31  Stat.  630,  of  the  remains  of  Con- 

1  See  Langley  v.  Bimsted  (63  N.  H.,  246);  Timmermaii  v.  Dover  (52  Mich.,  56). 

2  See  19  Op.  Atty.  Gen.,  505;  27  id.,  8. 


PUBLIC   PROPERTY  V.  931 

federate  soldiers  buried  in  certain  other  places),  of  Confederate 
veterans  dying  in  the  District  of  Columbia  or  vicinity,  held  that  while 
the  plot  might  be  rearranged  to  receive  the  additional  remains,  the 
purposes  for  which  national  cemeteries  can  be  used  have  been  pre- 
scribed by  statute;  that  where  Confederate  dead  have  been  interred 
there  has  been  express  authority  therefor;  and  that  the  Secretary  of 
War  could  not  legally  permit  any  such  burials  in  the  absence  of  a 
statute  authorizing  the  same.    C.  28774,  July  29,  1911. 

V.  Jurisdiction  over  territory  in  a  State  may  be  acquired  by  the 
I  nited  States,  under  the  seventeenth  clause  of  section  8  of  article  1 
of  the  Constitution,  by  the  purchase  of  such  territory,  with  the  con- 
sent of  the  State,  ''for  the  erection  of  forts,  magazines,  arsenals,  dock- 
yards, and  other  needful  buildings."  The  Constitution  gives  Congress 
t  he  power  of  exercising  exclusive  legislation  over  such  place,  and  this 
is  held  to  mean  exclusive  jurisdiction.  The  State's  consent  to  the 
])urchase  for  any  one  of  these  constitutional  purposes  invests  the 
Tnited  States  with  exclusive  jurisdiction,  and  the  State  can  not,  even 
by  the  express  language  of  its  legislation,  reserve  to  itself  any  part  of 
this  jurisaiction.  (The  reservation  of  the  right  of  serving  process  for 
causes  of  action  arising  outside  such  territory  is  not  held  to  be  an 
actual  reservation  of  a  part  of  the  exclusive  jurisdiction  intended  to 
be  vested  in  the  United  States.)  But  it  would  seem  that  this  is  only 
true  when  the  purchase  is  for  one  of  the  constitutional  purposes.  By 
correct  construction,  ''other  needful  buildings''  would  mean  build- 
ings of  the  same  character  as  those  specified — buildings  intended  for 
military  or  defensive  purposes.  A  more  comprehensive  meaning  has, 
indeed,  been  sometimes  given  to  the  expression,  but  no  justification 
for  such  construction  is  found.  In  Pinckney's  draft  of  a  constitution 
there  was  this  clause:  ''To  provide  such  dockyards  and  arsenals,  and 
erect  such  fortifications,  as  may  he  necessary  for  the  United  States, 
and  to  exercise  exclusive  jurisdiction  therein."  (This  draft  was  sub- 
mitted May  29,  1787.) 

There  was  no  corresponding  provision  in  the  Constitution  reported 
by  the  committee  of  detail  (Aug.  6),  but  the  committee  of  11,  by 
report  of  September  5,  recommended  the  adoption  of  the  clause  as  it 
now  reads,  except  that  it  did  not  have  the  words  "by  the  consent  of 
the  legislature  of  the  State."  In  the  debate  on  the  proposition,  "Mr. 
Gerry  contended  that  this  power  might  be  made  use  of  to  enslave  any 
particular  State  by  buying  up  its  territory,  and  that  the  strongTiolas 
proposed  would  be  a  means  of  awing  the  State  into  an  undue  obedience 
to  the  General  Government.  Mr.  King  himself  thought  the  provision 
unnecessary,  the  power  being  already  involved;  but  would  move  to 
insert,  after  the  word  'purchased,'  the  words,  'by  the  consent  of  the 
legislature  of  the  State.'  This  would  certainly  make  the  power  safe." 
(5  Elliot's  Debates,  511.) 

And  in  the  Federalist  (No.  43)  it  is  remarked:  "Nor  would  it  be 
proper  for  the  places  on  which  the  security  of  the  entire  Union  may 
depend  to  be  in  any  degree  dependent  on  a  particular  member  of  it. 

So  Story  remarks  (sec.  1224): 

"The  other  part  of  the  power,  giving  exclusive  legislation  over 
places  ceded  for  the  erection  of  forts,  magazines,  etc.,  seems  still 
more  necessary  for  the  public  convenience  and  safety.  The  public 
money  expended  on  such  places,  and  the  public  property  deposited 


932  PUBLIC   PROPERTY  V. 

in  them,  and  the  nature  of  the  miHtary  duties  which  may  be  required 
there,  all  demand  that  they  should  be  exempted  from  State  authority. 
In  truth,  it  would  be  wholly  improper  that  places  on  which  the  secu- 
rity of  the  entire  Union  may  depend  should  be  subjected  to  the  control 
of  any  member  of  it.  The  power,  indeed,  is  wholly  unexceptionable, 
since  it  can  only  be  exercised  at  the  will  of  the  State;  and  therefore  is 
is  placed  beyond  all  reasonable  scruple.  Yet,  it  did  not  escape  without 
the  scrutinizing  jealousy  of  the  opponents  of  the  Constitution,  and 
was  denounced  as  dangerous  to  State  sovereignty." 

And,  as  observed  by  Judge  Seaman  (in  re  Itelly,  71  Fed.  Rep., 
545,  549): 

^'The  rule  thus  stated,  whereby  legislative  consent  operates  as  a 
complete  cession,  is  apphcable  only  to  objects  which  are  specified  in 
the  above  provision,  and  can  not  be  held  to  so  operate,  ipso  facto,  for 
objects  not  expressly  included  therein.  Whether  it  rests  in  the  dis- 
cretion of  Congress  to  extend  the  provision  to  objects  not  specifically 
enumerated,  although  for  national  purposes,  upon  declaration  as 
'needful  buildings,'  and  thereby  secure  exclusive  jurisdiction,  is  an 
inquiry  not  presented  by  this  legislation  (see  114  U.  S.,  541);  and  I 
think  it  can  not  be  assumed  by  way  of  argument  that  such  power  is 
beyond  question." 

In  New  Orleans  v.  U.  S.,  10  Pet.,  662,  737,  the  opinion  of  the 
Supreme  Court  is  expressed  by  Mr.  Justice  McLean,  without  dissent, 
as  follows : 

''Special  provision  is  made  in  the  Constitution  for  the  cession  of 
jurisdiction  from  the  States  over  places  where  the  Federal  Govern- 
ment shall  establish  forts  or  other  military  works.  And  it  is  only  in 
these  places,  or  in  the  Territories  of  the  United  States,  where  it  can 
exercise  a  general  jurisdiction." 

And,  in  U.  S.  v.  Bevans,  3  Wheat.,  336,  390,  the  claim  was  urged 
that  the  words  "other  place"  would  include  a  ship  of  war  of  the 
United  States  lying  at  anchor  in  Boston  Harbor,  and  bring  it  within 
the  statute  defining  murder  committed  "within  any  fort,  arsenal, 
dockyard,  magazine,  or  in  any  other  place  or  district  of  country  under 
the  sole  jurisdiction  of  the  United  States;"  but  it  was  stated  by  the 
court,  through  Chief  Justice  Marshall,  that  "the  construction  seems 
irresistible  that  by  the  words  'other  place'  was  intended  another 
place  of  a  similar  character  with  those  previously  enumerated;"  that 
"the  context  shows  the  mind  of  the  le"gislature  to  have  been  fixed  on 
territorial  objects  of  a  similar  character."  (See  also  The  Federalist, 
No.  43,  by  Madison.) 

Section  355,  R.  S.,  prescribes  that  no  public  money  shall  be  ex- 
pended upon  any  site  or  land  purchased  by  the  United  States  for  the 
purposes  of  erecting  thereon  any  armory,  arsenal,  fort,  fortification, 
navy  yard,  customhouse,  lighthouse,  or  other  building,  of  any  kind 
whatever,  until  the     *     *     *     consent  of  the  legislature  of  the  State  m 
in  which  the  land  or  site  may  be,  to  such  purchase,  has  been  given.  I 
This  section  is  in  part  based  on  the  clause  of  the  Constitution  referred  ^ 
to,  and  in  part  not.     The  consent  of  the  State  to  a  purchase,  given  in 
order  to  satisfy  the  requirement  of  this  section,  would  invest  the 
United  States  with  exclusive  jurisdiction,  if  the  purchase  be  for  one  of 
the  constitutional  purposes;  but  the  section  provides  for  other  pur- 
poses also,  and  as  to  these  it  would  seem  that  a  simple  consent  to  the 


PUBLIC   PROPEETY  V  A.  933 

purchase  (assuming  that  such  consent,  being  for  a  purpose  not  falling 
under  the  clause  of  the  Constitution,  amounts  to  a  cession  of  jurisdic- 
tion) would  only  carry  with  it  so  much  jurisdiction  as  would  be  neces- 
sary for  the  purpose  of  the  purchase.  Probablj)^  this  would  be  held  to 
be  concurrent  jurisdiction.  Taking  into  consideration  the  fact  that 
States  can  not,  under  any  circumstances,  interfere  with  the  instru- 
mentalities of  the  Government  of  the  United  States,  it  may,  indeed, 
be  questioned  whether,  even  under  this  view,  unnecessary  precautions 
have  not  been  taken  in  regard  to  the  acquisition  of  jurisdiction;  and, 
certainly,  it  can  not  be  presumed  that  a  State  intends  to  part  with 
more  of  its  sovereignty  than  is  necessary.  A  consent  to  the  purchase, 
under  section  355,  R.  S.,  if  the  purchase  be  for  other  than  one  of  the 

Eurposes  described  in  the  clause  of  the  Constitution,  may,  therefore, 
e  accompanied  with  any  limitations  not  interfering  with  an  instru- 
mentahty  of  the  Government  of  the  United  States. 

The  most  common  way  of  acquiring  jurisdiction,  however,  is  by  the 
State's  expressly  ceding  it  to  the  United  States.  In  such  case  the 
State  may  make  similar  limitations,  and  this  even  if  the  place  be  used 
by  the  United  States  for  one  of  the  purposes  mentioned  in  the  clause 
of  the  Constitution.  To  bring  the  case  under  the  clause  there  must  be 
a  purchase  with  consent.*    C.  1953,  Dec,  1895. 

V  A.  The  mere  fact  of  its  being  the  owner  of  land  situated  withm  a 
State  does  not  entitle  the  United  States  to  exercise  exclusive  jurisdic- 
tion over  the  same  or  of  offenses  committed  thereon,^  nor  does  the  fact 
that  the  land  has  been  duly  reserved  for  mihtary  purposes  confer  such 
authority.^  Where  the  United  States  is  the  proprietor  of  the  land  at 
the  time  of  the  admission  of  the  State,  it  may  obtain  such  exclusive 
jurisdiction,  by  expressly  reserving  the  same  to  itself  in  the  act  of 
admission.  Where  this  has  not  been  done,  or  where  the  land  has  been 
purchased  or  otherwise  acquired  by  the  United  States  subsequently  to 
the  admission  of  the  State,  exclusive  jurisdiction  over  the  same  can  be 
vested  in  the  United  States  only  by  an  act  of  cession  of  such  jurisdic- 
tion on  the  part  of  the  State,  or  by  the  State's  giving  its  consent  to  the 
* 'purchase"  by  the  United  States.  See  the  terms  of  the  provision  of 
clause  17,  section  8,  Article  I,  of  the  Constitution.*  A  mere  consent 
by  a  State,  through  its  legislature,  to  the  ' 'purchase"  by  the  United 
States  of  land  within  its  hmits  for  any  purpose  covered  by  the  clause 
of  the  Constitution  cited  is  as  operative  for  the  purpose  of  vesting 

1  See  Fort  Leavenworth  R.  R.  Co.  v.  Lowe,  114  U.  S.,  525,  539;  Chicago  &  Pacific 
Ry.  Co.  V.  McGlinn,  114  U.  S.,  542;  Benson  v.  U.  S.,  146  U.  S.,  325,  331;  In  re  Kelly, 
71  Fed.  Rep.,  545;  In  re  Ladd,  74  id.,  31. 

2  United  States  v.  Stahl,  1  Woolworth,  192,  and  McCahon,  206;  Ex  parte  Sloan,  4 
Sawyer,  330,  331,  332;  Clay  v.  State,  4  Kans.,  49.  Much  less  does  the  mere  fact  of  its 
being  the  occupant  of  the  land  give  it  this  authority — as  where  it  occupies  land  as  a 
camp.  United  States  v.  Tierney,  1  Bond,  571;  Divine  v.  Unaka  Nat.  Bank  (Tenn.), 
140  S.  W.,  747. 

^  See  the  first  three  cases  cited  in  last  note.  The  fact  that  the  person  against  whom 
the  offense  has  been  committed — as  the  person  killed  in  a  case  of  alleged  murder — 
is  an  employee  of  the  United  States,  adds  nothing  to  its  jurisdictional  authority.  Ex 
parte  Sloan,  supra. 

*  That  the  term  "exclusive  legislation,"  employed  in  the  Constitution,  is  equiva- 
lent to  exclusive  jurisdiction,  or  rather  that  exclusive  jurisdiction  is  a  necessary  inci- 
dent of  exclusive  legislation,  see  6  Op.  Atty.  Gen.,  577,  578;  United  States  v.  Cornell, 
2  Mason,  60;  Ex  parte  Sloan,  4  Sawyer,  330. 


934  PUBLIC   PROPERTY  V  D  1. 

the  exclusive  jurisdiction  as  is  an  express  cession  of  the  same.^     B,  42, 
6U,  524,  ^cir.,  1880;  J^S,  234,  Feb.,  1880. 

Held  that  notwithstanding  the  provision  in  section  4872,  R.  S 
that  the  jurisdiction  of  the  United  States  over  land  taken  for  a 
national  cemetery,  by  the  right  of  eminent  domain,  ''shall  be  exclu- 
sive," such  a  jurisdiction,  where  the  land  is  within  a  State,  can  not 
be  legally  vested  in  the  United  States,  except  by  the  cession  of  the 
State  legislature.  In  the  absence  of  such  cession  on  the  part  of  the 
State  sovereignty,  an  act  of  Congress  must  be  powerless  to  confer  such 
an  authority .2    R.  27,  661,  May,  1869.  ^ 

V  D  1 .  Held  that  there  was  no  occasion  for  a  statutory  provision 
ceding  back,  or  requiring  the  ceding  back,  of  jurisdiction,  by  the 
United  States  to  the  State,  when  a  military  reservation  was  aban- 
doned and  turned  over  to  the  Interior  Department  under  the  act  of 
July  5,  1884  (23  Stat.  103).  Such  provision  has  sometimes  appeared, 
as  in  the  act  of  Congress  of  March  3,  1819  (''authorizing  the  sale  of 
certain  mihtary  sites"),  as  also  in  some  of  the  State  acts  ceding 
jurisdiction,  in  which  the  grant  is  expressly  limited  to  the  period 
during  which  the  premises  may  be  held  for  public  uses  by  the  United 
States.  But  such  provisions  are  deemed  unnecessary,  the  jurisdic- 
tion ceasing  of  itself  with  the  use  and  occupation  of  the  land  for  the 
purposes  for  which  it  was  granted.  It  is  beUeved  to  be  clearly  inferable 
from  the  clause  on  the  subject  in  the  Constitution  (Art.  I,  sec.  8,  cl.  17) 
that  the  State  rehnquishes  its  jurisdiction  only  for  such  term  as  the 
particular  status  subsists  in  contemplation  of  which  it  was  ceded. ^ 
P.  43,  475,  Nov.,  1890;  C.  11668,  Jan.  29,  1902. 

V  D  1  a.  Held  that  the  act  of  Congress  granting  to  the  West  Shore 
R.  R.  Co.  a  right  of  way  across  a  part  of  the  military  reservation  at 
West  Point,  N.  Y.,  did  not  operate  to  oust,  as  to  such  way,  the  ex- 
clusive jurisdiction  over  the  reservation  previously  ceded  by  the  State 
to  the  United  States.  It  simply  imposed  upon  the  military  authori- 
ties the  duty  of  not  interfering  with  the  legitimate  use  of  its  right  by 
the  railroad  company.  P.  41,  457,  July,  1890;  G.  14323,  Mar.  27, 
1903. 

V  E  1  a.  A  cession  of  jurisdiction  by  a  State  to  the  United  States 
may  be  quahfied  or  conditional,  ana  concedes  only  so  much  as  is 
specifically  expressed.^  So  lield,  that  a  reservation  in  the  act  ceding 
jurisdiction  over  the  military  reservation  of  Fort  D.  A.  Russell,  Wyo., 
of  the  power  to  tax  persons  and  corporations  therein,  was  constitu- 
tional and  operative.  C.  27365,  Oct.  15,  1910.  But  a  consent  to  pur- 
chase, as  the  term  is  intended  in  the  constitutional  provision  (Art. 
I,  sec.  8,  cl.  17),  conveys  the  whole  or  an  exclusive  jurisdiction  where 
the  purchase  is  for  a  purpose  covered  by  such  provision.  So  where  a 
State  legislature,  in  giving  consent  to  a  purchase  for  a  purpose 
covered  by  said  clause  of  the  Constitution,  couples  with  it  a  condi- 
tion or  qualification  inconsistent  with  the  possession  of  exclusive 

1  See  United  States  v.  Cornell,  2  Mason,  60;  6  Op.  Atty.  Gen.,  577,  578;  7  id.,  628, 
629;  8  id.,  30, 104,  387;  13  id.,  411.  A  State  may  give  such  consent  by  a  single  general 
act,  prospective  in  terms,  and  covering  all  cases  of  future  purchases  by  the  United 
States.  Note,  for  example,  the  act  of  the  Legislature  of  Texas  of  Apr.  4, 1871,  remarked 
upon  in  the  opinion  of  the  Attorney  General  of  Apr.  10,  1878  (15  Op.,  480). 

2  See  the  subsequent  opinion  of  the  Atty.  Gen.  in  13  Op.,  131. 

3  See  Fort  Leavenworth  R.  R.  Co.  v.  Lowe,  114  U.  S.,  525. 


PUBLIC   PROPERTY  V  E  1  a  (l).  935 

jurisdiction  by  the  United  States — as  a  condition  that  the  State 
shall  retain  the  same  civil  and  criminal  jurisdiction  over  persons  and 
their  property  on  the  land  that  it  has  over  other  persons  and  property 
in  the  State,  or  shall  retain  the  right  to  tax  persons  living  on  the  land 
and  their  property — lield,  that  the  jurisdiction  is  not  such  as  is 
designed  by  the  Constitution,  and  can  not  legally  be  accepted  by 
the  United  States.^  P.  59,  169,  4O8,  Apr.  and  May,  1893;  63,  98, 
Dec,  1893;  64,  330,  Apr.,  1894.  Where,  however,  consent  was  given 
to  the  purchase  of  lands  for  the  Washington  Aqueduct,  in  terms 
wliich  authorized  the  United  States  to  exercise,  concurrently  with 
the  State,  *'such  jurisdiction  over  the  premises  as  may  be  necessary 
for  the  said  purpose,"  held  that  the  cession,  being  limited  to  concur- 
rent jurisdiction  with  a  State,  did  not  exclude  the  authority  of  the 
local  State  officials  to  make  arrests  for  offenses  'committed  within  the 
premises  covered  by  the  cession.*  C.  20606,  Oct.  19, 1906,  and  June  7, 
1907. 

V  E  1  a  (1).  Where  a  State  statute,  in  ceding  jurisdiction  to  the 
United  States  over  certain  lands  purchased  within  the  State  by  the 
authority  of  Congress  as  sites  for  pubhc  structures,  added — ''But 
the  State  reserves  the  right  to  execute  process  lawfully  issued  under 
its  authority  within  and  upon  said  sites,"  etc.,  advised  t\i2it  such  res- 
ervation might  properly  be  regarded  as  having  the  same  effect  as  that 
indicated  by  Attorney  General  Cushing  in  8  Op.,  387,  viz,  as  reserving 
merely  the  right  to  serve  process  within  the  lands  for  acts  done  and 
crimes  committed  without  the  same  (so  as  to  prevent  them  from  becom- 
ing an  asylum  for  fugitives  from  justice),  and  that  the  cession  might 
therefore  properly  be  accepted  as  sufficiently  vesting  in  the  United 
States  the  exclusive  jurisdiction  over  the  premises  contemplated  by 
the  Constitution.  R.  42,  567,  Am.  3,  1880;  43,  234,  Feb.,  1880;  P. 
27,  132,  Oct.,  1888. 

V  E  1  a  (2).  Where  a  State  statute,  in  consenting  to  the  purchase 
by  the  United  States  of  land  within  the  State  and  ceding  to  the 
United  States  jurisdiction  over  the  same,  added  that  such  jurisdic- 
tion should  be  exercised  '^concurrently  with''  the  State,  held  that  this 
quahfication  was  subject  to  the  objection  that  it  amounted  to  more 
than  the  mere  reservation  (not  unfrequent)  of  the  right  to  serve 
upon  the  land  legal  process  for  acts  done  and  crimes  committed  out- 
side of  the  same,  and  should  therefore  be  regarded  as  inconsistent 
with  a  grant  of  exclusive  jurisdiction  to  the  United  States  over  such 
land ;^  further  that  it  so  far  qualified  the  consent  given  to  the  pur- 
chase as  to  make  it  at  least  doubtful  whether,  in  view  of  the  pro- 
visions of  section  355,  R.  S.,  the  Secretary  of  War  would  be  author- 
ized to  expend  an  appropriation  which  had  been  made  by  Congress 
for  the  erection  of  public  buildings  on  the  land.  R.  4^,  ^^7,  Feb., 
1880. 

1  See  8  Op.  Atty.  Gen.,  418. 

2  See,  however,  opinion  of  the  Attorney  General  dated  July  3,  1907  (26  Op.  Atty. 
Gen.,  289),  where  it  was  held  that  the  constitutional  provision  covers  the  purchase 
of  land  "needful"  for  any  reason  "to  the  discharge  of  any  of  the  constitutional  duties 
or  the  exercise  of  any  of  the  constitutional  powers  of  the  United  States,"  and  that 
the  United  States  acquired  exclusive  jurisdiction  over  the  premises. 

3  See  United  States  v.  Cornell,  2  Mason,  60;  United  States  v.  Davis,  5  id.,  356; 
Lasher  v.  State,  30  Texas  Appeals,  387;  6  Op.  Atty.  Gen.,  577,  578:  7  id.,  628,  634; 
8  id.,  30,  102,  411,  417;  20  id.,  242,  298,  611. 


936  PUBLIC   PEOPERTY  V  E  1  C. 

V  E  1  c.  It  has  repeatedly  been  held,  and  is  now  regarded  as  well 
settled  law,  that  exclusive  legislation  and  exclusive  jurisdiction  mean 
one  and  the  same  thing,  and  that  where  a  State  has  ceded  to  the 
United  States  the  right  of  exclusive  legislation  over  a  tract  of  land 
within  the  territorial  limits  of  the  State,  a  reservation  to  the  State 
of  concurrent  jurisdiction  is  valid  only  so  far  as  it  is  not  repugnant  to 
the  exclusive  jurisdiction  of  the  United  States.  Thus  where  the  act 
of  the  legislature  provided  that  'Hhe  United  States  may  enter  upon 
and  occupy  any  land  which  may  have  been  or  may  be  purchased,  or 
condemned,  or  otherwise  acquired,  and  shall  have  the  right  of  exclusive 
legislation  and  concurrent  jurisdiction  together  with  the  State  *  *  * 
over  such  land  and  the  structures  thereon,  and  shall  hold  the  same 
exempt  from  all  State,  county,  and  municipal  taxation,"  it  was  held  thsit 
the  only  legal  effect  of  the  '' concurrent  jurisdiction"  therein  reserved 
to  the  State  was  to  admit  of  the  service  of  civil  and  criminal  process 
by  the  State  upon  the  lands  of  the  United  States,  and  thus  to  prevent 
such  places  from  becoming  a  sanctuary  for  fugitives  from  justice. 
R.50,  255,  May,  1886;  C.  1581,  July,  1895. 

V  E  1  d.  Where  the  State  of  New  Jersey  ceded  jurisdiction  over  land 
at  Sandy  Hook,  N.  J.,  for  military  purposes,  with  the  proviso  that  the 
jurisdiction  so  ceded  shall  not  ''prevent  the  operation  of  the  public 
laws  of  this  State  within  the  bounds  of  the  said  tract  so  far  as  the 
same  may  not  be  incompatible  with  the  free  use  and  enjoyment  of  the 
said  premises  by  the  United  States  for  the  purposes  above  specified," 
held  that  without  this  proviso  there  could  be  no  doubt  that  the  cession 
would  be  of  the  entire  jurisdiction  of  the  State  with  reservation  of  the 
right  to  serve  process;  that  if  the  proviso  be  given  full  operation  it 
would,  apparently,  retain  the  right  to  pass  laws  and  enforce  the  same 
within  the  reservation  subject  to  the  limitations  stated,  so  that  the 
jurisdiction  ceded  by  the  act  would  be  concurrent  only ;  that  the  proviso 
might  also  be  construed  as  intended  to  provide  that  on  the  separation 
of  the  territory  from  the  jurisdiction  of  the  State  the  laws  of  the  State 
then  in  force  would  continue  operative  within  the  ceded  territory 
until  changed  by  Congress  ;^  and  that  as  the  latter  construction  would 
not  be  inconsistent  with  the  terms  of  the  cession  and  with  the  apparent 
intent  to  cede  to  the  United  States  the  jurisdiction  contemplated  by 
clause  17,  section  8,  of  Article  I  of  the  Constitution,  it  should  be  adopted 
so  that  the  act  as  a  whole  would  be  construed  as  conferring  on  the 
United  States  exclusive  jurisdiction  over  the  premises.^  C.  21044, 
Feb.  6,  1907. 

V  E  1  6.  The  term  ''purchase,"  as  employed  in  statutes,  has  been 
construed  as  embracing  all  the  forms  of  acquiring  title — including  con- 
demnation— except  that  by  descent.^  But  in  Kohl  v.  U.  S.,^  the 
Supreme  Court  says:  "It  is  true  the  words  'to  purchase'  might  be 
construed  as  including  the  power  to  acquire  by  condemnation,  for, 
technically,  purchase  includes  all  modes  of  acquisition  other  than  that 
of  descent.  But,  generally  in  statutes,  as  in  common  use,  the  word 
is  employed  in  a  sense  not  technical,  only  as  meaning  acquisition  bv 
contract  between  the  parties,  without  governmental  interference.  ' 
In  a  case,  therefore,  of  certain  lands  in  a  State  acquired  by  the  United 
States  by  condemnation  in  the  exercise  of  the  right*^  of  eminent 

1  Chicago  &  Pacific  Ry.  Co.  v.  McGlinn  (114  U.  S.,  542). 

2  VII  Op.  Atty.  Gen.,  114,  121;  Ex  parte  Hebard,  4  Dillon,  380,  384;  Burt  v.  Mchts. 
Ins.  Co.,  106  Mass.,  356,  364. 

39IU.  S.,  367,  374. 


PUBLJC  PROPERTY  V  E  2  d.  937 

domain,  advised  that  a  special  act  of  cession  of  jurisdiction  be  obtained 
from  the  State.     P.  50,  4U,  Dec,  1891. 

V  E  2  d.  In  view  of  the  general  rule  of  interpretation,  that  a 
statute  is  not  to  be  construed  as  retrospective  unless  its  language 
clearly  shows  that  it  was  so  intended,  held  that  a  general  statute  of 
1891,  givhig  the  consent  of  the  State  of  Louisiana  to  the  purchase  by 
the  United  States  of  land  within  the  State  for  public  purposes,  was 
jn  effect  prospective  and  did  not  apply  to  the  purchase  of  tlie  land  at 
Jackson  Barracks,  made  before  the  date  of  such  act.^  Moreover  the 
Constitution  of  Louisiana  of  1868  forbids  the  enactment  of  retrospec- 
tive laws.     R.  45  436,  Sept.,  1882;  L.  50,  95,  Mar.,  1886. 

V  F  1  a.  The  laws  of  a  State  regulating  the  use  of  the  water  of 
streams  thereof  for  irrigation  purposes  are  not  operative  on  a  military 
reservation  over  which  the  United  States  has  exclusive  jurisdiction. 
Thus  where  the  creek  had  its  source  on  such  a  reservation,  Tield  that 
parties  residing  on  said  creek  outside  the  reservation  had  no  legal 
rights  under  the  laws  of  the  State  in  the  waters  of  the  creek  until 
the  same  left  the  reservation,  but  recommended  that  the  proper 
commanding  officer  be  directed  to  so  regulate  the  use  of  the  water  on 
the  reservation  that  there  would  be  no  unnecessary  waste.  C.  2453, 
July  and  Sept.,  1896, 

A  law  of  the  State  of  New  York  of  February  17,  1909  (Consoli- 
dated Laws,  1909,  vol.  3,  p.  2100,  sec.  203),  required  emplo;^ers  to 
insure  their  workmen  agamst  injury.  Held  that  the  law  did  not 
extend  over  the  military  reservation  of  West  Point,  jurisdiction  over 
which  was  ceded  by  the  State  to  the  United  States,  reserving  only 
the  right  to  serve  '  *  any  process,  civil  or  crimmal,  under  the  authority 
of  the  State,  except  so  far  as  such  process  may  affect  the  real  or  per- 
sonal property  of  the  United  States."     C.  20947,  Oct.  12, 1910. 

V  F  1  a  (1).  The  State  of  Kansas  having  surrendered  to  the 
United  States  its  jurisdiction  over  the  military  reservations  of  Forts 
Leavenworth  and  RUey  by  an  act  of  its  legislature  of  February  23, 
1872,  which  was  earlier  in  date  than  the  prohibition  laws  of  the  State 
(having  their  origin  in  the  constitution  adopted  Nov.  2,  1880),  lield 
that  such  laws  did  not  extend  over  and  could  not  be  applied  to  those 
reservations.     P.  39,17,  Feb.,  1890. 

V  F  1  b.  The  law  is  settled  that  where  consent  to  purchase  has 
been  given,  or  exclusive  jurisdiction  has  been  ceded  over  land  in  a 
State,  occupied  for  public  purposes,  the  land  is  no  longer  a  part  of 
the  State  in  a  political  or  legal  sense,^  and  no  taxes,  poll  tax,  or  State, 

1  Compare  XV  Op.  Atty.  Gen.,  480. 

2  See,  on  this  general  subject,  the  following  as  the  principal  authorities:  Fort  Leav- 
enworth R.  R.  Co.  V.  Lowe,  114  U.  S.,  525;  United  States  v.  Travers,  2  Wheeler  C.  C, 
490;  Do.  V.  Tierney,  1  Bond,  571;  Do.  v.  Stahl,  Woolworth,  192,  and  McCahon,  206; 
Commonwealth  v.  Clary,  8  Mass.,  72;  Mitchell  v.  Tibbetts,  17  Pick.,  298;  Opinion  of 
Justices,  1  Met.,  580;  State  v.  Dimick,  12  N.  Hamp.,  194;  People  v.  Godfrey,  17  Johns., 
225;  Do.  v.  Lane,  1  Edmonds,  116;  Commonwealth  v.  Young,  Bright,  302;  In  re  O'Con- 
nor, 37  Wise,  379;  Clay  v.  State,  4  Kans.,  49;  Painter  v.  Ives,  4  Nebr.,  122;  Sinks  v. 
Reese,  19  Ohio  State,  316;  6  Opins.  Atty.  Gen.,  577;  7  id.,  628;  8  id.,  30,  102,  387,  418. 

In  this  connection  note  an  opinion  of  the  Attorney  General  of  February  7,  1880 
(16  Opins.,  468),  that  whether  a  superintendent  of  a  national  cemeterj^  can  legally  be 
required  to  work  upon  the  public  roads  of  the  State  (in  compliance  with  a  law  of  the 
State  requiring  all  male  citizens  between  certain  ages  to  perform  such  work),  must 
depend  upon  whether  he  resides  upon  land  acquired  by  the  United  States  over  which 
the  State  has  parted  with  its  jurisdiction;  that  if  the  jurisdiction  over  the  cemetery 
grounds  within  which  the  superintendent  resides  has  been  surrendered  to  the  United 
States,  he  is  exempt  from  such  obligation. 


938  PUBLIC   PKOPEBTY  V  P   1  b  (s). 

county,  town,  or  school  tax,  or  other  form  of  taxation,  can  thereafter 
legally  be  imposed  upon  those  lawfully  resident  or  commorant  thereon 
{R.  49 J  187,  July,  1885) ;  and  that  such  persons  are  withdrawn  from 
the  civil  and  criminal  jurisdiction  of  the  courts  of  the  State,  and  from 
liability  to  the  process  of  the  same  (except  so  far  as  may  legally  have 
been  reserved  by  the  State — see  V  and  V  E  1  a  (1)  ante).  On  the 
other  hand,  such  persons  are  not  entitled  to  enjoy  any  of  the  priv- 
ileges of  such  citizen  as  the  privilege  of  voting  or  the  use  of  the  public 
schools,  etc.  R.  21,  667,  July,  1866;  33,  8,  Mar.,  1872;  39,  151, 
Aug.,  1887;  C.  3521,  Sept.,  1897.  Held,  therefore,  that  officers  sta- 
tioned at  Fort  Trumbull,  Conn.,  were  not  entitled  to  send  their 
children  to  the  schools  of  the  city  of  New  London  without  paying 
the  fees  exacted  by  the  city  in  cases  where  parents  elect  to  send  their 
children  to  a  school  in  a  district  different  from  that  in  which  they 
reside.     P.  62,  348,  Nov.,  1893. 

V  F  1  b  (3).  The  effect  of  the  cession  of  exclusive  jurisdiction  is 
to  withdraw  the  territory  and  its  inhabitants  from  aU  control  of  the 
State  authorities.^  So,  lield  that  exclusive  jurisdiction  having  been 
ceded  over  Davids  Island,  the  coroner  of  Westchester  County,  N.  Y., 
would  have  no  authority  to  hold  inquests  on  the  bodies  of  persons 
dying  on  the  island ;  but  advised  that  he  be  permitted  to  hold  inquests 
on  the  island  on  the  bodies  of  unknown  persons  found  washed  upon 
its  shores  or  floating  in  the  neighboring  waters.  P.  36,  143,  Oct., 
1889;  C.  25936,  Bee,  1909.  Also  lield,  with  respect  to  the  proposal 
of  the  board  of  health  of  New  RocheUe,  N.  Y.,  to  apply  quarantine 
regulations  to  enlisted  men  on  the  military  reservation  of  Fort 
Slocum,  N.  Y.,  that  the  local  board  of  health  would  have  no  authority 
as  a  matter  or  rigkt  within  the  reservation,  and  that  whether  they 
should  be  permitted  to  do  so,  by  comity,  was  a  matter  to  be  deter- 
mined by  the  local  military  authorities  after  consultation  with  the 
officers  of  the  said  board  of  health.^  C.  17372,  Jan.  16,^  1905.  Also 
lield,  that  the  act  of  the  Missouri  Legislature  providing  for  vital 
statistics  was  not  operative  within  the  national  cemeteries  near 
Jefferson  City  and  Springfield,  Mo.,  over  which  exclusive  jurisdiction 
had  been  ceded.  C.  26128,  Jan.  27,^  1910.  Also  JieU,  with  respect 
to  the  easements  for  highways  within  the  military  reservations  of 
Fort  Hamilton,  N.  Y.,  and  Fort  Revere,  Mass.,  that  the  right  to 
regulate  and  dispose  of  the  easements  was  in  the  United  States  and 
not  m  the  local  highway  authorities.  C.  3565,  Oct.  13,  1897;  15264, 
Sept.  29,  1903;  21396,  Apr.  17,  1907.  Also  held,  with  respect  to 
permitting  agents  of  life  msurance  companies  to  solicit  business  on 
the  military  reservation  of  Fort  Leavenworth,  Kans.,  without  license 
from  the  State  authorities,  that  as  no  reservation  was  made  in  the 
act  ceding  jurisdiction  of  the  right  to  regulate  such  matters,  no 
State  license  was  necessary.  C.  224-66,  Dec.  11,  1907.  Also  held, 
that  the  State  authorities  had  no  jurisdiction  regarding  the  licensing 
and  regulation  of  marriage  ceremonies  on  the  reservation  of  Spring- 
field £mory,  Mass.,  but  advised  that  the  marriage,  including  the 
procuring  of  a  license,  registration,  and  ceremony,  be  entered  into 
m  accordance  with  the  State  law,  in  order  that  evidence  of  the 
marriage  may  be  a  matter  of  public  record.     0.  1826,  June  6,  1910, 

1  In  re  Ladd,  74  Fed.  Rep.,  31;  Story  on  the  Constitution,  vol.  2,  sec.  1227. 


PUBLIC   PROPERTY  V  F  1  b  (s)  (d),  939 

V  F  1  b  (3)  (d).  Where  the  fee-simple  title  to  highways  was  in 
the  abutting  property  owners,  subject  to  the  public  easement  for 
highway  purposes,  and  the  Government  acquired  title  to  the  land 
on  both  sides  of  a  public  roadway  running  through  a  military  reser- 
vation, and  the  State  by  general  law  ceded  exclusive  jurisdiction 
over  the  entire  reservation  to  the  United  States,  held  that  the  effect 
of  the  cession  was  to  cede  to  the  United  States  political  jurisdiction 
over  that  portion  of  the  roadway  within  the  limits  of  the  reservation, 
so  that  tlie  State  authority  over  the  roadway  ceased  with  such 
cession,  and  if  it  became  necessary  for  the  proper  use  of  the  reser- 
vation to  close  the  roadway,  such  action  could  legally  be  taken  by 
llie  United  States.  C.  8565,  Oct.  13,  1897;  21896,  Apr.  17,  1907; 
14715,  May  12,  1909.     Held,  further,  that  the  road  could  be  closed 

W'  the  local  military  authorities  under  orders  of  the  Secretary  of 
ar.     C.  14715,  May  12,  1909. 

V  F  1  b  (3)  (^).  On  an  application  of  the  administrator  appointed 
by  the  court  of  the  parish  of  Orleans  of  the  succession  of  a  deceased 
soldier  who  died  at  Jackson  Barracks,  La. — a  place  over  which  juris- 
diction had  been  ceded  by  language  that  the  United  States  ''shall 
have  the  right  of  exclusive  legislation,  and  concurrent  Jurisdiction 
together  with  the  State  of  Louisiana" — to  have  certain  effects  within 
the  reservation  turned  over  to  him,  held  (1)  that  the  language  of  the 
cession  should  be  construed  to  give  the  United  States  exclusive  juris- 
diction, subject  only  to  the  right  of  the  State  to  serve  process  on  the 
reservation;  (2)  that  if  so  construed,  the  State  court  was  without 
jurisdiction  to  administer  the  effects  on  the  reservation,^  if  that 
State  was  not  the  domicile  of  the  deceased,  since  the  situs  of  the 
property  was  not  mthin  the  jurisdiction  of  the  State;  and  (3)  that  as 
the  court- assumed  jurisdiction  it  might  be  assumed  that  the  domicile 
of  the  deceased  was  in  the  State.  Advised,  however,  that  the  effects 
be  taken  outside  the  reservation  and  there  turned  over  to  the  admin- 
istrator, in  which  case  the  property  would  be  within  the  jurisdiction 
of  the  State.     0.  16158,  Apr.  8,1904.  ^ 

Held,  with  reference  to  the  disposition  of  money  found  on  a  body 
which  could  not  be  identified  and  which  was  washed  ashore  on  the 
reservation  at  Fort  Dade,  Fla.-,  that  as  it  did  not  appear  that  juris- 
diction had  been  ceded  over  this  reservation,  the  money  should  be 
turned  over  to  the  sheriff  of  the  county,  who,  by  the  law  of  the  State, 
was  ex  officio  administrator  of  the  effects  of  deceased  persons  found 
in  the  State  in  the  absence  of  a  legal  representative  otherwise  ap- 
pointed.^ C.  11973,  Jan.  27,  1902.  In  a  similar  case  where  the  body 
of  an  unidentified  sailor  was  found  on  the  beach  at  Fort  McRee,  Fla., 
over  which  jurisdiction  had  been  ceded  by  the  State,  held  that  the 
money  should  not  be  turned  over  to  the  State  officials,  but,  in  the 
absence  of  a  representative  entitled  thereto,  should  be  deposited  in 
the  Treasury  as  property  escheated  to  the  Federal  Government.^ 
0.  23692,  Aug.  4,  1908. 

Held,  with  reference  to  the  disposition  of  the  effects  of  ex-soldiers 
dying  at  military  hospitals  where  exclusive  jurisdiction  had  been 
ceded,  that  in  the  absence  of  application  of  an  executor  or  adminis- 

^  See,  however,  Divine  v.  Unaka  Nat.  Bank  (Tenn.),  140  S.  W.,  747,  where  it  was 
held  that  the  State  courts  had  jurisdiction  on  the  ground  that  jurisdiction  over  such 
matters  had  not  been  conferred  on  the  Federal  courts. 

^  This  view  was  concurred  in  by  the  Solicitor  of  the  Treasury  Aug.  11,  1908. 


940  PUBLIC  PEOPERTY  V  p  1  b  (s)  (/^). 

trator  appointed  by  the  court  of  the  domicile  of  the  deceased,  after  a 
reasonable  time  the  effects  should  be  disposed  of  and  the  proceeds 
deposited  in  the  Treasury  of  the  United  States  in  accordance  with 
the  custom  as  to  effects  of  deceased  soldiers.  C.  7843,  Mar.  and  June, 
1900,  Mar.,  1910;  21856,  July,  1907;  28515,  June  10, 1911. 

V  F  1  b  (3)  Qi).  Where  the  jurisdiction  of  the  United  States  over 
any  military  reservation  or  other  place  is  unconditionally  exclusive, 
no  State  official  can  legally  serve  a  warrant  upon  an  officer  or  soldier 
within  the  limits  of  such  reservation  or  place.*  R.  81,  567,  July, 
1866. 

The  legality  of  the  service,  at  a  military  post,  of  process  issued 
in  a  suit  or  prosecution  instituted  in  a  State  court  depends  (as  to 
its  original  authority)  upon  the  question  whether  the  sovereignty  of 
the  soil  resides  wholly  m  the  United  States  (either  by  virtue  of  a 
reservation  of  the  same  by  the  United  States  upon  the  admission 
of  the  State,  or  of  its  subsequent  surrender  by  the  State)  or  is  shared 
by  the  State  government.  Where,  by  an  act  of  consent  or  cession  of 
the  legislature  of  a  State  in  which  a  military  reservation  or  post  is 
situated,  exclusive  jurisdiction  over  the  same  has  become  uncondi- 
tionally vested  in  the  United  States,  as  contemplated  by  Article  I, 
section  8,  clause  17,  of  the  Constitution,  no  process  issued  from  the 
State  courts  can  legally  be  served  thereon,  but  only  process  issued 
from  courts  of  the  United  States  can  be  there  executed.  Where, 
however,  in  ceding  jurisdiction,  the  State  has  reserved  to  itself  the 
right,  not  unfrequently  reserved  under  the  circumstances  (and  which 
it  is  often  for  the  advantage  of  the  United  States  to  have  reserved, 
since  otherwise  the  post  mi^ht  become  an  asylum  for  criminals)  to 
serve  within  the  premises  civil  and  criminal  process  on  account  of 
rights  accrued,  obligations  incurred,  or  crimes  committed  in  the  State 
but  outside  of  the  premises,  then  the  writs  of  the  State  tribunals  may 
be  executed  on  the  land  in  the  class  of  cases  thus  excepted.  Of 
course  where  there  has  been  no  cession  of  jurisdiction  by  the  State, 
its  officials  have  the  same  authority  to  serve  the  process  and  man- 
dates of  its  courts,  and  its  courts  have  the  same  jurisdiction  over  acts 
done  and  crimes  committed  within  the  military  post  as  elsewhere  in 
the  State,  the  mere  fact  of  the  ownership  or  occupation  of  the  land 
by  the  United  States  having  no  effect  to  except  it  from  the  operation 
of  the  State  laws.  R.  16,  51 4,  Aug.,  1865;  21,  567,  July,  1866;  33,  8, 
Mar.,  1872. 

V  G  1.  The  term  ''or  other  public  building  of  any  kind  whatever" 
used  in  section  355^  R.  S.,  held  to  include  the  viaduct  at  Rock  Island 
Arsenal,  for  the  construction  of  which  appropriation  was  made  by 
Congress  by  acts  of  1889  and  1890.2  p.^^^  ^^^^  jVov.,  1890.  Also 
Tield  to  include  the  "observation  towers,^'  for  the  erection  of  which 
in  the  Chickamauga  and  Chattanooga  National  Park  appropriations 
were  made  in  the  acts  of  August  5,  1892,  and  March  3,  1893.  Ces- 
sion of  jurisdiction  by  the  State  is  therefore  requested  in  each  case 

^  See  Civil  suit,  etc.  It  is  further  held,  in  Ex  parte  McRoberts,  16  Iowa,  600,  603, 
that  the  provisions  of  the  article  apply  only  to  officers  and  soldiers  while  within  the 
immediate  control  and  jurisdiction  of  the  military  authorities,  and  therefore  do  not 
apply  to  a  case  of  a  soldier  absent  on  furlough;  but  that  such  a  soldier,  pending  his 
furlough  may  be  arrested  in  the  same  manner  as  any  civilian. 

2  In  7  Op.  Atty.  Gen.,  114,  Mr.  Gushing  treated  the  land  acquired  by  the  United 
States  for  the  use  of  the  Washington  Aqueduct  as  coming  wimin  the  provisions  of 
sec.  355,  R.  S. 


PUBLIC   PROPERTY  V  G  1   a.  941 

before  the  appropriation  can  legally  be  expended.  P.  60,  30,  JunCj 
1893;  63,  60,  Dec,  1893;  C.  3060,  Apr.  3,  1897;  3066,  Avr.  17, 
1897;  6946,  Sept  20,  1899;  753^,  Jan.  17,  1900;  7553,  Feb.  2, 
1900;  7793,  Mar.  9,  1900;  8649,  Feb.  8,  1901;  12164,  Mar.  31,  1902; 
13817,  Dec.  19, 1902. 

V  G  1  a.  On  the  question  whether  cession  of  jurisdiction  is  required 
where  land  is  purchased  for  park  purposes,  held  that  in  view  of 
section  355,  R.  S.,  the  cession  would  be  required,^  but  that  apart 
from  this  statute  it  might  be  questioned  whether  such  cession  would 
be  necessary  or  desirable  where  lands  are  accjuired  for  park  or  river 
and  harbor  purposes,  since,  if  the  State  retains  its  jurisdiction  over 
such  places,  there  would  be  a  convenient  forum  for  the  trial  of 
offenses  committed  thereon.     C.  13817,  Dec.  19,  1902. 

V  G  2.  Section  355,  R.  S.,  in  prohibiting  the  expenditure  of  public 
money  upon  lands  purchased  for  a  purpose  therein  mentioned,  before 
the  consent  of  the  otate  to  the  purchase  of  the  land  is  obtained,  does 
not  preclude  the  mere  purchase  itself.  The  land  therefore  may  legallv 
be  paid  for,  and  the  title  thereto  acquired,  in  the  absence  of  such 
consent.^  P.  63,  1,  Dec,  1893.  Neither  the  constitutional  provision 
(Art.  I,  sec.  8,  cl.  17)  nor  the  statute  (sec.  355,  R.  S.)  precludes  the 
United  States  from  acquiring  the  title  to  the  land.  P.  64,  330,  Apr., 
1894;  0.  7793,  Mar.,  1900;  13817,  Dec,  1902. 

V  G  3.  The  title  of  the  United  States  to  the  lands  at  Fort  Monroe,  as 
ceded  by  the  State  of  Virginia,  being  limited  to  the  line  of  ordinary 
low-water  mark,  lield  in  view  of  the  provisions  of  sections  355  and 
4661,  R.  S.,  that  a  cession  of  jurisdiction  over  the  necessary  soil  under 
the  water  beyond  low-water  mark  should  be  obtained  from  the  State 
before  tlie  appropriation,  made  by  the  act  of  August  10,  1888,  for  the 
iron  pier  to  be  constructed  at  Fort  Monroe,  be  expended.  R.  53,  328, 
Apr.,  1887. 

V  H  1  a.  Where  political  jurisdiction  over  a  Territory  passes  from 
one  sovereignty  to  another  it  is  a  well-established  rule  that  the 
municipal  laws  continue  in  force  until  abrogated  by  the  new  sov- 
ereign.^ Held,  therefore,  that  where  exclusive  jurisdiction  has  been 
ceded  over  reservations  within  States,  the  State  laws  other  than 
criminal  continue  operative  within  the  reservations  until  changed 
by  Con^ss,  but  that  the  operation  of  the  State  criminal  laws  is 
superseded  by  the  criminal  laws  of  the  United  States.  C.  16691, 
Sept.  10,  1902;  19489,^  Mar.  29,  1906;  19855,  June  4,  1906.  With 
respect  to  reservations  in  Territories,  lield  that  the  act  of  the  President 
in  making  the  reservation  has  no  effect  on  the  operation  of  the  Terri- 
torial laws  unless  their  operation  is  modified  bv  Congress."*  C.  16691, 
Sept.  10,  1902;  19855,  June  4,  1906. 

^  See  7  Op.  Atty.  Gen.,  114,  where  the  statute  waa  held  to  require  cession  of  juris- 
diction over  lands  required  for  the  use  of  the  Washington  Aqueduct. 

2  See  10  Op.  Atty.  Gen.,  34,  39;  15  id.,  212,  213;  III  Comp.  Dec,  530. 

^  Fort  Leavenworth  Railroad  Co.  v.  Lowe,  114  U.  S.,  525;  Chicago  Railroad  Co.  v. 
McGlinn,  id.,  542;  DiAdne  v.  Unaka  National  Bank  (Tenn.),  140  S.  W.,  747. 

*  With  respect  to  the  operation  of  the  laws  of  Porto  Rico,  the  Secretary  of  War,  in  a 
letter  to  the  governor  dated  June  6, 1906,  said:  "I  concur  in  the  opinion  rendered  by 
the  acting  judge  advocate  general  in  so  far  as  it  is  held  that  the  laws  and  ordinances  of 
Porto  Rico,  when  not  in  conflict  with  laws  of  the  United  States  not  locally  inapplicable 
extend,  and  are  in  force  in  and  over  all  landsreserved  by  the  United  States  for  military 
and  other  purposes,  saving  always  that  instrumentalities  of  the  Federal  Government 
located  thereon  are  exempt  from  local  control." 


942  PUBLIC   PROPEETY  V   H   1  b. 

V  H  1  b.  Section  5391,  R.  S.,  provides  that  any  offense  committed 
in  any  place  ceded  to  and  under  the  jurisdiction  of  the  United  States, 
shall,  where  not  specially  made  punishable  by  any  law  of  the  United 
States,  be  visited  with  the  same  punishment  as  is  provided  for  such 
offense  by  the  laws  ''now  in  force"  of  the  State  within  which  such 
place  is  situated.  This  provision,  originally  enacted  March  3,  1825, 
was  substantially  reenacted  April  5,  1866.  In  1832  it  was  ruled  by 
the  Supreme  Court  ^  that  the  provision  of  1825  was  'limited  to  the 
laws  of  the  several  States  in  force  at  the  time  of  its  enactment."  And 
in  recent  cases,  arising  in  Montana  ^  and  Colorado,^  it  has  been  held 
that  the  provision  in  section  5391  did  not  apply  to  the  offense  because 
these  States,  with  their  laws,  did  not  come  into  existence  till  subse- 
quentl;y^  to  the  date  of  the  enactment  of  1866.  Thus  the  section 
(5391)  is  operative  neither  as  to  offenses  committed  in  States  which 
entered  the  Union  since  1866,  nor  as  to  those  committed  in  States 
where,  April  5,  1866,  there  existed  no  criminal  statute  providing  for 
the  punishment  of  the  particular  offense.  A  modification  of  the 
existing  law  is  called  for.  This  can  not  be  done  by  legislation  adopt- 
ing beforehand  all  the  criminal  laws  of  a  State  which  shall  be  in  force 
at  the  time  of  the  criminal  act,  because  that  would  be  a  delegation  by 
Congress  of  its  legislative  power  to  the  States.  The  reenactment, 
from  time  to  time,  therefore,  of  section  5391,  or  of  a  provision  to  a 
similar  effect,  recommended^  P.  57,  488,  Feb.,  1893;  61,  435,  Sept., 
1893;  a  3546,  Sept.,  1897;^  19489,  Mar.  29,  1906. 

V  H  2  b.  Wliere  a  military  post  or  reservation  is  situated  in  a 
Territory,  the  Territorial  courts  are  authorized  to  issue  process  for 
the  arrest  of  officers  or  soldiers  of  the  command  charged  with  crime, 
or  to  cite  them  to  appear  before  them  as  defendants  in  civil  actions, 
or  to  attach,  replevy  upon,  or  take  in  execution  any  property  belong- 
ing to  them  within  the  posts,  etc.,  not  specially  exempted  from  legal 
seizure.  This  for  the  reason  that  the  courts  in  which  is  vested  the 
judicial  power  of  a  Territory  are  not  the  courts  of  a  sovereignty 
distinct  from  the  United  States  but  are  the  creatures  of  Congress,^ 
being  established  by  it  directly  or  indirectly  by  its  authority  through 
the  Territorial  legislature,  under  the  provision  of  the  Constitution 
(Art.  IV,  sec.  3,  par.  2)  empowering  Congress  ''to  make  all  needful 
rules  and  regulations  respectmg  the  Territory  belonging  to  the  United 
States."  Thus  while  officials  charged  with  the  service  of  the  process 
of  such — as,  indeed,  of  any — courts  would,  in  comity,  properly  refrain 
from  entering  a  military  post  for  the  purpose  of  serving  process 
therein,  or  at  least  from  making  the  service,  till  formal  permission 
for  the  purpose  had  been  sought  and  obtained  from  the  commanding 

1  U.  S.  V.  Paul,  6  Peters,  141. 

2  U.  S.  V.  Barnaby,  51  Fed.  Rep.,  20. 

^U.  ^.v.  Curraii,citedinEx.  Doc.  No.  14,  H.  R.,  53d  Cong.,  Istsess. 

*  See  sec.  289  of  Criminal  Code,  approved  Mar.  4,  1909  (35  Stat.  1088,  1145). 

^  In  United  States  v.  Kauchi  Motonara  and  United  States  v.  Matsunaga,  cases  pend- 
ing in  the  United  States  district  court  for  the  Territory  of  Hawaii,  said  court  overruled 
the  demurrer  for  want  of  jurisdiction,  holding  that  the  words  "exclusive  jurisdiction 
of  the  United  States  "  in  the  Penal  Code  mean  the  power  and  authority  of  the  United 
States,  whether  partly  exercised  through  its  subordinate  (i.  e.,  the  Territorial  Govern- 
ment) or  not.  The  opinion  conceded  that  the  Territorial  courts  would  have  jurisdiction 
over  offenses  committed  on  the  reservation,  but  held  that  such  jurisdiction  did  not  ex- 
clude the  jurisdiction  of  the  United  States  district  court  also.  See  also  7  Op.  Atty. 
Gen.,  564;  26  id.,  91;  Burgess  v.  Territory  (8  Mont.,  57,  19  Pac,  558);  Reynolds  v. 
People  (1  Colo.,  179);  Scott  v.  Wyoming  (1  Wyo.,  40). 


PUBLIC   PROPERTY  V  H   2   C.  943 

officer,  vet,  on  the  other  hand,  officers  commanding  military  posts 
in  the  'Territories  should  certainly  interpose  no  obstacle  to  the  due 
service  within  their  commands  of  the  legal  process  of  the  Territorial 
courts.*  R.  28,  1,  July,  1868;  39,  641,  May,  1878;  C.  III4I,  Aug. 
27,  1901, 

V  II  2  c.  In  the  absence  of  any  statute  directly  or  by  necessary 
implication  extending  the  powers  of  the  local  government  of  the 
District  of  Columbia  over  tlie  military  reservation  and  post  at  the 
arsenal  in  Washington,  held,  that  the  health  officer  appointed  by  the 
commissioners  (constituting  such  government)  would  not  be  em- 
powered of  his  own  authority  and  without  the  consent  of  the  military 
commander  to  enter  upon  such  reservation  and  remove  or  abate  a 
nuisance  deemed  bv  him  to  exist  thereon.  The  effect  of  the  legisla- 
tion in  regard  to  the  government  of  the  District  is  to  except  there- 
from the  public  buildmgs  and  grounds  of  the  United  States,  which 
are  left  to  the  charge  of  certain  specified  officials.  Even  further 
removed  from  such  government  is  the  reservation  at  the  arsenal, 
the  same  being  a  military  post  commanded  by  the  President,  through 
a  military  subordinate,  and  governed  by  military  orders  and  regula- 
tions. R.  42,  270,  May,  1879;  C.  17372,  Jan.  16,  1905;  26^50, 
Mar.  31,  1910. 

VI  A.  The  vesting  of  a  right  of  way  in  the  United  States  does  not 
merely  authorize  the  Government  to  send  its  agents  and  employees 
on  the  land  for  purposes  of  construction,  etc.,  but  endows  it  with  such 
right  and  control  as  to  enable  it  to  keep  the  way  open  and  insure  its 
continued  use  for  the  purposes  designed.  But  where  it  was  proposed 
to  cede  to  the  United  States  a  right  of  way  from  a  city,  by  one  of  its 
laid-out  streets,  to  an  adjacent  national  cemetery,  held  that  the  muni- 
cipality, in  the  absence  of  specific  authority  conferred  by  the  legisla- 
ture, was  hot  empowered  to  convey  such  a  right,  but  that  the  legisla- 
ture alone  could  do  so,  just  as  the  legislature  alone  could  vacate  or 
discontinue  a  street.^     P.  30,  45,  Jan.,  1889. 

VI  A  1.  So,  held  that  an  appropriation  made  by  Congress  for 
constructing  a  road  from  a  city  through  one  of  its  streets  to  a 
national  cemetery  could  not  legally  be  expended  upon  a  right  of  way 
izranted  by  a  city  ordinance,  the  legislature  not  having  delegated  such 
jurisdiction  over  its  streets  to  the  municipality,  which  could  not 
therefore  transfer  to  a  third  party  a  permanent  property  therein. 
P.  64,  423,  July,  1892.  Held  that  where  such  a  municipality  had 
not  been  empowered  to  convey  a  right  of  way  outside  its  corporate 
limits,  the  conveyance  should  be  made  directly  to  the  United  States 
from  the  individual  owners  of  the  land,  and  that  for  the  latter  to 
convey,  mediately,  to  the  city  would  be  an  unnecessary  proceeding. 
P.  29,  68,  69,  Dec,  1888. 

VI  B.  Without  express  authority  from  Congress,  the  Secretary  of 
War  can  not  grant  to  railway  companies  rights  of  way  over  the  lands 
of  the  United  States  under  his  control,  but  he  has  frequently  by 
revocable  license  granted  permission  to  lay  and  maintam  railway 

^  See  the  opinion  of  the  Judge  Advocate  General,  published  in  G.  0.  30,  Hdqrs.  of 
Army,  1878,  m  connection  with  7  Op.  Atty.  Gen.,  564.  But  see  contra,  In  re  Charles 
Brown  and  Austin  Burke,  on  Habeas  Corpus  (Sept.,  1884),  "In  the  district  court 
[Territorial]  of  the  second  judicial  district,  holding  terms  at  Vancouver, ' '  published 
in  Circular  21,  Department  of  the  Columbia,  June  15,  1885. 

2  Dillon  on  Municipal  Corporations,  647,  652,  665;  Kreigh  v.  Chicago,  86  111.,  407. 


944  PUBLIC   PKOPERTY  VI   B   1. 

tracks  upon  such  Government  lands.  C.  241,  Aug.,  1894;  65S9,  June, 
1899;  20944,  Jan.  15,  1907. 

VI  B  1.  A  State  can  have  no  authority  to  appropriate  land  included 
in  a  military  reservation  of  the  United  States  to  the  purposes  of  a  right 
of  way  for  a  railjoad.^  Such  a  right  of  way  granted  by  a  State  legis- 
lature can  not  be  recognized  as  legal  by  the  United  States.  B.  31, 
249,  Mar.,  1871. 

VI  B  2.  Where  an  act  of  Congress  grants  to  an  individual  or  corpo- 
ration a  right  of  way  (or  other  franchise),  no  formal  acceptance  of  the 
same  is  necessary.  By  simply  acting  under  the  grant,  the  grantee 
accepts  the  same  with  all  its  conditions.     P.  69,  4I8,  May,  1893. 

VI  B  3.  Where  a  grant  of  a  right  of  way  is  made  by  the  United 
States  to  a  particular  grantee  over  lands  of  the  United  States,  but  with- 
out designating  the  precise  strip  of  land  in  the  entire  body  of  land 
which  is  to  be  occupied,  it  is  held  by  recent  authority  that  if  the  gran- 
tee selects  such  way,  and  the  grantor  does  not  object  to  such  selection 
but  silently  acquiesces  therein,  he  substantially  constitutes  the  grantee 
his  agent  for  such  selection,  and  himself  joins,  in  law,  in  the  selection, 
and  the  title  to  the  tract  selected  passes  to  the  grantee.^  This  ruling 
held  applicable  to  the  case  of  the  right  of  way  through  the  Fort  Leav- 
enworth Military  Reservation,  granted  to  the  Kansas  &  Missouri 
Bridge  Co.,  by  the  act  of  July  20,  1868,  c.  179.     P.  60, 395,  Dec,  1891. 

VI  B  4.  Where  authority  was  given  to  the  Secretary  of  War,  by 
act  of  Congress,  to  grant  permission  for  an  electric  railway  on  a  reser- 
vation under  such  conditions  and  requirements  as  he  might  prescribe, 
Tield,  on  the  question  of  whether  the  Secretary  of  War  could  require 
the  joint  use  of  the  tracks  on  the  reservation  by  another  railway 
company,  that  it  was  not  intended  to  confer  a  monopoly  upon  the 
first  company,  and  that  it  was  within  the  authority  of  the  Secretary 
of  War  to  require  both  companies  to  use  the  tracks  upon  p'ayment  of 
their  respective  shares  of  the  cost  of  construction  and  maintenance. 
C.  13246,  Sept.  26,  1904. 

VI C  1.  To  legalize  the  use  of  a  public  road  (State,  county,  or  Terri- 
torial) across  a  corner  of  a  military  reservation,  held  as  follows:  (1) 
The  Secretary  of  War  may,  under  the  act  of  July  5, 1884  (23  Stat.  104), 
permit  the  extension  of  such  a  road  across  a  military  reservation 
''whenever,  in  his  judgment,  the  same  can  be  done  without  injury  to 
the  reservation  or  inconvenience  to  the  military  forces  stationed 
thereon."  (2)  Or  he  can  abandon  to  the  Secretary  of  the  Interior, 
under  the  same  act,  the  strip  of  the  reservation  to  be  traversed  by  the 
road,  and  the  latter  official  can  then  authorize  the  road  under  section 
2477,  R.  S.,  by  which  ''rights  of  way  for  the  construction  of  highways 
are  granted  over  public  lands  not  reserved  for  public  uses."  P.  43, 
415,  Nov.,  1890. 

VI  D.  Questions  of  rights  to  the  use  of  water  in  States  and  Ter- 
ritories where  the  rainfall  is  not  sufficient  to  supply  the  land  with 
water  for  irrigation  are  determined  by  rules  not  found  in  the  common 
law.  In  England  and  generally  in  this  country  the  right  of  one  per- 
son to  conduct  water  over  the  land  of  another  is  an  interest  in  real 
estate  which  must  be  conveyed  by  deed.     In  districts  where  there  is 

1  See  United  States  v.  R.  R.  Bridge  Co.,  6  McLean,  517;  111.  Central  R.  R.  Co.  v. 
United  States,  20  Law  Rep.,  630;  6  Op.  Atty.  Gen.,  670;  16  id.,  114. 

2  Railway  Co.  v.  Ailing,  99  U.  S.,  468;  Onthank  v.  Railroad  Co.,  71  New  York,  196. 


PUBLIC   PROPERTY  VI  D  1.  945 

sullicient  rain  to  fertilize  the  land  there  is  no  reason  for  distinguish- 
ing this  interest  from  other  easements  in  the  soil.  In  regions  where 
the  fertility  of  the  soil  is  dependent  upon  irrigation  a  different  prin- 
ciple arises.  By  it  the  right  of  a  person,  who  can  not  otherwise 
secure  a  necessary  supply  of  water,  to  enter  the  land  of  another  for 
such  purpose,  is  recognized.*  The  use  of  this  right  is  secured  and 
regulated  by  statute  in  the  Western  States,  and  is  further  recognized 
by  Congress  in  the  act  of  March  3,  1891,  chapter  561,  sections  18-20, 
wnich  extends  to  individuals  and  associations  the  right  to  enter  the 
public  lands  and  reservations  of  the  United  States,  and  have  a  right 
of  way  upon  the  same  for  the  construction  of  irrigating  ditches.^ 
So,  held,  tnat  where  an  individual  had  constructed  such  a  ditch  over 
the  soil  of  a  military  reservation  in  Wyoming,  after  filing  the  map  of 
the  line  of  the  same  required  by  section  20  of  the  act,  his  use  of  the 
water  could  not  be  controlled  or  interrupted  by  the  military  author- 
ities so  long  as  he  did  not,  by  the  location  of  his  right  of  way,  ''inter- 
fore  with  the  proper  occupation"  of  the  reservation  by  the  Govern- 
ment (sec.  18  of  the  act).  R.  49,  97,  May,  1885;  P,  55,  268,  Sept. 
1892. 

VI  D  1.  By  sections  18  and  20  of  the  act  of  March  3,  1891  (26 
Stats.  1110-1112),  the  right  of  way  is  granted  across  the  public  lands 
and  reservations  of  the  United  States  for  the  construction  of  irri- 
gating ditches,  subject  to  the  approval  of  the  location  of  right  of  way 
across  a  reservation  by  the  department  of  the  Government  having 
jurisdiction  of  such  reservation.  Where  the  Secretary  of  War,  under 
this  statute,  approved  the  location  of  a  right  of  way  across  a  military 
reservation,  but  subject  to  certain  conditions  for  the  benefit  of  a 
third  party,  lield,  that  the  Secretary  of  War  was  without  authority  to 
compel  the  grantee  of  the  right  of  way  to  comply  with  the  conditions, 
or  to  deprive  him  or  his  assigns  of  such  right  of  way  on  account  of 
his  or  their  failure  to  comply  with  the  conditions.  C.  1063,  May, 
1S96;  13789,  Dec.  9,  1902. 

On  the  request  for  authority  to  construct  a  diversion  dam  and 
irrigation  ditch  on  the  military  reservation  of  Whipple  Barracks, 
Ariz.,  Jield,  that  the  act  of  February  15,  1901  (31  Stat.  790),  gives 
ample  authority  for  the  approval  of  any  permit  which  the  Secretary 
of  the  Interior  might  issue  for  the  proposed  work.  C.  28557,  June 
19,  1911. 

VI  p  2.  Held,  that  as  the  act  of  February  15,  1901  (31  Stat.  790), 
in  giving  the  Secretary  of  the  Interior  authority  to  permit  the  use  of 
rights  of  way  through. the  public  lands  and  reservations  of  the  United 
States  for  irrigation  purposes,  inter  alia,  expressly  provides  that  it 
shall  be  *'only  upon  the  approval  of  the  chief  officer  of  the  depart- 
ment under  whose  supervision  such  contract  or  reservation  falls," 
upon  the  acquisition  of  lands  for  the  Fort  Logan  Reservation,  Colo., 
no  right  of  way  could  be  thereafter  located  under  State  law,  but  only 
in  accordance  with  the  said  act  of  February  16,  1901.  C.  25616, 
Mar.  2,1911,  and  June  21, 1911.     Held,  however,  that  if  such  a  right 

^  Yunker  v.  Nichols,  1  Colo,,  551.  But,  it  seems,  that  in  the  absence  of  statute  the 
person  would  have  no  right  to  construct  a  ditch  on  the  lands  of  another  without  the 
owner's  consent.    Gould  on  Waters,  3d  edition,  sec.  233. 

2  As  to  the  operation  of  the  act  of  July  26,  1866,  and  other  prior  enactments  relating 
to  this  subject,  see  Broder  v.  Water  Company,  101  U.  S.,  274;  Sturr  v.  Beck,  133  id., 
541.    See,  also,  Gould  on  Waters,  3d  edition,  sec.  240,  and  authorities  cited. 

31106°— 12 60 


946  PUBLIC   PKOPEKTY  VI  E. 

of  way  had  been  located  under  license,  followed  by  actual  work  in 
enlarging  an  existing  ditch  or  making  a  new  one  prior  to  the  acquisi- 
tion of  the  property,  although  not  held  under  formal  conveyance, 
such  a  license  would  be  irrevocable  and  would  bind  the  property  in 
the  hands  of  the  United  States.^     C.  25616,  June  21,  1911. 

VI  E.  The  right  of  way  granted  to  the  Northern  Pacific  Railroad 
Company  by  section  2  of  the  act  of  July  2,  1864  (13  Stat.  367),  unlike 
the  grant  of  lands  by  section  3,  was  subject  to  no  exceptions  or  limi- 
tations. So,  held,  that  the  fact  that,  subsequently  to  the  date  of  the 
act,  the  President  reserved  land  on  the  line  of  the  railroad  for  mili- 
try  purposes,  before  the  company  had  definitely  fixed  its  line  and 
filed  its  maps,  did  not  affect  the  right  of  way  as  granted  by  the  act, 
and  that  such  way  was  not  interrupted  by  such  reservation.^  R.  19. 
357,  Oct,  1885. 

VIE  1.  The  act  of  September  10,  1888  (25  Stat.  473),  relating  to 
rights  of  way  of  railroads  through  water-reserve  lands  in  Wisconsin, 
confirms,  as  to  that  State,  the  rights  of  way  given  by  the  act  of  March 
3,  1875  (18  Stat.  511).  P.  32,  223,  May,  1889.  But  the  act  of  1888 
leaves  these  rights  still  subject  to  the  right  of  flowage,  which,  under  the 
authority  of  the  United  States,  may  need  to  be  resorted  to  in  connec- 
tion with  the  improvement  of  the  Mississippi  River,  and  subject  also 
to  the  condition  that  no  railroad  company  shall  take  material  for  con- 
struction from  the  water-reserve  lands  outside  the  right  of  way.  P. 
33,  489,  July,  1889.  Where  the  location  of  a  railroad  has  been 
approved  by  the  Secretary  of  the  Interior,  and  its  right  of  way  per- 
fected, under  the  act  of  1875,  it  is  not  required  that  there  should  be  a 
reapproval  by  the  Secretary  of  War  under  the  act  of  1888.  P.  31, 
352,  Apr.  1889;  33,  156,  June,  1889.  An  approval  by  the  Secretary 
of  War,  under  the  act  of  1888,  of  the  location  of  a  right  of  way  for  a 
certain  railroad,  not  recommended  until  the  company  file  with  their 
application  a  perfect  profile  and  full  and  minute  description  of  the 
proposed  line.    P.  29,  253,  Jan.,  1889. 

VII  A  1.  Where  a  lease  made  to  the  United  States,  of  land  to  be 
used  for  public  purposes,  contained  no  stipulation  other  than  one  for 
the  payment  of  certain  rent,  held  that  such  lease  was  not  annulled  by 
transfer  under  section  3737,  R.  S.,  but  was  legally  assignable.  The 
case  is  deemed  to  be  governed  by  the  ruHng  of  the  Supreme  Court  in 
Freedman's  Saving  Co.  v.  Shepherd,^  to  the  effect  that  section  3737 
did  not  apply  to  a  lease  so  made,  ''under  which  the  lessor  is  not 
required  to  perform  any  service  for  the  Government,  and  has  nothing 
to  do  in  respect  to  the  lease  except  to  receive  from  time  to  time  the 
rent  agreed  to  be  paid."  P.  43,  175,  Oct.,  1890;  C.  18707,  Oct.  12, 
1905;  20350,  Sept.  10, 1906. 

VII  A  2.  The  United  States,  being  tenant  of  land  leased  for  military 
purposes  at  Fort  Davis,  Tex.,  erected  buildings  thereon  for  the  pur- 
poses of  a  military  post.     In  view  of  the  fact  that  the  relation  was  ■ 
that  of  landlord  and  tenant;  that  the  buildings  were  erected  for  a  I 
purpose  analogous  to  that  of  trade,  and  for  a  public  use;  and  that  in 
their  erection  there  could  certainly  have  been  no  intention  to  benefit 

1  Gould  on  Waters,  3d  edition,  sec.  323;  Yunker  v.  Nicholls,  1  Colo.,  551,  554. 
De  Graffenried  v.  Savage,  9  Colo.  Ap.,  131;  47  Pac.  Rep.,  902. 

2  See  Railroad  Co.  v.  Baldwin,  103  U.  S.,  426;  18  Op.  Atty.  Gen.,  357. 
3127  U.  S.,  494;  IV  Comp.  Dec,  43. 


PUBLIC   PROPERTY  VII  A3.  947 

the  inheritance  or  add  to  the  freehold — held  that  such  buildings  were 
to  be  regarded  not  as  fixtures,  but  as  personal  property/  and  remov- 
able by  the  tenant  at  any  time  before  the  expiration  of  his  lease. ^ 
Shoukl  the  Government  sell  the  buildings  standing,  the  purchaser 
would  have  the  same  right  of  disposition  as  the  United  States  and  no 
more.  He  would  therefore  be  obhged  to  remove  them  before  the  ter- 
mination of  the  lease,  unless  otherwise  permitted  by  the  owner  of  the 
premises.  P.  Ji7,  71,  May,  1891.  And  held  similarly  of  like  buildings 
erected  at  Fort  Union,  N.  Mex.,  where  the  United  States  was  tenant 
at  will;  the  buildings  not  being  intended  as  improvements,  but  merely 
for  the  use  of  the  troops.     P.  ^7, 138,  May,  1891 . 

VII  A3.  The  word  ''month"  in  a  lease,  in  the  absence  of  an  ex- 
pressed intention  to  the  contrary,  means  a  '' calendar  month,"  and  a 
''calendar  month"  means  a  month  as  expressed  in  the  calendar,  i.  e., 
the  actual  number  of  days  in  the  month  is  to  be  counted.*     G.  25340, 
July,  1909. 

VII  A  4.  Where  land  was  leased  by  the  United  States  for  a  target 
range  in  the  State  of  Texas  and  the  lease  contained  a  covenant  for 
renewal  at  the  end  of  the  year  at  the  option  of  the  United  States,  held 
that  unless  the  lease  were  acknowledged  (or  proved)  and  recorded  as 
provided  by  the  statutes  of  Texas,  such  covenant  would  not  be  bind- 
mg  upon  a  purchaser  for  value  without  notice  thereof.  G.  2439, 
July,  1896. 

VII A  5.  Held,  in  view  of  section  3744  R.  S.,  that  a  written  notice 
of  the  intention  to  renew  the  lease,  with  the  acceptance  of  the  lessor 
indorsed  thereon,  would  not  be  sufficient,  but  that  a  brief  formal 
contract,  referring  to  the  original  lease  in  such  a  way  as  to  identify 
it,  and  signed  with  the  names  of  the  parties  at  the  end  thereof,  would 
meet  the  requirements  of  the  statute.  G.  7214,  Oct.  27,  1899.  Also 
held,  where  the  lessor  refused  to  renew  the  lease  on  the  ground  of 
misapprehension,  that  in  the  absence  of  fraud  on  the  part  of  the 
contracting  officer  this  would  not  relieve  him  from  his  obligation, 
and  advised  that  in  case  of  his  continued  refusal  suit  be  brought  for 
specific  performance.     G.  10768,  July  1,  1902. 

VII  A  6.  Where  the  United  States  continued  in  possession  of  leased 
land  after  the  expiration  of  the  term,  paying  the  rental  quarterly  as 
provided  in  the  lease,  held  that  from  such  possession,  and  the  accept- 
ance of  rent  by  the  lessor,  a  tenancy  from  year  to  year  was  created.* 
G.  7490,  Jan.  3,  1900. 

VII  A  7.  Where  rent  was  due  by  the  United  States  for  the  occu- 
pation of  a  house  which  it  had  leased  for  a  recruiting  rendezvous, 
and  the  title  to  the  premises  was  claimed  both  by  the  lessor  and 
another  person  as  parties  to  a  pending  suit  in  a  court  of  chancery, 
advised  that  if  the  rights  of  the  parties  to  the  rent  were  so  involved 
in  the  litigation  as  to  enable  the  United  States  to  pay  the  amount  of 

»  Van  Ness  v.  Pacard,  2  Peters,  141;  King  v.  Wilcomb,  7  Barb.,  263;  Hutchins  v. 
Masterson,  46  Texas,  555;  Moody  v.  Aiken,  50  Texas,  65;  Conrad  v.  Saginaw  Mining 
Co.,  54  Mich.,  249;  Meigs'  Appeal,  62  Pa.  St.,  28. 

2  Sumner  v.  Tileston,  4  Pick.,  307;  Griffin  v.  Ransdell,  71  Ind.,  441;  18  Op.  Atty. 
Gen.,  270;  Taylor's  Landlord  and  Tenant,  433.  But  such  buildings  could  not  be 
sold  without  the  authority  of  Congress.     20  Op.  Atty.  Gen.,  284. 

3  See  XI  Comp.  Dec,  494. 

*  Ryder  i;.  Jenvy,  2  Robertson  (N.  Y.),  56;  Holseman  v.  Abrams,  2  Duer  (N.  Y.),  435 ; 
Wood's  Landlord  and  Tenant,  pp.  76-84. 


948  PUBLIC   PROPEKTY  VII   B   1   a. 

the  rent  into  court  and  receive  an  acquittance  tiierefor,  this  coui'se 
woukl  properly  be  pursued;  otherwise  that  the  payment  should  be 
withheld  entirely  until  the  question  of  title  be  determined  and  the 
United  States  be  enabled  to  receive  a  final  receipt  from  one  of  the 
parties  or  both  jointly.     P.  64,  15,  300,  Feb.  and  Apr.,  1894. 

VII B  1  a.  By  the  river  and  harbor  act  of  August  5, 1886,  the  United 
States  formally  accepted  from  the  State  of  Ohio  the  Muskingum  River 
Improvement,  with  all  its  franchises,  appurtenances,  water  rights,  &c., 
subject  to  any  existing  leases  of  water  rights  under  leases  granted  by 
the  State.  _  The  State,  by  its  official  representative,  had  made  a  lease 
to  certain  individuals  which  contained  a  clause  providing  for  a  for- 
feiture of  the  lease  in  case  of  an  assignment  without  the  sanction  of  the 
lessor.  The  lease  was  assigned  to  a  third  party  without  any  formal 
sanction  or  concurrence  on  the  part  of  the  lessor,  but  the  lessor,  sub- 
sequently to  the  assignment,  accepted  rents  from  the  assignee.  Held 
that  such  acceptance  amounted  to  an  absolute  waiver  of  the  forfeiture 
clause,  and  made  the  lease  valid  in  the  hands  of  the  assignee,  investing 
him  with  all  the  rights  of  the  original  lessees,^  and  was  therefore  bind- 
ing upon  the  United  States  under  the  reservation  of  the  act.  P.  22, 
45,  Jan.,  1888. 

VII  B  1  b.  The  act  of  Congress  approved  August  11, 1888  (25  Stat. 
417),  authorized  the  Secretary  of  War  ''to  grant  leases  or  licenses  for 
the  use  of  the  water  powers  on  the  Muskingum  River  at  such  rate  and 
on  such  conditions  and  for  such  periods  of  time  as  may  seem  to  him 
just,  equitable,  and  expedient  *  *  *  and  *  *  *  to  grant 
leases  or  licenses  for  the  occupation  of  such  lands  belonging  to  the 
United  States  on  said  Muskingum  River  as  may  be  required  for  mill 
sites  or  for  other  purposes  not  inconsistent  with  the  requirements  of 
navigation."  Under  this  statute  two  leases  for  periods  of  20  years 
each  were  granted,  but  neither  provided  for  a  forfeiture  of  the  term  for 
nonpayment  of  rent.  Held,  therefore,  that  the  Secretary  of  War 
could  not  terminate  them  on  account  of  nonpayment  of  rentf  and 
advised  that  the  proper  way  to  terminate  them  would  be  to  have  the 
lessees  execute  instruments  surrendering  their  terms.  C.  2096,  Mar., 
1896;  3242,  Jan.,  1900. 

VII  B  2  a.  Under  the  act  of  Congress  approved  July  28,  1892  (27 
Stat.  321),  the  Secretary  of  War  has  authority,  when  in  his  discretion 
it  will  be  for  the  public  good,  to  lease  for  a  period  not  exceeding  five 
years  and  revocable  at  any  time  such  property  of  the  United  States 
under  his  control  as  may  not  for  the  time  be  required  for  public  use, 
and  for  the  leasing  of  wliich  there  is  no  authority  under  existing  law, 
pro^dded  that  nothing  in  the  act  should  be  held  to  apply  to  mineral  or 
phosphate  lands.  Under  this  act  revocable  leases  nave  been  granted 
m  a  number  of  instances.  C.  851,  Jan.  and  Apr.,  1895;  1790,  Nov., 
1895;  2102,  Mar.  and  Oct.,  1896;  4IOO,  May,  1898.  In  practice  the 
leases  or  assignments  thereof  are  required  to  be  in  duplicate.  C.  178, 
179,  Aug.,  1894;  414,  Oct.,  1894.  Under  the  express  terms  of  the 
act  the  Secretary  of  War  has  no  authority  to  lease  mineral  or  phos- 
phate lands.  C.  3619,  Nov.,  1897;  6389,  6721,  May  and  July,  1899. 
Held,  in  view  of  the  express  prohibition  contained  in  the  act  of  July 

^  Taylor's  Landlord  and  Tenant,  sec.  497. 

2  Taylor's  Landlord  and  Tenant,  8th  ed.,  sec.  489;  Am.  and  Eng.  Ency.  of  Law 
(Ist  ed.),  vol.  12,  p.  758^. 


PUBLIC  PROPERTY  VTI  B  2  b.  949 

28,  1892,  against  the  leasing  of  mineral  or  phosphate  lands,  that  the 
Secretary  of  War  could  not  grant  permission  to  locate  and  work 
mineral  claims  on  a  military  reservation  either  by  lease  or  Hcense. 
a  7281,  Nov.,  1899;  9722,  Jan.  29,  1901;  10720,  June  26,  1901; 
10727,  June  22,  1901;  11886,  Jan.  13,  1902;  19020,  Jan.  5,  1906; 
19254,  Feb.  27,  1906.  Also  held  that  the  term  ''mineral  lands" 
should  be  construed,  with  reference  to  other  statutes  relating  to  the 
public  lands,  as  including  lands  chiefly  valuable  for  building  stone.* 
C.  27025,  July  23,  1910.  In  a  certain  class  of  cases,  to  wit,  wliere  the 
parties  apphed  for  permission  to  construct  certain  buildings  upon 
reservations  and  to  Duild  docfe  in  a  Government  harbor,  revocable 
leases  were  granted  in  Heu  of  licenses.^  C.  3350,  3356,  3378,  July, 
1897;  5926,  Feb.  27,  1899;  18942,  Dec.  12,  1905;  19254,  Feb.  26, 
1906;  20350,  Sept.  10,  1906. 

Also  held  that  a  quartermaster's  dock  comes  within  the  purview  of 
the  act  of  July  28,  1892,  and  may  be  leased.     C.  12980,  July  17, 1902. 

VII  B  2  b.  As  there  is  no  law  requiring  the  Secretary  of  War  to 
call  for  bids  in  leasing  property  unaer  the  act  of  July  28,  1892,  the 
amount  for  which  it  shall  oe  leased  rests  in  his  discretion.  0.  273, 
Sept.,  1894. 

VII  B  2  0.  The  Secretary  of  War  leased  a  part  of  a  military  reser- 
vation, the  rent  to  be  paid  monthly  during  the  continuance  of  the 
lease.  The  lease  provided  that  the  term  should  be  three  years  from 
the  12th  day  of  July,  1894,  but  it  was  not  in  fact  executed  by  the 
Secretary  until  September  12,  1894.  The  lessee  entered  upon  the 
reservation  about  the  latter  date  and  vacated  the  same  on  July  12, 
1897,  the  date  of  the  termination  of  the  lease.  Held  that  in  point  of 
computation  the  three  years'  term  dated  from  July  12,  1894,  but  that 
in  point  of  interest  the  lease  took  effect  only  from  the  delivery  of  the 
instrument,  and  that  therefore  rent  could  be  collected  for  only  about 
2  3^ears  and  10  months.^  C.  273,  July  and  Oct,  1897;  11195,  Apr.  16, 
1902. 

VII  B  2  d.  Where  property  was  leased,  under  the  act  of  July  28, 
1892,  and  the  lessee  requested  to  be  relieved  from  the  payment  of 
further  rent,  held  that  as  the  lease  was  revocable  the  Secretary  of 
War  could  have  terminated  it  at  the  expiration  of  any  period  for 
which  rent  had  been  paid,  and  advised  that  the  lease  be  regarded  as 
terminated  on  payment  of  rent  up  to  the  time  when  the  premises 
were  no  longer  held  by  the  lessee.     C.  11731,  Dec.  10,  1901. 

VII  B  2  e.  The  act  of  July  28,  1892,  c.  316,  authorizes  the  Secretary 
of  War,  in  his  discretion,  to  ''lease  for  a  period  not  exceeding  five 
years,  and  revocable  at  any  time,  such  property  of  the  United  States 
under  his  control  as  may  not  for  the  time  be  required  for  public  use," 
such  leases  to  be  "reported  annually  to  Congress";  but  does  not 
prescribe  as  to  the  disposition  of  the  moneys  received  as  rents. 
Section  3621,  R.  S.,  provides  for  the  disposition  of  public  moneys 
coming  into  the  possession  of  any  person,  and  paragraph  698,  Army 
Regulations  (1889),  directs  that  "the  face  of  the  certificate  or  receipt" 
shall  "show  to  what  appropriation"  the  funds  belong.  Advised  that 
it  would  be  sufficient  for  any  post  quartermaster  or  other  disbursing 

1  Northern  Pacific  Ry.  Co.  v.  Soderber?,  188  U.  S.,  526. 

2  See  Op.  Atty.  Gen.  of  May  19  and  July  7,  1897,  21  Op.,  537,  565. 
^  See  Taylor's  Landlord  and  Tenant,  eighth  ed.,  sec.  70. 


950  PUBLIC   PROPERTY  VIIT. 

officer  into  whose  hands  such  rents  should  come  to  note  the  character 
of  the  payment  upon  his  certificate,  leaving  it  to  the  War  Department 
to  report  the  same  in  the  aggregate  to  Congress  at  the  end  of  each 
year.     P.  59,  369,  May,  1893. 

VIII.  It  is  impracticable  for  Congress  to  provide  by  legislation  for 
every  case  in  which  a  license  may  be  granted,  because  unforeseen 
necessities  for  permissions  of  various  kinds,  often  needing  immediate 
action,  spring  up,  and  these  can  only  be  met  by  an  exercise  of  the 
power  of  the  Executive.  These  permissions  are  not  always  granted 
by  formal  written  licenses.  They  may  not  be  reduced  to  writing  at 
all,  but  may  be  entirely  informal,  oral  permissions  to  do  acts  which 
would  otherwise  constitute  trespasses.  Such  permissions  are  in  effect 
and  substance  revocable  licenses,  just  as  much  as  those  expressed  in 
a  written  instrument.  Indeed,  the  great  mass  of  licenses  to  do  acts 
of  various  kinds  on  military  reservations  are  informal  permissions  of 
this  character.  Whether  it  be  to  enjoy  some  continuous  privilege  or 
to  do  a  single  act,  makes  no  difference.  All  are  in  effect  revocable 
licenses,  emanating  from  the  same  authority.  And  the  only  advan- 
tage of  the  revocable  license  by  written  instrument  is  that  it  is  the 
most  convenient  evidence  of  the  permission.  Many  acts  are,  however, 
such  that  it  would  be  absurd  to  resort  to  written  instruments  for  the 
purpose  of  granting  permission  to  do  them.  They  are  simply  orally 
authorized  or  silently  permitted,  the  authority  being  the  authority  of 
the  President  executed  through  the  commanding  officer  of  the  post. 
At  every  large  post  there  are,  no  doubt,  a  number  of  such  acts  done 
daily  by  the  authority  of  these  unwritten  permissions,  or  unwritten 
revocable  licenses.  The  power  of  the  President  probably  does  not 
extend  to  the  granting  of  licenses  for  the  doing  of  anything  which 
would  be  an  injury  to  the  property,  nor  can  he  grant  other  than 
revocable  permissions,  but  there  appear  to  be  no  other  restrictions. 
He  can  not  grant  licenses  that  are  not  revocable.  The  power  is  one 
to  be  exercised  by  the  President  at  his  discretion,  subject  only  to  the 
restrictions  mentioned,  and  of  course  to  such  other  restrictions  as 
may  be  imposed  by  or  be  the  result  of  acts  of  Congress.  The  act  of 
July  28,  1892,  authorizing  the  Secretary  of  War  to  grant  leases,  seems 
to  have  been  intended  as  an  extension,  certainly  not  as  a  restriction, 
of  his  power.  It  is  inapplicable  to  the  purposes  for  which  revocable 
licenses  are  used.  And  the  sixth  section  of  the  act  of  July  5,  1884, 
(23  Stat.  103)  'Ho  provide  for  the  disposal  of  abandoned  and  useless 
military  reservations,"  authorizing  the  Secretary  of  War  to  permit 
the  extension  of  roads  across  military  reservations,  the  landing  of 
ferries  and  the  erection  of  bridges  thereon,  and  to  permit  cattle  to  be 
driven  across  them,  was  apparently  intended  to  confer  power  on  him 
to  grant  more  permanent  privileges  than  revocable  licenses  give.  A 
license  is  a  bare  authority  to  do  a  certain  act  or  series  of  acts  upon  the 
land  of  the  licensor  without  possessing  or  acquiring  any  estate  therein. 
The  Judge  Advocate  General's  Office  has  always  held  that  the  Secre- 
tary of  War  may,  by  revocable  license,  permit  a  temporary  use, 
terminable  at  his  discretion,  as  the  public  interests  may  require,  of 
United  States  lands  under  his  control,  provided  such  license  conveys 
no  usufructuary  interest  in  the  land,  and  such  use  does  not  conffict 
with  the  purpose  for  which  the  land  is  held.  The  word  license,  as 
apj)lied  to  real  property,  imports  an  authority  to  do  some  act  or 
series  of  acts  upon  the  land  of  another.     It  passes  no  interest  in  the 


PUBLIC  PROPERTY  VIII.  951 

land  itself  and  its  only  effect  is  to  legalize  an  act  which  in  the  absence 
of  the  license  would  constitute  a  trespass.  It  may  be  created  by 
parol,  although  a  writing  defining  the  exact  nature  and  scope  of  the 
license  is  preferable.^  In  1891,  the  Secretary  of  War  decided  that 
military  reservations  and  lands  occupied  by  the  War  Department  are 
held  and  occupied  for  military  purposes  only,  and  that  no  licenses  for 
their  use  or  occupation  would  be  given  without  authority  from  Con- 
gress, unless  sucn  use  or  occupation  would  be  of  some  benefit  to  the 
military  service.  (Circ.  12,  A.  G.  O.,  1891.)  It  will  be  noticed  that 
this  is  merely  the  announcement  of  a  policy,  and  not  the  denial  of  the 
existence  of  the  power.  And,  as  a  matter  of  fact,  the  policy  thus 
declared  was  not  carried  out.  In  practice  it  is  fully  recognized  that 
the  Secretary  of  War  may  thus  license  any  act  which  would  not  be  an 
injury  to  the  property  nor  conflict  with  the  purpose  for  which  it.  is 
held.  This  is  giving  a  reasonable  application  to  the  rule  against  the 
granting  of  usufructuary  interests  or  permission  to  commit  waste. 
So  far  as  the  ^  'sectarian  purpose"  for  which  a  license  may  be  required, 
is  concerned,  it  is  evident  that  such  purpose  does  not  affect  the  power 
to  grant  the  hcense  but  the  policy  of  granting  it  only.  In  the  absence 
of  action  by  Congress,  the  exercise  of  the  power  rests  in  the  discretion 
of  the  President,  and  the  purpose  can  be  no  restriction  on  his  dis- 
cretion, except  in  so  far  that  it  must  not  be  incompatible  with — that 
is,  an  interference  with  or  an  obstruction  to — the  general  use  for  which 
the  land  is  held.^  C.  2961,  Feb.,  1897;  8360,  May  18,  1900;  10624, 
June  11  and  Aug.  27,  1901;  292^7,  Nov.  17,  1911. 

^  Rice  on  Real  Property,  p.  505. 

2  Under  date  of  Aug.  4,  1890,  the  Attorney  General  (19  Op.  628)  said: 

**It  has  been  the  practice  for  many  years  for  the  Secretary  of  War,  and  sometimes 
the  President,  *  *  *  to  grant  revocable  licenses  to  individuals  to  enter  upon 
military  reservations  and  prosecute  undertakings  there  which  may  be  beneficial  to 
the  military  branch  of  the  public  service  as  well  as  advantageous  to  the  licensees. 

"For  many  years  a  part  of  the  tracks  of  the  Baltimore  &  Ohio  Railroad  Co.  was 
laid  by  a  revocable  license  on  a  part  of  the  land  at  Harpers  Ferry  used  by  the 
United  States  for  a  manufactory  of  arms.  Under  a  similar  license  a  part  of  tha  land 
belonging  to  the  fort  at  Old  Point  Comfort  was  allowed  to  be  used  as  a  site  for  a  hotel, 
and  in  1864  President  Lincoln  gave  a  license  of  this  kind  to  a  railroad  company  to 
use  a  part  of  the  Government  land  at  Sandy  Hook,  and  in  1869  another  license  was 
granted  to  said  company  to  use  part  of  the  same  land  'so  long  as  it  may  be  consid- 
ered expedient  and  for  the  public  interest  by  the  Secretary  of  War,  or  other  proper 
officer  of  the  Government,  in  charge  of  the  United  States  lands  at  Sandy  Hook.' 
(See  16  Op.  212.) 

"In  this  case  the  license  applied  for  [to  construct  an  irrigating  ditch]  relates  to  a 
military  reservation  situated  in  an  arid  region,  and  therefore,  in  view  of  the  advantage 
to  Fort  Selden  of  the  use  of  this  water,  and  in  view  of  the  frequent  exercise  of  a 
similar  power  by  granting  £uch  licenses  as  occasions  have  arisen  through  so  many 
years,  it  seems  clear  that  such  license  may  be  granted,  the  same  to  be  under  well 
considered  restrictions  and  revocable  at  the  will  and  pleasure  of  the  Secretary  of  War." 

See  also  opinion  of  Attorney  General  Griggs  (XXII  Ops.,  245),  where  it  is  said: 

"The  long-continued  exercise  of  a  power  of  this  kind  by  the  Secretary  of  War,  and 
the  open  and  notorious  use  of  Government  reservations  by  such  licensees  without  legis- 
lative objection  from  Congress,  and  with  the  adoption  of  no  legislative  rules  upon  the 
subject,  implies  the  tacit  assent  of  Congress  to  this  custom.  At  the  same  time,  I  deem 
it  proper  to  call  your  attention  to  the  fact  that  this  custom  can  not  be  maintained  upon 
any  grounds  except  the  benefit  of  the  public  interests,  either  directly  or  indirectly. 
It  can  not  be  used  as  a  basis  for  granting,  under  the  guise  of  a  temporary  license,  a 
substantially  permanent  right  to  maintain  a  railroad." 

The  practice  above  referred  to  appears  to  have  since  obtained,  except  in  the  class 
of  cases  covered  by  the  later  opinions  of  the  Attorney  General  of  May  19  and  July  7, 
1897  (21  Op.,  537,  565).  For  a  published  list  of  the  revocable  licenses  granted  by 
the  Secretary  of  War  between  Jan.  1, 1893,  and  Jan.  1,  1897,  and  of  revocable  leases 


952  PUBLIC  PROPERTY  VITI  A. 

VIII  A.  A  license  is  defined  as  a  bare  authority  to  do  a  certain  act  or 
series  of  acts  upon  the  land  of  the  licensor  without  possessing  or 
acquiring  any  estate  therein.^  R.  50,  619,  Aug.,  1886.  The  Secre- 
tary of  War  may,  by  revocable  license,  i)ermit  a  temporary  use, 
terminable  at  his  discretion,  as  the  public  interests  may  require,  of 
United  States  lands  under  his  control,  provided  such  license  conveys 
no  usufructuary  interest  in  the  land,^  and  such  use  does  not  conflict 
with  the  purpose  for  which  the  land  is  held.  R.  49,  4^0,  Nov.,  1885; 
C.  285,  Sept.,  1894;  2961,  Feb.,  1897.  The  Secretary  of  War  may 
grant  to  a  civilian,  not  a  Government  employee,  a  revocable  license 
to  reside  and  do  business  on  a  military  reservation.  C.  304, 3^^^,  Sept., 
1894'  -A.  formal  acceptance  of  a  license  is  not  in  general  necessary; 
the  grantee,  by  acting  under  it,  sufficiently  indicates  its  acceptance. 
P.  59,  418,  May,  1893;  C.  155,  Dec,  1894;  639,  Mar.,  1895;  10624, 
June  7, 1901;  12995,  July  23,  1902. 

VIII  A  1 .  An  instrument  termed  a  revocable  license,  but  which  in 
effect  is  a  grant  of  an  interest,  is  in  excess  of  executive  authority  and 
inoperative.  Thus  an  executive  permit  to  erect  upon  United  States 
land  a  building  amounting  to  a  permanent  improvement  to  be  used 
and  occupied,  or  disposed  of,  by  the  licensee  at  his  discretion  as  his 
property,  is  not  a  legitimate  revocable  license ;  is  in  fact  (or,  if  valid, 
would  be)  irrevocable  as  conveying  a  usufructuary  interest.^  P.  38, 
49,  Jan.,  1890;  56,  366,  Nov.,  1892;  C.  3293,  June  17,  1897;  6960,  Aug, 
31, 1899;  10766,  June  27,  1906;  18273,  July  11, 1905;  22340,  Nov,  14, 
1907,  Mar.  15  and  Apr.  17,  1908;  22600,  Jan.  10,  1908.  So,  a  so- 
called  revocable  license  to  reside  upon  and  cultivate  certain  land 
of  the  United  States  at  a  fixed  rental  named,  held  really  a  lease  at  will, 
conveying  a  usufructuary  interest  and  not  legal  in  the  absence  of 
authority  from  Congress.     P.  54,  212,  June,  1892. 

VIII  A  2.  A  license  does  not  justify  any  use  of  the  property  other 
than  as  specified  in  the  grant.  It  is  therefore  not  assignable.  R.  55, 
603,  June,  1888;  C.  639,  Nov.,  1894;  1155,  Dec,  1895.  And  a  trans- 
fer of  it  avoids  the  license.  P.  42,  456,  Sept.,  1890.  Thus  held  that 
an  assignment  to  another,  by  the  holder  of  a  license  to  erect  a  hotel  on 
the  military  reservation  of  Fort  Monroe,  was  legally  inoperative  and 
an  avoidance  of  the  license.     P.  44)  225,  Dec,  1890. 

VIII  A  2  a.  Where  a  joint  resolution  of  Congress  authorized  the 
Secretary  of  War  to  grant  an  Army  and  Navy  contractor  at  Fort 
Monroe  ''permission  to  rebuild"  at  that  post  a  storehouse  ''upon 
such  conditions  and  under  such  restrictions  as  the  Secretary  of  War 
shall  deem  compatible  with  the  interests  of  the  Government,"  it  was 
held  that  the  resolution  only  authorized  the  Secretary  of  War  to  grant 
a  license  to  build  on  and  use  lands  of  the  United  States  and  did  not 
authorize  him  to  grant  an  interest  in  the  same.     So  the  license  thus 

granted  during  the  same  period  under  the  act  of  July  28,  1892,  see  public  document 
(not  numbered),  described  as  follows:  "Granting  permits  for  the  occupancy  or  use 
of  military  reservations  for  nonmilitary  purposes  (H.  Res.  250,  54th  Cong.,  2d  sess.,  in 
the  House  of  Representatives,  Feb.  8,  1897)." 

Permission  to  land  ferries  and  to  erect  bridges  on  military  reservations  and  to  drive 
cattle,  sheep,  or  other  stock  animals  across  the  same,  is  granted  by  the  Secretary  of 
War  under  sec.  6  of  the  act  of  Congress  approved  July  5,  1884. 

^  Angel  1  on  Watercourses,  457. 

2  A  license  confers  "no  interest  whatever  in  the  land  itself."  16  Op.  Atty.  Gen., 
212.     See  also  19  id.,  628. 

3  See  21  Op.  Atty.  Gen.,  541. 


PTJBLIC  PROPP.TtTY  Vlll  A  3.  953 

granted  not  being  assignable,  advised  that  in  lieu  of  the  approval  of  a 
proposed  transfer  thereof  a  revocable  license  bo  issued  to  the  trans- 
feree.    C.  639,  Nov.,  1894. 

VIII  A  3.  A  license  to  go  upon  land  of  the  United  States  will  not 
authorize  the  licensee  to  take  pubhc  property  therefrom.  Held  that 
the  Secretary  of  War  was  not  empowereci  to  grant  a  revocable  license 
allowing  the  licensee  to  gather  the  fruit  from  trees  growing  upon 
Government  land,  such  fruit  being  pubUc  property,  disposable  only 
by  Congress.    P.  66,  134,  Oct.,  1892;  C.  18389,  Aua.  5,  1905, 

VIII  A  4.  The  city  of  Miles  City,  Mont.,  applied  to  the  Secretary 
of  War  for  permission  to  enter  upon  the  Fort  Keogh  Military  Reserva- 
tion and  make  cuts  for  the  purpose  of  straightening  the  channel  of 
Tongue  River,  forming  the  boundary  of  the  reservation,  so  as  to  pre- 
vent its  encroaching  upon  the  city.  The  proposed  work  would  prob- 
ably throw  175  acres  of  the  reservation  to  the  opposite  side  of  the  new 
channel,  thus  resulting  in  a  permanent  change  and  perhaps  in  perma- 
nent damage  to  the  reservation.  Held  that  the  Secretary  of  War 
would  not  be  empowered  to  grant  a  license  in  such  a  case,  and  that 
Congress  alone  could  authorize  the  use  of  the  land  and  operations 
designed.    P.  D,  3,  Aug.,  1892. 

VIII  A  4  a.  Held  that  the  Secretary  of  War  is  without  authority  to 
license  the  commission  of  waste  upon  military  reservations,  or  under 
the  act  of  July  28,  1892,  to  lease  them  for  a  purpose  which  would 
amount  to  waste;  but  the  rule  here  stated  has  not  been  strictly 
observed  in  practice.  C.  2879,  2930,  Feb.,  1897;  3619,  Nov.,  1897; 
4126,  May,  1898;  7900,  Apr.,  1900.  Held,  therefore,  that  a  license 
to  take  earth  from  a  mihtary  reservation  to  be  used  in  the  manufac- 
ture of  brick  would  be  of  doubtful  vahdity.  C.  4^^^,  ^(^V,  1898. 
7900,  Apr.,  1900;  8I4I,  May,  1900;  11131,  Oct.,  1901;  16827,  Aug, 
31,  1904;  27798,  Feb.  and  Mar.,  1911. 

VIII  A  4  h.  Held  that  the  act  of  July  28,  1892  (27  Stat.  321),  in 
excepting  '^ mineral  or  phosphate  lands''  from  the  authority  therein 
given  to  lease  such  lands  ' '  as  may  not  for  the  time  be  required  for  the 
public  use,"  should  be  regarded  as  withholding  from  the  Secretary 
of  War  authority  to  permit  of  the  use  of  such  lands  under  revocable 
license.  C.  29247,  Nov.  18, 1911.  Where,  however,  a  valid  location 
of  a  mining  claim  was  made  prior  to  the  order  declaring  the  reserva- 
tion, held  that  the  working  of  the  claim  should  be  permitted.  C. 
28627,  Sept.  1,  1911.  Also  Jield  that  permission  may  be  given  for 
dredging  the  channel  of  a  creek  within  a  reservation  for  the  improve- 
ment of  navigation  without  regard  to  the  fact  that  gold  may  be 
obtained  in  the  process  of  dredging.  C.  25094,  June  11,  1909,  and 
Mar.  11,  1911. 

VIII  A  4  0.  In  an  opinion  dated  May  19,  1897,  the  Attorney  Gen- 
eral held  with  reference  to  the  license  for  the  construction  of  a  Roman 
Catholic  chapel  on  the  West  Point  reservation,  that  the  Secretary  of 
War  had  no  authority  to  grant  it.  He  also  held  in  an  opinion,  dated 
July  7,  1897,  that  the  Secretary  of  War  had  no  authority  to  grant 
permission  for  the  erection  of  a  Bethel  reading  room  and  library 
within  the  military  reservation  on  Ship  Island,  Miss.*  By  act  of 
July  8,  1898  (30  Stat.  722),  the  Secretary  of  War  was  given  authority 
to  permit  the  erection  of  buildings  for  religious  purposes  on  the  West 

»210p.  Atty.  Gen.,  537,  565. 


954  PUBLIC  PROPERTY  VTII  A  4  d. 

Point  reservation,  but  no  such  authority  has  been  given  with  refer- 
ence to  other  military  reservations.  Advised  that  under  the  opinions 
of  the  Attorney  General  above  cited  the  Secretary  of  War  was  with- 
out authority  to  license  the  construction  of  a  building  for  a  Roman 
Catholic  chapel  on  the  Fort  Hancock  Military  Reservation.  C.  6960, 
Aug.,  1899.  Similarly  advised  with  respect  to  an  application  for 
license  to  erect  on  the  same  reservation  a  building  to  be  used  exclu- 
sively for  Union  Protestant  worship.  C.  4974,  Sept.,  1898;  18273, 
July  12,  1905;  20173,  Aug.  6,  1906.  Also  with  respect  to  an  appli- 
cation for  a  license  for  a  proposed  Young  Men's  Christian  Association 
building  on  the  Fort  Hancock  Military  Reservation.  C.  10766,  July 
10,  1901.  After  the  passage  of  the  act  of  May  31,  1902  (32  Stat., 
262),  authorizing  the  Secretary  of  War  to  license  the  construction, 
by  the  Young  Men's  Christian  Association,  of  such  buildings  as  their 
work  for  the  promotion  of  the  '^  welfare  of  the  garrisons  may  require,'* 
held  that  this  authority,  should  be  regarded  as  giving  the  assent  of 
Congress  to  the  construction  of  buildings  for  strictly  nonsectarian 
uses,  for  the  purposes  specified  in  the  statute,  although  not  constructed 
b;^  the  particular  body  named  in  the  statute;  and  that  a  license 
might  be  given  for  the  construction  of  a  chapel  at  Fort  Sam  Houston, 
Tex.,  as  a  place  of  worship  for  all  denominations.  C.  18273,  July  12. 
1905. 

On  the  application  of  a  railway  company  for  permission  to  con- 
struct a  railway  tunnel  under  Fort  Mason,  Cal.,  iield  that  the  char- 
acter of  the  improvement  and  the  purpose  for  which  it  was  desired 
were  inconsistent  with  the  nature  of  revocable  license.  C.  216 19 j 
June  13,  1907.  Similarly  held  with  respect  to  the  application  for  a 
license  for  a  tunnel  for  sewer  outlet  across  the  reservation  of  Fort 
Lawton,  Wash.     C.  21851,  July  26,  1907. 

VIII  A  4  d.  Licenses  to  enter  upon  and  use  lands  of  the  United 
States  have  generally  been  guarded  with  such  conditions  as  to  pre- 
vent any  permanent  injury  to  Government  property.  Held  that  a 
revocable  license  might  be  given  to  a  farmer  to  use  for  irrigation  the 
water  flowing  on  a  reservation  and  not  needed  for  the  purposes  of 
the  command,  provided  its  use  by  him  involved  no  material  damage 
to  the  land  or  other  public  property.  R.  46,  5,  Jan.,  1882;  P.  d.  3, 
Aug.,  1892. 

VIII  A  4  e.  The  Army  appropriation  act  of  March  3,  1911  (36 
Stat.,  1048),  gives  authority  to  dispose  of  surplus  ice  and  electric 
light  and  power  ''on  such  terms  and  in  accordance  with  such  regula- 
tions as  may  be  prescribed  by  the  Secretary  of  War."  but  gives  no 
similar  authority  in  respect  to  the  sale  of  surplus  water  from  a  post 
water  system.  Held,  on  the  application  of  the  municipality  of  Par- 
ang, Mindanao,  P.  I.,  to  make  connection  with  the  water  main  of 
the  military  post  at  that  place  and  to  use  the  surplus  water  raised 
by  the  Government  pumping  plant,  that  the  authority  conferred  by 
said  act  of  March  3,  1911,  was  not  broad  enough  to  cover  the  sale  of 
water  that  is  being  acquired  or  appropriated  by  the  Government 
from  day  to  day,  but  that  an  arrangement  might  legallv  be  made 
whereby  the  town  would  supply  the  fuel  and  labor  for  the  purpose 
of  pumping  water  over  and  above  the  supply  needed  for  military 
purposes  and  would  receive  the  same  through  the  Government  sys- 
tem; and  that  this  would  not  be  a  sale  of  property  appropriated  by 
the  Government,  but  a  license  to  receive  water  through  the  Govern- 


PUBLIC  PROPERTY  VIII  A  5.  955 

ment  system.  C.  21384,  Ajyr.  13,  1907.  Similarly  lieU,  with  respect 
to  connecting  the  railway  station  with  the  post  water  system  at 
Madison  Barracks,  N.  Y.,  the  post  being  directly  interested  in  the 
sanitary  condition  of  said  station,  the  railway  company  to  supply 
such  labor  and  fuel,  as  a  proportional  share  of  the  operating  expenses 
of  the  plant,  as  the  post  commander  might  determine  to  be  equitable. 
C.  29023,  Aug.  22  and  Dec.  12,  1911.  Held,  also,  that  a  license  might 
properly  be  given  to  connect  certain  houses  built  for  the  occupancy 
of  enlisted  men  and  their  families  and  situated  just  off  a  military 
reservation  with  the  post  water  system,  the  water  so  withdrawn  to 
be  for  the  use  of  the  enlisted  men  and  their  families  only.  C.  28586, 
June  20,  1911. 

VIII  A  5.  Congress  has  no  power  to  grant  or  to  provide  for  granting 
a  license  to  establish  and  operate  a  ferry  across  navigable  waters  of 
the  United  States  at  a  point  within  a  State,  or  to  prohibit  the  opera- 
tion of  a  ferry  at  such  point.  This  is  a  matter  which  comes  within 
the  police  power  of  a  State,  and  it  has  uniformly  been  held  by  the 
courts  that  the  States  did  not  surrender  that  power  by  the  adoption 
of  the  Constitution  or  otherwise.  But  the  Secretary  of  War  may 
give  a  revocable  license  for  the  landing  of  a  ferry  (duly  licensed  by  the 
proper  local  authority)  at  a  pier  of  the  United  States,  providing  such 
landing  may  be  made  without  injury  to  the  pier  and  so  as  not  to 
involve  an  exclusive  use  of  any  part  of  it.  P.  58,  450,  Mar.  1893; 
C.  14729,  June,  1903. 

VIII  A  6.  Where  a  stock  of  musical  instruments  has  accumulated 
in  excess  of  the  legitimate  demands  of  troops,  held  that  in  a  case  where 
the  welfare,  comfort,  and  contentment  of  the  enlisted  men  of  the 
Army  would  be  promoted  by  their  use,  the  Secretary  of  War  may  per- 
mit their  use  by  members  of  a  volunteer  band  at  a  post  (volunteer  in 
the  sense  that  the  band  is  not  one  that  has  been  authorized  by 
Congress).     C.  23870,  Sept.  21,  1908. 

yill  B.  Revocable  licenses  (other  than  those  instanced  in  the  fore- 
going paragraphs)  for  the  temporary  use  or  occupation  of  the  soil  of  a 
military  reservation  have  not  unfrequently  been  granted  under 
proper  regulations  by  the  Secretary  of  War.  As,  for  example,  a 
license  to  occupy  the  land  for  target  practice  by  a  gun  club  (P.  d,  91, 
Jan.,  1893) ;  for  the  landing  of  boats  (P.  a,  218,  Mar.,  1887;  P.  b,  343, 
Mar.,  1889;  for  the  landing  of  a  submarine  cable  (P.  a,  166,  Dec,  1886; 
P.  B,  172,  Mar.,  1888,  and  323,  Feb.,  1889) ;  or  for  use  as  a  bathing  beach 
(P.  c,  296,  June,  1891);  to  occupy  vacant  buildings  (P.  b,  136,  198, 
Jan.  and  Apr.,  1888-;  P.  c,  84,  Jan.,  1889,  and  173,  June,  1890);  or 
unused  defenses  such  as  a  Martello  tower  (P.  b,  49,  July,  1887;  P.  c, 
427,  Apr.,  1892);  to  erect  a  temporary  building  for  telephone  office 
(P.  A,  249,  May,  1887;  P.  b,  231,  June,  1888);  for  a  storehouse 
(P.  c,  123,  and  124,  Apr.,  1890);  for  refuge  for  fishermen  (P.  b,  354, 
Apr.,  1889);  for  a  church  (P.  b,  45,  June,  1887,  and  4I6,  June, 
1889) ;  for  a  schoolhouse  (P.  b,  45,  June,  1889) ;  for  a  keeper  of  a 
life-saving  station  (C.  817,  Jan.,  1895);  to  put  up  a  stockyard  or 
shipping  pens  for  cattle  to  be  transported  by  railway  (P.  a,  123,  July, 
1886);  to  carry  a  road  across  a  part  of  the  land  as  a  convenient 
continuation  of  a  town  street  (P.  c,  6,  Oct.,  1889) ;  to  lay  a  track  for 
a  tramway  or  temporary  railway  (P.  a,  99,  July,  1886;  P.  b,  22,  June, 
1887,  and  355,  Apr.,  1889;  P.  c,  213,  Oct.,  1890;  P.  d,  131,  Feb., 
1893;  0.  10624,  June  11,  1901);  to  extend,  maintain,  and  operate  an 


956  PUBLIC  PROPERTY  VIII  B  1. 

electric  railway  across  a  reservation  (C  1155,  Apr.,  1895;  C.  16182, 
Apr.  18,  1904);  to  a  railway  company  to  build  spur  tracks  (C.  3221, 
May,  1897) ;  to  erect  poles  and  carry  a  line  of  wire  for  telegraph  or 
telephone  communication  (P.  a,  173,  Jan.,  1887;  P.  c,  350,  Oct.,  1891; 
P.  B,  77,  Dec,  1892);  to  carry  an  electric  wire  across  a  Government 
bridge  (P.  A,  198  and  201,  Mar.,  1887;  P.  b,  132,  Jan.,  1888;  P.  c,  89, 
Feb.,  1890);  to  lay  underground  pipes  for  water,  oil,  or  gas  (P.  a, 
106,  118,  July,  1886,  and  211,  Mar.,  1887;  P.  B,  430,  June,  1889; 
P.  c,  481,  July,  1892;  P.  d,  213,  June,  1893;  C,  155,  316,  Aug.  and 
Sept.,  1894);  to  construct  an  irrigating  ditch  (P.  a,  94, 169,  Apr.  and 
Dec,  1886;  P.  b,  76,  Aug.,  1887,  and  475,  Aug.,  1889;  P.  c,  26,  Nov  , 
1889,  and  376,  Dec,  1891). 

VIII  B  1 .  Held,  with  respect  to  the  use  for  a  post  office  of  a  room 
at  Fort  Bayard,  N.  Mex.,  that  the  mail  facilities  should  be  regarded 
as  a  sufficient  consideration  for  placing  accommodations  at  the 
service  of  the  Post  Office  Department,  similar  arrangements  having 
been  made  at  a  number  of  other  posts;  that  the  use  and  rental  of  lock 
boxes  in  the  Post  Office  Department  is  regulated  by  statutes  which 
the  Postmaster  General  can  not  waive;  and  that  the  existing  arrange- 
ments for  the  use  of  such  room  should  be  continued  so  long  as  they 
are  to  the  public  interest.     C.  26377,  Mar.  17, 1910. 

VIII  C.  If  the  United  States  acquires  a  military  reservation  subject 
to  the  public  easement  in  a  highway  across  the  same  and  does  not 
acquire  exclusive  jurisdiction  over  the  reservation,  the  right  to  con- 
trol and  regulate  the  use  of  the  public  easement  in  such  highway 
remains  in  the  legislature  of  the  State.*  Where,  in  such  a  case,  the 
reservation  was  in  the  State  of  New  York,  it  was  held  that  the  consent 
of  the  State  highway  authorities  and  of  the  United  States  as  owner 
of  the  fee  to  the  highway  within  the  limits  of  the  reservation  would 
be  necessary  to  authorize  the  construction  of  an  electric  railway  or 
an  electric-light  line  on  such  highway,  the  railway  and  line  being 
under  the  laws  of  New  York  a  burden  on  the  fee  additional  to  the 
easement  for  a  highway.  If  the  fee  to  the  highway  were  owned 
by  a  private  individual,  the  railway  and  line  could  be  located  thereon 
without  his  consent  on  payment  of  just  compensation;  but  as  the 
highway  was  on  a  reservation  held  by  the  United  States  for  military 
purposes,  there  was  no  power  in  the  State  to  authorize  the  appropria- 
tion of  any  part  of  such  reservation  without  the  consent  of  the  United 
States.  In  the  absence  of  statutory  authority  the  Secretary  of  War 
could  not  give  the  consent  of  the  United  States  so  as  to  enlarge  the 
easement  to  the  highway,  or  rather  so  as  to  impose  a  new  easement 
on  the  fee,  but  he  could  permit  the  railway  and  line  to  be  located 
on  the  highway  under  a  license  which  would  impose  no  new  easement 
on  the  fee  and  would  be  revocable  by  him  at  any  time,  such  license 
to  be  issued  preferably  after  the  parties  applying  for  the  same  had 
obtained  the  necessary  consent  from  the  proper  highway  authorities 
of  the  State.  C.  1240,  1545,  May  and  July,  1895;  2143,  Mar.,  1896; 
16182,  Aug.  16,  1904. 

VIII  D.  The  Secretary  of  War  is  not  empowered  to  grant  a  revo- 
cable license  to  use,  any  more  than  to  lease,  premises  not  belonging 
to  the  United  States  or  under  his  control.  P.  60,  350,  July,  1893. 
Thus  where  the  United  States  did  not  own  certain  land  upon  which 

*  See  Faust  v.  Pass.  Railway  Co.,  3  Phila.,  164. 


PUBLIC  PROPERTY  VIII  E.  957 

had  been  erected,  under  appropriation  by  Congress,  certain  struc- 
tures for  the  improvement  of  navigation,  as  cribs  and  pilework, 
held  that  as  it  haa  no  interest  in  the  soil  but  only  a  right  of  conserva- 
tion of  such  structures,  it  could  not,  through  the  Secretary  of  War, 
ij:rant  a  revocable  license  to  use  the  land  for  any  purpose  which 
would  interfere  with  the  owner's  rights,  without  his  concurrence. 
P.  40,  42,  232,  Mar.  and  Apr,,  1890.  Held,  however,  on  the  applica- 
tion of  the  owner  of  the  land,  that  permission  might  be  given  such 
owner  for  the  construction  of  a  dock,  it  fully  appearing  that  it  would 
not  injure  the  dike  or  obstruct  navigation.     R.  51,  609,  Mar.,  1887. 

VIII  E.  A  revocable  license  to  go  upon  a  military  reservation  and 
use  the  land  for  a  purpose  not  affecting  the  interests  or  convenience 
of  the  military  authorities,  is  an  assurance  to  the  person  that  he 
will  not  be  molested  as  a  trespasser  while  his  license  remains  unre- 
voked. When  revoked,  he  may  be  required  to  remove  his  property 
without  unreasonable  delay.  P.  50,  4-20,  Dec,  1891.  Where  certain 
cattlemen  were  permitted  to  erect  a  temporary  fence  on  a  military 
reservation  and  later  the  permission  was  withdrawn,  held  that  they 
should  be  allowed  to  remove  the  materials.     E.  4-9,  615,  Dec,  1885. 

VIII  E  1.  Where  the  track  of  a  railroad  company  was  located  upon 
a  military  reservation  by  license  or  sufferance,  tne  company  having  no 
right  of  way  granted  it  by  Congress,  held  that  the  company  could  be 
ejected  by  judicial  proceedings  and  its  prop.erty  moved  off  the  reser- 
vation; but  advised  that  a  new  location  be  designated,  to  better  accom- 
modate the  requirements  of  the  command,  and  that  the  company  be 
given  notice  to  move  its  tracks  to  the  designated  location,  for  the  occu- 
pation of  which  a  revocable  license  may  be  given  it  by  the  Secretary 
of  War.     P.  42,  324,  Aug.,  1890;  C.  169,  Aug.,  1894. 

IX  A  1.  Held  that  the  term  ''military  stores,"  in  section  1241, 
R.  S.,^  covers  property  purchased  for  works  of  fortification,  but  not 
property  purchased  for  the  civil  works  of  river  and  harbor  improve- 
ment ((7.  3419,  Aug.  7, 1897;  10272,  Apr.  21, 1901) ;  but  that  the  regu- 
lations as  to  property  accountability  cover  all  property  under  the 
control  of  the  Secretary  of  War,  including  river  and  harbor  property. 
a  34I8,  Aug.  6,  1897;  3419,  Aug.  7,  1897.  Held,  however,  that 
paragraph  679,  Army  Regulations,  1895  (691  of  1910),  providing  for 
the  disposition  of  "military  stores  and  public  property  condemned 
and  ordered  sold,"  related  only  to  public  property  m  the  custody  of 
the  military  establishment,  and  did  not  apply  to  property  in  the  cus- 
tody of  the  Chief  of  the  Supply  Division  of  the  War  Department,  and 
pertaining  to  the  War  Department  as  a  civil  establishment.  C.  3774, 
Jan.  10,  1898.  Also  held,  with  respect  to  the  inspection  of  river  and 
harbor  property,  that  the  Secretary  of  War  might  authorize  this  to 
be  done  bv  division  engineers  on  their  tours  of  inspection.  G.  5553, 
Dec  29,  1898. 

IX  A  1  a.  Held  that  it  is  doubtful  whether  empty  barrels,  boxes, 
crates,  and  other  packages,  together  with  metal  turnings,  scrap 
metals,  ground  bone,  and  other  waste  products  of  manufacture  which 
accumulate  at  arsenals,  depots,  and  military  posts,  constitute  ''mili- 

'  Section  1241,  R.  S.,  provides  that:  "The  President  may  cause  to  be  sold  any- 
military  stores  which,  upon  proper  inspection  or  survey,  appear  to  be  dama^^ed  or 
unsuitable  for  the  public  service.  Such  inspection  or  survey  shall  be  made  by 
oflScers  designated  by  the  Secretary  of  War,  and  the  sale  shall  be  made  under  regu- 
lations prescribed  by  him." 


958  PUBLIC   PROPERTY  IX  A  2   a. 

tary  stores"  in  the  sense  in  which  those  words  are  used  in  section 
1241  R.  S.,  as  no  inspection  or  survey  would  be  necessary  to  determine 
whether  such  articles  were  in  fact  ^'damaged  or  unsuitable"  or  to 
ascertain  how  they  became  so.^  C.  13628,  Nov.  18, 1902,  and  Feb.  21, 
1908. 

IX  A  2  a.  Section  1241,  R.  S.,  provides:  ''The  President  may  cause 
to  be  sold  any  military  stores  which,  upon  proper  inspection  or  sur- 
vey, appear  to  be  damaged  or  unsuitable  for  public  service.  Such 
inspection  or  surveys  shall  be  made  by  officers  designated  by  the 
Secretary  of  War,  and  the  sales  shall  be  made  under  regulations  pre- 
scribed by  him."  Held  that  before  a  sale  can  be  made  under  this 
statute  the  property  must  be  inspected  and  pronounced  unsuitable 
for  public  service,  and  the  regulations  (A.  R.  691  of  1910)  require  the 
sale  to  be  at  public  auction.  C.  965,  Feb.,  1895;  2127,  Mar.,  1896; 
8184,  May,  1900;  8668,  8675,  July,  1900;  8716,  Aug.,  1900;  16960, 
Oct.  1,  1904;  26973,  June  30,  1910. 

Held,  that  under  section  1241,  R.  S.,  unserviceable  tools  and 
materials,  which  had  been  in  use  at  a  national  cemetery,  could  not 
legally  be  ordered  to  be  sold  upon  the  mere  inspection  and  report  of 
their  unserviceableness  made  by  the  superintendent  of  the  cemetery, 
but  that,  as  required  in  the  section,  there  must  be  first  an  inspection 
''bv  an  officer  (i.  e.,  commissioned  officer)  designated  by  the  Secretary 
of  War."  R.  54,  609,  Feb.,  1888.  Also  held  that  coffee  roasters  could 
not  be  sold  on  the  certificate  of  the  Commissary  General  that  they  are 
unsuitable,  but  only  ''  upon  proper  inspection  and  survey."  0.  20302, 
Aug.  29,  1906.  Held,  however,  with  respect  to  a  sale  of  the  distilling 
plant  at  Malihi  Island,  P.  I.,  that  the  certificate  of  the  division  com- 
mander that  the  plant  was  not  needed,  and  recommending  that  it  be 
sold  at  the  appraised  value,  coupled  with  such  appraisement,  may  be 
regarded  as  constituting  the  proper  inspection  and  survey  which  is 
required  by  statute.     G.  19153,  Jan.  31,  1906. 

IX  A  2  a  (1).  The  word  ''unsuitable,"  as  used  in  section  1241,  R.  S., 
evidently  refers  to  some  unfitness  for  use  other  than  that  caused  by 
being  "damaged."  Uniform  clothing,  for  instance,  of  sizes^  that 
could  not  be  used  would  be  unsuitable.  But  tield  that  the  meaning  of 
the  word  could  not  properly  be  restricted  to  things  of  a  quality 
inferior  to  that  which  is  required  for  the  service.  A  thing  may  be 
unsuitable  by  reason  of  its  being  of  such  suj)erior  quality  as  not  to  be 
adaptable  for  the  purpose  for  which  it  was  intended.  And  lield  that 
military  stores  can  not  properly  be  deemed  unsuitable  under  this  stat- 
ute for  the  sole  reason  that  they  are  in  excess  of  the  quantity  required 
for  use.2  P.  64,  218,  Mar.,  1894;  C.  7796,  Mar.,  1900;  20011,  July  9, 
1906;  24743,  Apr.  8,  1909. 

IX  A  2  a  (2) .  Certain  Government  property  (a  quantity  of  cord 
wood  and  a  hay  scale)  was  left  on  hand  at  a  militarv  post  which  had 
been  abandoned.  The  property  was  no  longer  neeaed  there  and  the 
expense  of  transporting  it  elsewhere  would  largely  exceed  its  cost. 
Held,  therefore,  that  it  was  "unsuitable  for  the  public  service"  within 

1  As  a  result  of  the  above  opinion  par.  760,  A.  R.  (690  of  1910),  was  amended  so  as  to  j 
do  away  with  the  inspection  and  survey  of  the  articles  enumerated  above. 

2  See  Comptroller's  opinion  contra  of  Dec.  4,  1900  (VII  Comp.  Dec,  260),  which, 
however,  can  not  be  regarded  as  having  the  weight  of  authority,  inasmuch  as  the  Comp- 
troller, in  rendering  the  opinion,  was  not  acting  within  the  jurisdiction  conferred 
upon  him  by  the  act  of  July  31, 1894. 


PUBLIC  PROPERTY  IX  A  2  a  (s).  959 

the  meanincr  of  section  1241  R.  S.^  C.  8795,  Aug.,  1900;  9334,  ^ov. 
27,  1900;  9359,  Nov.  28,  1900;  10272,  Apr.  22,  1901;  12^91,  May  6, 
1904;  12777,  June  12,  1902. 

IX  A  2  a  (3).  There  is  no  statute  which  would  authorize  the  sale  of 
timber  on  military  reservations,  and  in  the  absence  of  such  a  statute 
the  Secretary  of  War  can  not  authorize  such  sale.  C.  81 4I,  May^ 
1900;  16983,  Oct  8, 1904;  ^0531 ,  Oct.  15, 1906;  20544,  Oct.  18  and  Nov. 
20,  1906;  20818,  Dec.  22,  1906.  Held,  however,  that  timber  which 
has  readied  maturity,  so  that  it  begins  to  deteriorate,  may  be  re- 
garded as  damaged  and  unsuitable,  and  may  be  sold  under  the  provi- 
sions of  section  1241  R.  S.  C.  20531 ,  Oct.  15, 1906;  25236,  July  8, 1909 
and  Apr.  1,  1910;  25558,  Sept.  I4,  1909,  and  Oct.  4,  1910.  Similarly 
held,  with  respect  to  timber  thrown  down  and  injured  by  a  tornado, 
that  if  on  inspection  and  survey  it  should  be  found  unsuitable,  it 
should  be  disposed  of  under  tliis  section.  C.  20544,  Nov.,  1906; 
20818,  Dec.  22,  1906.  Also  held  that  driftwood  coming  ashore  on  a 
miUtary  reservation,  if  it  has  any  value,  must  be  treated  as  other 
property  under  the  control  of  the  War  Department.  C.  20720, 
Dec.  4,  1906. 

IX  A  2  a  (4) .  Where  for  sanitary  reasons  it  was  necessary  to  clear 
a  reservation  of  timber  and  underbrush,  held  that  under  the  provisions 
of  section  1241  R.  S.,  a  contract  might  properly  be  entered  into  for  the 
clearing  of  the  reservation  of  timber  and  underbrush,  the  contract  to 
provide  that  the  timber  and  underbrush  should  become  the  property 
of  the  contractor,  the  proper  clearing  of  the  ground  in  such  case  being 
regarded  as  an  incident  of  the  sale  of  the  timber  and  underbrush. 
0.  29123,  Oct.  16,  1911. 

IX  A  2  b.  In  view  of  the  general  authority  vested  in  the  President 
and  Secretary  of  War  by  the  provision,  in  regard  to  the  sale  of  military 
stores  damaged  or  unsuitable  for  the  public  service,  of  the  act  of 
March  3,  1825  (now  contained  in  sec.  1241,  R.  S.),  held  that  such 
stores  might  legally  be  sold  on  credit,  if  such  mode  of  disposition  was 
deemed  for  the  public  interest.     R.  29,  830,  Oct.,  1869. 

IX  A  2  c.  Held  that  a  noncommissioned  officer  who  acted  as 
auctioneer  at  a  public  sale  of  condemned  quartermaster  stores  could 
not  legally  be  paid,  out  of  the  proceeds  of  the  sale,  a  commission  of 
10  per  cent,  or  any  other  commission  or  compensation,  for  his  services 
as  auctioneer.  The  pay  and  allowances  of  all  enlisted  men  are  fixed 
by  law,  and,  in  the  absence  of  any  authority  in  the  statute  providing 
for  such  sales  or  other  statutory  provision,  such  a  compensation  must 
necessarily  be  without  legal  sanction.  P.  60,  363,  July,  1893;  62,  95, 
Oct.,  1893.  But  held  that  a  civilian  employee  hired  by  the  Quarter- 
master's Department,  under  the  provision  for  ''hire  of  teamsters  and 
other  employees"  in  the  appropriation  for  ''transportation  of  the 
Army  and  its  supplies,"  whose  pay  is  not  fixed  by  "law  or  regulations," 
may  legally  be  paid  for  services  as  an  auctioneer  at  a  public  sale  of 
condemned  quartermaster  property.  C.  2567,  Sept.,  1896;  6988 ^ 
Sept.,  1899;  11983,  Feb.  1,  1902. 

IX  A  2  d.  Where  oil  was  purchased  in  barrels  with  the  understand- 
ing that  the  empty  barrels  should  be  returned  at  an  agreed  valuation, 
held  that  the  transaction  should  not  be  regarded  as  a  sale,  but  as  a 
settlement  under  contract,  so  that  no  inspection  would  be  required. 
C.  1324,  May  16,  1895. 


h 


See  VII  Comp.  Dec,  260,  tx)  same  effect. 


960  PUBLIC  PKOPEETY  IX  A  2  f. 

IX  A  2  f.  On  request  by  a  veterinarian  for  permission  to  make 
medical  experiments  on  a  condemned  Cavalry  horse  with  a  view  to 
embodying  the  results  of  the  sarae  in  a  report  to  the  department, 
Jield  that  there  was  no  legal  objection  to  granting  the  authority 
requested.  C.  3792,  Jan.  17,  1898.  Also,  held  that  condemned  can- 
non might  legally  be  used  for  casting  bronze  tablets  for  marking  lines 
of  battle.  0.  25359,  July  21,  1909.  And  where  a  searchhght  had 
been  condemned  and  ordered  sold,  on  application  for  the  loan  of  the 
same  to  a  National  Home  for  Disabled  Volunteer  Soldiers,  Jield  that  it 
was  within  the  discretion  of  the  Secretary  of  War  to  defer  the  sale 
for  such  time  as  he  might  deem  warranted ;  and  that  the  requirements 
of  the  statute  are  directory  to  the  extent  of  vesting  the  incidents  of 
the  sale,  including  the  date,  in  the  discretion  of  the  Secretary  of  War. 
C.  25236,  Mar.  18  and  Apr.  1,  1910. 

IX  A  3.  Held  that  the  provision  of  section  3618,  R.  S.,  requiring  that 
''all  proceeds  of  sales  of  old  material,  condemned  stores,  supplies,  or 
other  public  property  of  any  kind"  shall,  with  certain  specified  excep- 
tions, be  deposited  and  covered  into  the  Treasury  as  miscellaneous 
receipts  and  not  withdrawn  except  by  authority  of  a  statutory  appro- 
priation, applied  to  the  proceeds  of  surplus  cuttings  of  material  for 
clothing  manufactured  by  the  Quartermaster's  Department  of  the 
Army — the  same  not  being  within  any  of  the  designated  exceptions 
and,  therefore,  that  the  proceeds  of  such  cuttings  could  not  legally  be 
retained  and  used  in  the  business  of  that  department.  R.  Jf.2,  653, 
May,  1880.  Held,  further,  that  this  statute,  as  amended  by  the  act 
of  June  8,  1896  (29  Stat.  268),  requires  the  ''net  proceeds"  only  to 
be  deposited  in  the  Treasury,  so  that  all  expenses  of  sale  should  be 
paid  from  the  proceeds,  and  if  no  sale  takes  place,  any  cost  of  adver- 
tising would  constitute  a  proper  charge  against  the  appropriation  for 
contingencies  of  the  Army.     C.  25236,  Mar.  18,  1910. 

IX  A  3  a.  Books  for  a  post  library  purchased  out  of  post  exchange 
funds  or  donated  to  the  library  are  not  "public  property"  within  the 
meaning  of  section  3618,  R.  S.  Proceeds  from  a  sale  of  them  may 
therefore  legally  be  expended  in  the  purchase  of  new  books.  C.  264-9, 
Sept.,  1896.  So,  where  the  property  was  not  public  property  of  the 
United  States  but  pertained  to  the  road  fimd  of  the  District  of  Alaska 
to  be  used  and  expended  in  its  behalf,  held,  that  the  moneys  received 
from  sales  should  be  applied  to  the  purposes  for  which  the  fund  was 
appropriated  by  Congress.     O.  20353,  Sept  10,  1906. 

IX  A  4.  Where  property  not  covered  by  section  1241,  R.  S.,  is  to 
to  be  disposed  of,  held,  that  if  the  property  has  been  in  use  and 
repaired,  so  that  its  value  is  less  than  its  cost,  the  Secretary  of  War 
may  fix  a  price  at  which  the  property  shall  be  disposed  of.  C.  26372, 
Mar.  17, 1910. 

IX  B  1.  Held,  that  the  provisions  of  section  23,  chapter  75,  act  of 
March  3, 1863,  prohibiting  the  sale,  &c.,  of  their  arms,  &c.,  by  soldiers, 
and  declaring  that  no  right  of  property  or  possession  should  be 
acquired  thereby,  &c.,  were  not  limited  in  their  operation  to  the 
period  of  the  civil  war,  but  were  still  in  force, ^  and  that  an  officer  of 
the  army  would  therefore  be  authorized  to  seize  arms,  &c.,  disposed 
of  contrary  to  such  prohibition,  whenever  and  wherever  found.  R. 
22,  525,  Dec,   1866.     But  inasmuch   as  there  have  been  sundry 

^  See  these  provisions  as  now  incorporated  in  the  Revised  Statutes,  in  sections  1242 
and  3748. 


PUBLIC  PROPERTY — PUNISHMENT.  961 

authorized  sales  of  arms  and  other  ordnance  stores  since  the  end  of 
that  war,  advised,  that  officers,  before  making  seizures,  should  assure 
themselves  that  the  parties  in  possession  have  not  acquired  title  in  a 
legal  manner.  R.  29,  187  and  204,  ^UQ-,  iS69;  G.  11219,  Sept. 
12,1901. 

IX  B  2.  Section  3748,  R.  S.,  provides  that  clothing  furnished  by 
the  United  States  to  a  soldier  shall  not  be  bartered,  exchanged, 
pledged,  loaned  or  ^ven  away,  and  that  no  person  not  a  soldier  or 
officer  of  the  United  States  who  has  possession  of  any  such  clothing 
so  furnished  and  which  has  been  the  subject  of  such  sale,  barter,  etc., 
shall  have  any  ri^ht,  title,  or  interest  therein,  but  that  the  same  may 
be  seized  and  taken  wherever  found  by  any  officer  of  the  United 
States,  civil  or  military,  and  shall  thereupon  be  delivered  to  any 
quartermaster  or  other  officer  authorized  to  receive  the  same,  that 
tne  possession  by  a  civilian  of  clothing,  etc.,  furnished  to  a  soldier 
shall  be  presumptive  evidence  of  the  sale,  barter,  exchange,  etc.  The 
language  of  this  statute  indicates  that  a  summary  seizure  is  intended 
to  be  authorized  and  the  fact  that  the  military  officer  is  authorized 
to  seize  the  property  shows  that  no  writ  or  other  process  of  the  courts 
is  required.  But  while  the  power  to  summarily  make  the  seizure 
exists,  the  officer  authorized  to  take  possession  of  the  property  may 
also  assert  his  rights  through  the  courts,  and  this  latter  course  may 
be  in  many  cases  the  preferable  and  better  one.     C.  6303,  Nov.,  1898. 

. CROSS   REFERENCE. 

Applying  to  own  use See  Articles  of  War  LX  A  3  a. 

Blank  receipts  unauthorized See  Pay  and  allowances  IBS, 

Captures See  Claims  VI  A. 

WarIC6c(3)(&,. 
Damage  to See  Civilla.n  employees  II  B. 

Public  property  X. 

Deserter's  responsibility  for See  Desertion  XIX  A. 

Exchange  of  old  for  new See  Army  I  A  7. 

Hay  on  reservations See  Command  V  A  3  g. 

Loan  of See  Army  I  B  2  b  (5). 

Militia See  Militia  IX  to  X;  XVI  G. 

Misappropriation  of See  Articles  of  War  LX  A  3. 

Occupation  of  by  United  States See  Claims  VII  C  1. 

Post  exchange See  Government  agencies  II  J  5. 

Recruit  embezzlement See  Desertion  XXII  A. 

Responsibility  for  by  militia See  Militia  XVI  G. 

Sale  price  of See  Army  I  B  2  b  (4). 

Salvage See  Claims  VI  B. 

Secretary  of  War See  Army  I  B  2  b  to  c. 

Soldier's  clothing See  Pay  and  allowances   II  A  3  a  (4) 

(a);  (c). 
Title,  evidence  of. See  Discipline  XI  A  17  a  (2)  (a)  [1]  [d\. 

PUBLIC  WOKKS. 

See  Eight-hour  law  II;  III. 

PUNISHMENT. 

Addition  to,  illegal See  Discipline  XIV  E  2;  2  a;  9  h;  XVII A 

4  g  (3). 

By  military  court See  Discipline  XVII  A  to  C. 

Cadets See  Army  I  D  3  to  4. 

Deserter See  Desertion  X  A  to  D. 

Discharge  ivithout  honor  is  not See  Discharge  III  A  to  G. 

Dishonorable  discharge See  Discharge  IV  A  to  E. 

31106°— 12 61 


962  PURCHASE — EAILROAD. 

Imposition  of See  Discipline  XII  B  3  d  to  h. 

Pardon See  Pardon. 

Summary See  Discipline  I  E  2. 

Unauthorized. See  Discipline  XVII  B  1  a  to  g. 

Pay  and  allowances  III  D  1. 

PURCHASE. 

Expenses  preliminary  to See  Appropriations  VIII. 

Jurisdiction See  Public  property  V  C  1;   E  1  to  2. 

Land See  Public  property  II  A. 

Navigable  waters  X  D  to  E. 

Supplies  from  allies See  War  I  C  6  d  (1). 

Target  range See  Militia  VI  C  1  b. 

QUARANTINE. 
Inspection '. See  Tax  III  K. 

QUARTERMASTER'S  DEPARTMENT. 

See  Army  I  G  3  b  (2)  to  (3). 
Campaign  badges See  Insignia  of  Merit  III  B  1. 

Retirement  IKS. 

Clothing See  Pay  and  Allowances  II  A  3  a  (4)  to 

(5). 

Details  to See  Army  I  B  2  a  (1). 

Electric  fans  for  hospitals See  Appropriations  XLI  . 

Forage See  Pay  and  Allowances  II  A  2  d  to  e. 

Heat  and  Light See  PA«y  and  Allowances  II  A  1  to  2. 

Appropriations  XL. 

Purchases  from  military  prison See  Discipline  XVII  A  4  g  (2). 

Qvxirters See  Pay  and  Allowances  II  A  2  b  to  c. 

Transportation See  Pay  and  Allowances  II  A  2  a  to  b. 

QUARTERMASTER  GENERALS  OF  STATES. 

See  Militia  III  H. 

QUARTERMASTER  SERGEANT. 

Appointment  of. See  Army  I  E  2  b. 

QUARTERS. 

Commutation  of,  and  heat  and  light See  Pay  and  Allowances  II  A  1  c  (3); 

(6). 

Retired  officer See  Retirement  I  K  2  d. 

Right  to,  accrues  when See  Pay  and  Allowances  II  A  1  c  (1). 

Traveling  on  duty See  Pay  and  Allowances  II  A  2  b  (3). 

QUASI  PUBLIC  FUNDS. 

Loss  of. See  Government  Agencies  I  D  to  E. 

QUORUM. 

General  court-martial See  Discipline  VII  C  1. 

RAILROAD. 

Military  reservation See  Public  Property  VIII  E  1 . 

National  cemetery See  Public  Property  IV  A  2  a. 

Right  of  way See  Public  Property  III  C;  VI  E  to  F. 

Seizure See  War  I  C  6  b  (1)  (6). 


bank:  synopsis.  963 

RANK. 

I.  ACTUAL  RANK. 

A.  Is  Not  Office — May  be  Attached  to  Office Page  964 

1.  Office  without  rank. 

B.  Date  of  Attachment  op  Rank. 

1.  Appointment,  acceptance  or  date  mentioned  in  nomination. 

a.  Appointment  or  included  mentioned  date. 

b.  Vacancy. 

(1)  Acts  of  October  1,  1890,  and  April  26,  1898. . .  Page  965 

c.  Medical  Corps. 

(1)  Date  of  appointment  or  commission. 

(2)  Period  to  captaincy  runs  from  date  of  appointment. 

(a)  Under  act  of  June  23,  1874. 
(6)  Under  act  of  April  23,  1908. 

d.  Bureau  chief,  War  Department. 

(1)  On  reappointment,  rank  antedated. 

C.  Detailed  Staff. 

1,  Officers  have  line  rank  only  unless  otherwise  provided  by  law. 

2.  Retirement  for  disability  with  detailed  rank. 

D.  Enlisted  Men, 

1.  Noncommissioned  officers  rank  from  date  of  appointment. . .  Page  966 

2.  Warrant  made  continuous  is  a  reappointment  with  antedated  rank. 

3.  Rank  can  not  be  created  except  by  act  of  Congress. 

4.  Warrant  is  evidence  of  rank— if  lost,  replaced. 
n.  RELATIVE  RANK,  OFFICERS. 

A.  Fixed  by  Date  op  Actual  Rank. 

1.  Confirmed  in  orders  different  from  order  of  appointment. 

2.  Interpretation  of  section  1219,  Revised  Statutes. 

a.  Fixed  by  acceptance  of  original  commissions Page  967 

3.  Relative  rank  once  fixed  can  not  be  changed;  exceptions. 

a.  Sentence  of  court-martial. 

(1)  To  retain  present  number  on  lineal  list. 

(2)  To  be  reduced  files. 

(3)  To  be  reduced  to  foot  of  list. 

b.  Pardon. 

(1)  Of  unexecuted  sentence. 

(2)  Of  executed  sentence. 

c.  Act  of  Congress Page  968 

B.  Volunteers, 

1.  Relative  rank  can  not  antedate  muster-in, 

2.  Act  of  April  22,  1898  (30  Stat.  361). 

C.  By  Act  op  Congress. 

1.  Sword  master,  United  States  Military  Academy. 

D.  Service  as  a  Naval  Cadet  Does  Not  Count. 
m.  LINEAL  RANK. 

A.  Loss  op  Rank  by  Sentence  of  General  Court-Martial  Means  Loss 
OP  Lineal  Rank. 
IV.  BREVET  RANK. 

A.  Incident  of  Full  Rank  op  a  Lower  Grade Page  969 

B.  Assignment  to  Duty  Under  Brevet  Rank. 

1.  Rights  when  so  assigned, 
V.  SUSPENSION  FROM  RANK. 

A.  Does  Not  Lose  Right  to  Rise  in  Files  in  His  Grade. 

B.  Does  Not  Affect  Rights  Previously  Vested. 

C.  Under  Act  of  October  1,  1890. 

1.  Dates  from  date  when  right  to  promotion  accrued. 


964  BANK   I  A. 

I  A.  Kank  is  not  office.  It  may  be  attached  to  office.  Thus  the 
office  of  ''Chief  of  the  Record  and  Pension  Office"  had  attached  to  it 
at  one  time  the  rank  of  colonel  and  at  a  later  time  the  rank  of  briga- 
dier general.  Also,  the  office  of  ''Inspector  General"  may  have  the 
rank  of  colonel  of  Cavalry,  and  the  office  of  "Judge  Advocate  Gen- 
eral" has  the  rank  of  brigadier  general,  and  the  office  of  ''Chaplain" 
may  have  the  rank  of  captain  or  major,  and  the  office  of  "Adjutant 
General"  has  the  rank  of  brigadier  general,  etc.^  C.  6020,  Mar.  10, 
1899;  19Ji25,  Mar.  17, 1906;  4747,  Aug.  6,  1898;  17508,  Feb.  15, 1905. 

I  A  1.  Held  that  although  veterinarians  are  officers  of  the  Army 
they  have  no  rank.  G.  1660 4,  July  20,  1911.  Similarly  held  that 
the  teacher  of  music  at  the  United  States  MiHtary  Academy,  West 
Point,  N.  Y.,  is  an  officer  of  the  Army  without  rank.^  Q.  25070, 
Oct.  13,  1909. 

I  B  1.  There  are  three  dates  from  which  the  rank  and  precedence 
of  an  officer  of  the  regular  establishment  may  be  determined,  viz, 
(1)  the  date  of  his  appointment  or  commission;  (2)  the  date  of  his 
acceptance  of  the  appointment;  and  (3)  a  date  anterior  to  that 
upon  which  the  appomting  power  was  fully  exercised,  which  date  is 
established  by  the  date  of  rank  conferred  in  the  appointment  or  com- 
mission of  the  officer.    C.  23135,  Apr.  3,  1909. 

I  B  1  a.  An  accepted  appointment  or  commission  takes  effect  in 
respect  to  rank  as  of  and  from  the  date  on  which  it  is  completed  by 
the  signature  of  the  appointing  power,  unless  the  appointment  or 
commission  specifies  a  fixed  date  for  the  attachment  of  the  rank,  in 
which  case  the  rank  is  held  from  such  specified  date.^  R.  39,  609, 
July,  1878;  43,  208,  Feb.,  1880;  C.  7588,  Jan.  25,  1900;  10698,  June 
18,  1901;  12599,  May  12,  1902;  14473,  Apr.  11,  1903;  15262,  Sept. 
17,  1903;  16732,  Aug.  16,  1904;  19650,  May  7,  1906;  21053,  Feb.  6 
and  18,  1907;  23688,  Sept.  16,  1909;  23983,  Oct.  7,  1908. 

I  B  1  b.  From  the  organization  of  the  Government  the  practice 
of  specifying  dates  of  rank  in  appointments  and  commissions  has 
not  always  been  uniform.  Held  that  the  rank  of  an  officer  may  relate 
back  to  the  date  of  the  occurrence  of  the  vacancy  to  which  the  com- 
mission has  reference.''  C.  19425,  Mar.  17,  1906;  14473,  Apr.  11, 
1903,  and  Apr.  9,  1906. 

1  Wood  V.  United  States,  15  Ct.  Cls.,  151;  107  U.  S.,  414; 40  Ct.  Cls.,  110;  25  Op.  Atty. 
Gen.,  591.  If  Congress  changes  the  rank  attached  to  an  office  it  is  not  necessary  that 
the  incumbent  should  be  nominated  and  confirmed  by  the  Senate  in  order  that  the 
new  rank  shall  attach.  _  (22  Op.  Atty.  Gen.,  381, 480.) 

An  ofiicer  while  holding  one  ofiice  which  has  ordinarily  a  certain  rank,  may  acquire 
a  new  and  higher  rank.  (Digest  2d  Comp.  Dec,  Vol.  Ill,  par.  879.)  Also  rank  and 
pay  do  not  necessarily  run  together.  (Ibid.,  par.  892.)  Also  see  act  of  July  7,  1898 
(30  Stat.  714). 

Interesting  data  concerning  ''Rank,  etc.,  of  certain  Army  ofiicers,"  and  a  r6sum6 
of  legislation  relating  to  changes  in  the  rank  of  ofiicers,  are  set  forth  in  Senate  Report 
No.  2153,  58th  Congress  2d  session. 

^  Paymasters'  clerks  in  the  Army  are  officers  and  have  a  military  status,  but  they 
have  no  rank.     See  act  of  Mar.  3,  1911  (36  Stat.  1044). 

Similarly  veterinarians  are  officers  and  have  no  rank.  See  sec.  20  of  the  act  of 
Feb.  2,  1901  (31  Stat.  748).     IX  Comp.  Dec,  455. 

See  sec.  1111,  R.  S.,  as  amended  by  the  act  of  Mar.  2,  1901  (31  Stat.  912),  and  the 
act  of  Mar.  3,  1905  (33  Stat.  853). 

The  act  of  Mar.  3,  1905,  also  conferred  relative  rank  on  the  sword  master  at  the  Mili- 
tary Academy. 

3  See  6  Op.  Atty.  Gen.,  68;  17  id.,  362. 

*  See  Wood  ^.  U.S.,  416. 


RANK  I  B  1  b  (l).  965 

IB  1  b  (1).  Held  that  when  officers  are  appointed  under  the  acts 
of  October  1,  1890  (26  Stat.  562),  and  of  April  26,  1898  (30  Stat. 
364),  the  rank  conferred  should  relate  back  to  the  date  of  the  vacancy. 
C.  17201,  Bee.  1,  1904;  15262,  Sept.  8,  1903. 

I  B  1  c  (1).  Under  the  act  of  July  5,  1884,  etc.,  lield  that  officers 
of  the  Medical  Department  take  rank  in  the  Medical  Department  in 
accordance  with  the  dates  of  rank  specified  in  their  appointments  or 
commissions  therein,  regardless  of  their  relative  rank  in  the  Army  at 
large.  0.  16120,  Apr.  6,  1904;  19613,  Apr.  28,  1906;  19650,  May 
8,  1906;  23136,  Mar.  10  and  Apr.  3, 1909;  R.  39,  491  and  608,  Mar., 
1878.' 

I  B  1  c  (2)  (a).  The  five-year  period  under  the  act  of  June  23, 1874, 
begins  to  run  as  to  lineal  and  relative  ranlc  at  the  date  of  rank  speci- 
iied  in  the  appointment,  and  as  to  pay  five  years  from  the  date  of  accept- 
ance of  appomtment.     C.  23136,  Mar.  11  and  Apr.  6,  1909. 

I  B  1  c  (2)  (b).  Held  that  officers  in  the  Medical  Corps  who,  prior 
to  the  approval  of  the  act  of  April  23,  1908,  have  served  three  years 
or  more  as  assistant  surgeons  with  the  rank  of  first  lieutenant, 
should  be  commissioned  as  captains,  and  those  who  may  hereafter 
serve  three  yeai-s  in  the  grade  of  first  lieutenant,  beginning  from  the 
date  in  which  the  office  of  fii*st  lieutenant  in  the  Medical  Reserve 
Corps  vested,  should  be  similarly  promoted  with  rank  from  date  three 
yeare  subsequent  to  that  in  which  the  appointing  power  was  fully 
exercised  in  each  case,  their  rank  on  the  list  of  captains  in  the  Medical 
Corps  being  determined  in  either  case  by  the  date  of  their  original 
entry  as  commissioned  officers  in  the  Medical  Department  of  the  Army. 
C.  23136,  May  21,  1908. 

I  B  1  d  (1).  Held  by  the  Secretary  of  War  that  a  chief  of  bureau 
appointed  by  the  President  for  a  term  of  four  years  may  lawfully  be 
reappointed  to  such  office.  Held  also  that  as  the  grant  of  rank  to  an 
officer  upon  reappointment  is  an  incident  of  the  constitutional  ap- 
pointing power,  such  chief  of  bureau  may,  on  reappointment,  be  given 
rank  back  to  the  date  of  his  first  appointment  as  chief  of  bureau.  C, 
14730,  Dec.  21, 1906. 

I  C  1.  The  requirements  of  the  act  of  February  2,  1901  (31  Stat. 
748) ,  which  operate  to  preserve  the  rank  of  Une  officers  while  they  are 
serving  by  detail  in  the  several  branches  of  the  staff,  are  so  clear  as  to 
negative  the  view  that  it  was  intended  that  during  such  periods  of 
detail  they  should  be  clothed  with  any  other  rank  or  a  different  status 
in  respect  of  rank  or  precedence  than  that  which  they  brought  with 
them  from  the  line  of  the  Army.^  C.  16686,  Jan.  8,  1904;  26677,  Oct, 
13,1909. 

I  C  2.  Where  an  officer  of  the  line,  serving  with  increased  rank  as  a 
detailed  officer  in  a  staff  department,  incurs  disability  while  so  serv- 
ing, held  to  be  entitled  to  retirement,  if  found  to  be  q^ualified  therefor 
by  a  retiring  board,  with  the  rank  of  the  office  in  which  he  is  serving 
in  the  detaHed  staff.^     C.  26677,  Oct.  16,  Dec.  16,  1909. 

1  See  16  Op.  Atty.  Gen.,  56,  605. 

^  Officers  detailed  in  the  Ordnance  Department  under  the  act  of  June  25,  1906  (34 
Stat.  455),  and  as  acting  judge  advocates  under  the  act  of  Feb.  2,  1901  (31  Stat.  751), 
may  be  selected  from  the  grade  next  below, 

^  The  Judge  Advocate  General 's  Department  and  the  Medical  and  the  Engineer 
Departments  are  excepted  from  the  operation  of  sec.  16  of  the  act  of  Feb.  2,  1901, 
covering  details  to  the  departments  named  in  that  section. 


966  RANK   T   D  1. 

I  D  1.  A  company  commander  on  duty  with  the  home  battalion  on 
July  1  appointed  a  private  to  the  position  of  corporal,  and  as  the  regi- 
mental headquarters  was  outside  the  limits  of  the  United  States  the 
battaUon  commander  acted  and  on  July  13  disapproved  the  appoint- 
ment. Held  that  the  private  became  a  corporal  on  July  1  and-held 
that  rank  and  was  entitled  to  pay  as  such  from  that  date  until  July  13. 
0.22846,  Nov.  11, 1907. 

I  D  2.  At  discharge  at  expiration  of  an  enlistment  a  noncommis- 
sioned officer  vacates  his  position  and  rank.  Held  that  a  reappoint- 
ment is  necessary  in  order  that  he  may  again  have  the  rank  which  he 
held  during  the  expired  enlistment.  Held,  further,  that  in  cases  of 
warrants  made  continuous  under  the  regulations  the  regulation 
operates  to  reappoint  a  soldier  to  the  position  vacated  by  him  at  ter- 
mination of  enlistment,  with  rank  antedated  to  the  same  date  that 
held  in  the  previous  enlistmeift.     C.  19959,  Nov.  19, 1910. 

I  D  3.  In  view  of  the  fact  that  rank  can  not  be  conferred  except 
by  act  of  Congress,  lield  that  under  the  act  of  July  7,  1898  (30  Stat. 
721),  which  created  the  grading  of  company  cooks  and  fixed  the  pay 
as  that  of  corporal,  but  did  not  specifically  attach  rank  to  that  posi- 
tion, the  rank  corporal  did  not  attach  to  the  position  of  company 
cook.     C.  21U3,  Apr.  26,  1907. 

I  D  4.  As  a  wairant  is  evidence  of  the  rank  held  by  a  noncommis- 
sioned officer,  held  that  if  a  warrant  is  lost  without  fault  of  the  non- 
commissioned officer  it  may  be  replaced  with  notation  placed  thereon 
assigning  rank  back  of  the  date  of  original  appointment  of  the  non- 
commissioned officer  to  the  grade  which  carries  the  rank  in  question. 
O.  25535,  Sept.  7,  1909. 

II  A.  The  general  rule  is  that  relative  rank  in  the  Army  is  regulated 
by  the  actual  rank  held  by  the  officer  in  his  corps  and  this  by  the  date 
given  him  in  his  commission  in  such  corps.^  P.  60,  210,  June,  1893, 
See  also  R.  15,  49,  Mar.  11,  1865;  21,  171,  Jan.  19,  1866;  23,  439, 
Apr.,  1867;  C.  18668,  Oct.  3,  1905. 

II  A  1.  Where  to  certain  appointments  made  on  the  same  date 
a  particular  order  was  given,  with  the  intention  of  having  the  ap- 
pointees rank  in  that  order,  but  subsequently,  in  sending  the  names 
to  the  Senate  for  confirmation,  this  order  was  by  mistake  reversed; 
held,  after  a  confirmation  of  the  appointees  as  thus  sent,  that  this 
mistake  and  action  could  properly  nave  no  effect  to  change  the  rela- 
tive rank  of  these  officers  as  given  a.nd  fixed  by  the  original  act  of 
appointment.     R.  42,  254,  Apr.,  1879. 

II  A  2.  Section  1219,  R.  S.,  provides  a  rule  for  determining  the 
relative  rank  of  officers  of  the  same  grade  and  date  of  appointment 
by  reference  to  time  of  service.  Held  that  the  time  of  service  as  a 
commissioned  officer  in  the  Army  is  alone  to  be  considered. ^  P.  40, 
51,  Mar.,  1890;  R.  B.  4I,  238,  May,  1878;  55,  672,  June,  1888;  0. 
2805,  Dec,  1896;  7449,  Dec,  1899;  7790,  Mar.,  1900;  7869,  Apr., 
1900;  15262,  Sept.  8,  1903;  16520,  June  29,  1904;  17381,  Jan.  13, 
1905. 

1  See  13  Op.  Atty.  Gen.  441;  16  Op.  Id.,  56,  605,  652;  17  Op.  Id.,  10,  12.  For  rule 
in  case  of  transfer  from  one  corps  to  another,  see  par.  47,  A.  R.,  1910  Ed.  Under  the 
provisions  of  the  act  of  Mar.  3,  1911  (36  Stat.  1058),  this  rule  is  departed  from  in  the 
case  of  certain  officers  advanced  under  that  act  and  known  as  "additional  officers." 

2  See  13  Op.  Atty.  Gen.,  441;  15  id.,  411;  17  id.,  34,  362,  and  402;  23  id.,  232. 


RANK  II  A   2  a.  &67 

n  A  2  a.  Two  ofRcers  of  the  Regular  Army  were  commissioned  as 
officers  of  Volunteers  in  1898  on  the  same  date.  Held  that  the  rela- 
tive rank  will  be  determined  by  reference  to  the  date  of  acceptance 
of  the  two  officers  of  their  original  commissions  upon  first  entry  into 
the  service.  C.  4254,  June  S,  1898;  7282,  Nov.  15,  1899;  7790,  Mar. 
8, 1900. 

II  A  3.  As  relative  rank  among  officers  of  the  same  grade  is  estab- 
lished by  referring  back  to  the  dates  when  actual  rank  attached  to 
the  offices  which  they  respectively  hold,  held  that  such  relative  rank 
of  two  officers  can  not  be  changed  except  by  act  of  Congress,  or  pur- 
suant to  the  sentence  of  a  general  court-martial,  or  an  exercise  or  the 
pardoning  power.^  C.  21054,  Feb.  6,  1907;  15262,  Sept.  8,  1903; 
22359,  Bee.  2,  1907;  24568,  June  27,  1911. 

II  A  3  a  (1).  A  second  lieutenant  was  sentenced  'Ho  retain  his 
present  number  on  the  lineal  list  of  second  lieutenants  for  three 
years."  Held  that  this  sentence  necessarily  deprived  him  of  all  right 
to  promotion  so  long  as  it  continued  in  force.  Lieutenants  junior  to 
him  may  be  advanced  without  any  regard  to  him  and  precisely  as  if 
he  were  not  on  the  list  at  all.  The  promotion  of  an  officer  in  such  a 
status  would  have  the  effect  of  a  pardon.     P.  47,  293,  May,  1891. 

II  A  3  a  (2).  A  lieutenant  was  sentenced  'Ho  be  reduced  two  files 
in  regimental  rank."  As  the  regimental  rank  of  a  line  officer  is  the 
basis  of  his  rank  m  his  arm  and  in  the  Army  at  large,  held  that  his 
reduction  on  the  regimental  list  involved  a  corresponding  reduction 
on  the  lists  of  lineal  and  relative  rank.     R.  55,  620,  June,  1888. 

II  A  3  a  (3).  An  officer,  as  the  result  of  two  successive  trials  by 
court-martial,  stood  sentenced  to  be  reduced  to  the  foot  of  the  list  of 
lieutenant  colonels  of  Cavalry  and  to  remain  there  without  advance- 
ment for  two  years.  Held  that  his  status  was  equivalent  to  that  of 
an  officer  sentenced  to  lose  files  for  two  years,  and  that  his  sentence 
was  a  continuing  punishment,  subject  to  be  discontinued  by  pardon. 
R.  51,  677,  Mar.,  1887.  And  further  held  that  such  a  sentence  was  a 
legal  one,  and  that  as  the  officer  had  no  rank  in  the  Army  independent 
of  his  rank  in  the  Cavalry  arm,  the  former  rank  being  incidental  to 
and  measured  by  the  latter,  his  relative  Army  rank  was  necessarily 
affected  by  the  sentence  in  the  same  manner  as  his  lineal  rank.  P.  29, 
487,  Jan.,  1889. 

II  A  3  b  (1).  A  sentence  of  a  first  lieutenant  'Ho  be  reduced  in  rank 
so  that  his  name  shall  appear  in  the  Army  Register  next  below  the 
name  of "  a  certain  other  first  lieutenant  of  his  regiment,  held  not  a 
punishment  executed  upon  approval,  so  as  to  be  beyond  remission, 
but,  like  a  sentence  to  lose  ffies,  a  continuing  punishment  removable 
by  pardon.2    p  qq^  j^gj^^  d^^.,  1892. 

IlA3b  (2).  In  1874  an  officer,  then  a  first  lieutenant,  was  sen- 
tenced 'Ho  be  reduced  in  rank  so  that  his  name  should  thereafter  be 
borne  on  the  rolls  of  the  Army  next  after  that  of  "  a  certain  other  first 
lieutenant  of  the  same  regiment.  This  officer  was  promoted  to  a 
captaincy  May  10,  1888,  and  the  officer  under  sentence  was  similarly 
promoted  August  20,  1889.  Upon  an  application  by  the  latter  (in 
1890)  to  have  his  sentence  remitted,  held  that,  by  the  operation  of  the 
first  of  these  promotions,  the  sentence  was  rendered  irrevocable. 
A  remission  or  pardon  would  not  at  this  time  restore  the  officer  to 

1  See  8  Op.  Atty.  Gen.,  223.        ^  ^2  Op.  Atty.  Gen.,  547;  17  id.,  17  and  656. 


968  EANK   II  A  3  C. 

the  position  he  occupied  prior  to  the  sentence,  nor  divest  the  rights 
of  others  acquired  by  promotion  during  the  pendency  of  his  reduc- 
tion. The  sentence  had  indeed  been  fully  executed  and  was  there- 
fore beyond  the  reach  of  the  pardoning  power.  P.  41,  880,  July, 
1890. 

II  A  3  c.  An  executive  department  has  in  general  no  power  either 
to  undo  an  executed  legal  act  of  the  past  or  to  indemnify  a  party  for 
injury  suffered  by  him  therefrom.  Thus  where  an  officer  claimed  that 
he  had  been  unjustly  prejudiced  by  not  having  had  a  higher  relative 
rank  in  his  grade  given  him  by  his  original  appointment,  but  it 
appeared  that  said  appointment  had  been  confirmed  by  the  Senate, 
accepted,  and  held  for  nearly  13  years,  and  that  to  increase  as  desired 
the  relative  rank  thereby  conferred  would  divest  the  rights  of  12 
officers  who  now  ranked  the  claimant  in  his  grade,  advised,  that  how- 
ever unjustly  his  appointment,  when  made,  may  have  discriminated 
against  this  officer,  his  case  was  one  in  which  Congress  alone  could 
grant  the  appropriate  relief.*     R.  43,  206,  Feb.,  1880. 

II  Bl.  The  act  of  March  3,  1899  (30  Stat.  1065),  appropriated 
money  for  the  pay  of  officers  of  certain  United  States  Volunteers  for 
a  certain  time  that  had  elapsed  after  they  had  reported  for  duty  and 
prior  to  their  being  commissioned.  Held\\\2i.i  this  time  should  not  be 
counted  in  fixing  relative  rank  under  section  1219,  R.  S.^  0.  7050, 
Sept.  21,  1899,  and  Oct.  6,  1900;  7869,  Apr.  7,  1900. 

II  B  2.  Held  that  the  relative  rank  of  volunteer  officers  mustered 
into  the  service  under  the  provisions  of  April  22,  1898  (30  Stat.  361), 
dated  from  the  date  of  appointment.     C.  4^39,  May  18,  1898. 

II  C  1 .  The  master  of  the  sword  at  the  United  States  Military 
Academy  is  an  officer  and  under  the  provisions  of  the  act  of  March  3, 
1905  (33  Stat.  850),  was  given  the  '^ relative  rank"  of  a  captain, 
mounted.     C.  18009,  Mar.  23,  1910. 

II  D.  Held  that  naval  cadets,  not  having  been  commissioned  offi- 
cers, could  not,  upon  afterwards  becoming  lieutenants  in  the  Army, 
compute,  for  relative  rank,  their  period  of  service  as  such  cadets. 
P.  25,  214,  June,  1888. 

III  A.  Under  the  provisions  of  section  2  of  the  act  of  June  18, 
1878  (20  Stat.  149),  and  the  act  of  October  1,  1890  (26  Stat.  562), 
all  officers  of  each  arm  of  the  service  are  placed  upon  one  list  in 
accordance  with  their  rank  in  the  several  grades  of  office  of  which 
that  arm  is  composed.  This  list  resulting  from  such  arrangement 
represents  their  Imeal  or  military  rank  and  serves  to  determine  their 
rights  in  respect  of  advancement  in  the  military  service.  Held  that 
a  sentence  'Ho  be  reduced  thirty  files  in  military  rank"  means  a  loss 
of  thirty  files  in  lineal  rank,  i.  e.,  it  means  that  an  officer's  name  will 
be  reduced  thirty  files  in  the  list  of  officers  of  his  grade  in  his  arm. 
C.  12440,  Apr.  30,  1902;  17201,  Dec.  1,  1904;  21249,  Mar.  15,  1907; 
21590,  May  31, 1907. 

^  The  authority  of  the  executive  department  of  the  Government  to  grant  relief  is 
limited  by  strict  law  and  to  a  few  subjects.  Congress,  in  our  system,  is  the  fountain  of 
general  relief.  By  its  authority  to  authorize  special  appointments,  and  to  dispose  of 
the  public  money,  it  can  meet  and  adeq^uately  provide  for  nearly  all  the  applications 
for  relief  presented  by  officers  and  soldiers  of  the  Army  which  the  Executive  is  not 
empowered  favorably  to  act  upon. 

2  Relative  rank  of  volunteer  officers  in  the  military  service  of  the  United  States 
under  sec.  1219,  R.  S.,  must  be  determined  by  reference  to  the  time  of  muster-in  and 
not  from  the  time  of  enrollment.    (23  Op.  Atty.  Gen.,  406.) 


BANK  IV  A.  969 

rV  A.  Brevet  rank  can,  properly,  neither  be  conferred,  nor  take 
effect,  excepUas  an  incident  to  full  rank  of  a  lower  grade.*  R,  21  y 
608,  Aug.,  1866;  C.  2122,  Mar.  10,  1896;  12419,  Apr.  I4,  1902. 

IV  B.  Under  section  1211,  R.  S.,  an  officer  may  legally  be  assigned 
to  duty  according  to  his  brevet  rank  for  a  special  command  or  duty, 
and  in  such  case  the  assignment  will  not  be  effective  generally,  but 
only  for  thepurposes  of  such  command  or  duty  and  during  its  con- 
tinuance. Thus  held  that  an  officer  assigned  to  duty  according  to  his 
brevet  rank  ''wliile  in  command  of"  a  certain  department,  could 
legally  exercise  the  authority  and  privileges  of  such  rank  only  when 
holding  such  command,  and  for  the  purposes  of  the  same.^  R.  ^2, 
21,  Oct.,  1878. 

IV  B  1.  Wlien  an  officer  has  been  duly  assigned  to  duty  or  com- 
mand according  to  a  certain  brevet  rank,  that  rank  becomes  his 
actual  military  rank  for  the  period  of  the  assignment.  He  is  empow- 
ered to  exercise  the  authority  which  belongs  to  such  rank  under  the 
circumstances,  to  wear  the  uniform,  and  to  be  addressed  by  the 
title  of  such  rank,  etc.  Held,  however,  that  a  colonel  assigned  to 
command  according  to  a  brevet  rank  of  general  was  not  entitled  to 
the  aids-de-camp  of  a  general  except  by  the  authority  of  the  Secre- 
tary of  War.     R.  42,  21,  Oct.,  1878. 

V  A.  Suspension  from  rank  does  not  deprive  the  officer  of  the 
right  to  rise  in  files  in  Ids  grade,  upon  the  promotion,  for  example,  of 
the  senior  officer  of  such  grade.  The  number  of  an  officer  in  the 
list  of  his  grade  is  not  an  incident  of  his  rank,  but  of  his  appointment 
to  office  as  conferred  and  dated,  and,  as  we  have  seen,  suspension  does 
not  affect  the  ojfice.  Moreover  loss  of  files  is  a  continuing  punish- 
ment, and  if  held  to  be  involved  in  suspension  from  rank,  the  result 
would  be  that,  for  an  indefinite  period  after  the  term  of  suspension 
had  expired,  the  officer  would  remain  under  punishment,  the  sen- 
tence imposed  by  the  court  being  thus  added  to  m  execution,  contrary 
to  a  well-known  principle  of  military  law.     R.  33,  69, 109,  June,  1872. 

V  B.  It  is  the  effect  of  a  suspension  from  rank  that  the  officer 
loses  for  the  time  the  minor  rights  and  privileges  of  priority  and 
precedence  annexed  to  rank  or  command.  Among  these  is  the  right 
to  select  quarters  relatively  to  other  officers.  And  where  quarters 
are  to  be  selected  by  several  officers,  one  of  whom  is  under  sentence 
of  suspension  from  rank,  the  suspended  officer  necessaril}/-  has  the  last 
choice.  Or  rather  he  has  no  choice,  but  quarters  are  assigned  him  by 
the  commander;  for,  being  still  an  officer  of  the  Army,  though  without 
rank,  he  is  entitled  to  some  quarters.  But  advised  that  an  officer  sen- 
tenced to  be  suspended  from  rank  could  not,  because  of  such  suspen- 
sion alone,  be  deprived  of  quarters  previously  duly  selected  and 
occupied  at  the  time  of  the  suspension,  such  a  sentence  not  affecting 
a  right  previouslv  accrued  and  vested.^  R.  27,  24I,  Sept.,  1868;  29, 
672,  Feh.,  1870;  37,  536,  Maij,  1876;  P.  50,  371,  Nov.,  1891. 

^  See  13  Op.  Attv.  Gen.,  31. 

2  But  see  now  act  of  March  3,  1883  (22  Stat.  457),  which  provides  that  officers  of 
the  Army  shall  be  assigned  to  duty  or  command  according  to  their  brevet  rank,  only 
when  actually  engaged  in  hostilities. 

^  But  the  Secretary  of  War  decided.  May  27,  1876,  that  an  officer  under  suspension 
is  not  deprived  of  his  usual  right  to  quarters  according  to  rank.  This  was  reaffirmed 
by  the  War  Department  in  1892.    See  Par.  VII,  Circ.  1,  A.  G.  O.,  1892. 


970  RANK — RECEIVER. 

V  C  1 .  Held  that  when  an  officer  fails  in  his  examination  for  promo- 
tion under  the  act  of  October  1, 1890  (26  Stat.  562),  with  the  resultant 
effect  of  suspension  from  rank  for  one  year,  the  suspension  will  date 
from  the  date  when  the  right  to  promotion  accrued.  C.  29327,  Dec. 
19,1911. 

CROSS   REFERENCE. 

Acquisition  of. See  Command  I  A  1. 

Chief  of  Philippine  Constabulary See  Command  I  C. 

Contract  surgeon See  Army  I  G  3  d  (4)  (c). 

Deserter  is  a  ^^private" See  Desertion  VII  A  1. 

Distinguished  from  command See  Command  I  C. 

Loss  of See  Discipline  XII  B  3  f  (1)  to  (3)  (c);  XIV 

E9k. 

Muster-out See  Volunteer  Army  IV  E. 

Nunc  pro  tunc See  Pay  and  allowances  I  B  1  a. 

Pardon  of  loss  of See  Pardon  IV  to  V. 

Regular  and  militia  officers See  Militia  VI  B  2  b. 

Retired  officer,  rank  increased See  Retirement  I  C  to  D. 

Retirement See  Retirement  I  B  4  to  5. 

Suspension See  Absence  I  B  1  m  (1). 

Discipline  VIII  G  1  c;  c  (1);  XII  B  3 
f(3)(a);(b);(c). 

Office  III  Bla  (2);  (3). 

Retirement  I  B  6  c  to  d. 
Unauthorized  assumption See  Articles  of  War  LXII  D. 

RATIONS. 

See  Army  I  G  3  b  (3)  to  (4). 

Civilian  employees See  Laws  II  A  1  e  (1). 

Destitute  persons See  Gratuity  IV. 

Laws  II  A  1  e  (1). 

READVERTISEMENT. 

Rejection  of  bids See  Contracts  VI  J  1. 

REAL  PROPERTY. 

See  Puplic  Property  I  A  3. 
Can  not  be  alienated See  War  I  C  6  a  (2). 

REAPPOINTMENT. 

Cadets Se- Army  I  D  1  d  (1)  to  (3);  2  b. 

Dismissed  officer See  Office  III  A  4  c;  F  1;  IV  E  2  c  (2). 

Is  not  pardon See  Pardon  XV. 

REASONABLE  DOUBT  RULE. 

Retiring  hoards See  Retirement  I  B  2  e. 

RECEIPTS. 

Blanh  not  to  he  given See  Pay  and  allowances  I  B  3. 

Private  property  taken See  Claims  VII  B  5. 

RECEIVER. 

Bidder See  Contracts  XXXVII. 

Bridge  company See  Navigable  waters  IV  D. 

Contractor See  Contracts  XIV  F. 


BECOMMENDATION — RED   CROSS  I.  971 

RECOMMENDATION. 

By  court See  Discipline  XI  All;  11  a;  XII  E  to  F. 

Medal  of  honor See  Insignia  of  merit  I  A  2  a;  d;  d  (1). 

RECORDER. 

Court  of  inquiry See  Retirement  I  K  2  e. 

Retiring  board See  Retirement  I  B  1  d  (2). 

RECORD  OF  GENERAL  COURT-MARTIAL. 

See  Discipline  IV  C  3  to  4;  XIII  to  XIV. 

Copy  to  accused See  Article  op  War  CXIV  A. 

Correction  of See  Discipline  IX  N  6;  6  a;  b. 

Evidence  of See  Discipline  XI  A  13. 

Lost See  Discipline  XIV  E  6;  XV  G  1. 

Pay  and  Allowances  III  C  1  e  (1). 

Reasons  for  returning See  Discipline  XIV  E  4  to  5. 

Transmission  of. See  Discipline  IV  M. 

RECOVERY. 
Public  property See  Militia  IX  F. 

RECRUIT. 

Clothing,  abandoned See  Public  Property  I  L. 

Muster  of  is  not  muster  in See  Volunteer  Army  II  B  1  a. 

Running  away See  Desertion  XXII  A. 

Statement  of  age See  Enlistment  I  A  2  a. 

RECRUITING  OFFICER. 

Deserter,  receipt  of. See  Desertion  V  B  8  a;  b;  9;  F  10  a;  b. 

Penalty  envelopes See  Communications  II  A  2  a. 

RED  CROSS.i 

I.  AS  AN  INTERNATIONAL  EMBLEM. 

A.  International  Use  Differentiated  from  Domestic  Use Page  971 

B.  Purpose  of  Geneva  Convention  and  Scope  Thereof  in  Regard  to 

Civil  Volunteer  Sanitary  Formations Page  972 

C.  Red  Cross  Has  No  International  Value  Except  by  Treaty. 

D.  No  Authority  for  Charitable  Organizations  to  Penetrate  Foreign 

Country  Except  With  Consent  of  Latter' s  Government. 
n.  AMERICAN  NATIONAL  RED  CROSS. 

A.  Rights  of,  in  Time  of  Peace Page  973 

B.  Status  of,  in  Peace  or  in  War.     Duty  of  the  Government  in  Con- 

nection Therewith. 

C.  Duty  of  Military  Where  Emblem  is  Misused. 

I  A.  In  considering  questions  affecting  the  use  of  the  Red  Cross 
or  Geneva  emblem  care  must  be  taken  to  differentiate  between  the 
use  of  the  emblem  under  the  international  rules  of  the  Geneva  Con- 
vention and  its  use  under  the  charter  granted  by  the  Congress  to  the 

^  Prepared  by  Lieut.  CoL  John  Biddle  Porter,  judge  advocate,  assistant  to  the 
Judge  Advocate  General,  United  States  Army. 


972  RED   CROSS  IB. 

American  National  Red  Cross,  act  of  January  5,  1905  (33  Stat.  599), 
amended  by  act  of  June  23,  1910  (36  Stat.  604).  C.  16453,  June  7, 
1911. 

I  B.  The  main  purpose  of  the  Geneva  Convention  is  to  ameliorate 
the  condition  of  the  wounded  of  armies  in  the  field  and  is  intended  to 
cover  the  case  of  nations  at  war.  For  this  purpose  the  convention 
has  adopted  the  Red  or  Geneva  Cross  as  an  emblem  of  neutrality  to 
be  used  only  to  protect  those  persons  and  things  which,  under  the 
convention,  are  to  be  deemed  neutral  and  devoted  to  the  care  and 
comfort  of  the  sick  and  wounded.  It  is  provided  that,  under  the 
auspices  of  a  government,  civil  sanitary  formations  may  be  authorized 
for  use  in  war,  and  for  the  purpose  of  being  distinguished  shall  use 
the  Geneva  Cross  in  the  same  manner  as  the  regular  military  or 
naval  sanitary  formations  of  the  Government.  It  is  also  agreed,  in 
furtherance  of  the  general  purpose  of  ameliorating  the  condition  of 
the  sick  and  wounded,  that  the  civil  sanitary  formations  of  a  neutral 
nation  may,  with  the  consent  of  their  own  government,  offer  their 
services  to  a  belligerant  power,  and  if  accepted  by  such  belHgerent, 
assist  in  caring  for  the  sick  and  wounded  of  those  at  war.  It 
follows  that  where  such  civil  organizations  of  a  neutral,  with  the 
consent  of  their  own  government,  offer  their  services  to  a  belligerent 
power  and  these  are  accepted  by  that  power,  they  become,  for  the 
time  being,  a  part  of  the  sanitary  establishment  or  its  army.  Thus, 
in  order  that  a  civil  organization  may,  by  international  law,  serve, 
under  the  Geneva  emblem,  a  foreign  belligerent  power,  there  must 
be  consent  of  the  home  government  and  acceptance  by  the  foreign 
belligerent.  Such  civil  organization  is  then  only  entitled  to  the  same 
protection  under  the  Red  Cross  as  are  the  orgamzations  of  the  belUg- 
erent  with  whom  they  are  serving,  and  should  one  of  the  powers  at 
war  not  have  acceded,  to  the  Geneva  Convention,  the  volunteer  civil 
neutral  sanitary  formation  is  no  more  protected  by  the  Geneva  Red 
Cross  than  are  the  sanitary  formations  of  the  power  with  which  they 
are  serving.     C.  16453,  June  7,  1911. 

I  C.  From  the  point  of  view  of  international  law  the  emblem  of 
the  Red  Cross  has  no  value  or  meaning  except  that  wliich  has  been 
placed  upon  it  by  treaty.  The  emblem  was  first  created  by  the 
Geneva  Convention  of  1864,  the  rules  established  for  its  use  having 
been  brought  up  to  date  at  the  conference  of  1906,  also  held  at  Ge- 
neva. Each  nation  which  accedes  to  that  convention  thereby  enters 
into  a  treaty  with  each  of  the  other  nations  who  have  acceded,  to 
carry  out  and  respect  the  terms  of  the  convention.  The  United  States 
has  acceded,  the  President  having  so  proclaimed  on  August  3,  1907. 
Except  as  between  the  acceding  nations  there  is  no  requirement  of 
international  law  that  the  Red  Cross  shall  be  recognized  or  respected. 
C.  16453,  June?,  1911. 

I  D.  There  is  clearly  no  authority  for  a  charitable  organization  to 
penetrate  a  country  at  peace  with  its  own,  for  the  purpose  of  render- 
mg  aid  to  the  wounded  during  a  war  in  that  country,  except  it  be 
with  the  full  consent  of  a  belligerent  operating  therein.  Should  such 
charitable  organization  penetrate  into  a  foreign  country  under  any 
other  conditions  than  those  established  by  the  Geneva  Convention, 
no  value  whatever  attaches  in  international  law  to  its  use  of  the 
Geneva  Cross.     Whatever  protection  that  emblem  may  insure  under 


BED  CROSS  II  A.  973 

such  circumstances  must  be  due  to  the  municipal  laws  of  the  country 
penetrated.  The  entry  of  the  American  National  Red  Cross  into 
Mexico  during  the  civil  troubles  in  that  country  in  the  vear  1911,  the 
Mexican  Government  not  having  accepted  the  tender  of  service  made 
l)y  the  or":anization,  would  be  an  instance  of  such  unauthorized  en- 
t  ranee  and  the  members  of  the  American  National  Red  Cross  entering 
Mexico  would  not  be  entitled  to  the  protection  contemplated  by  the 
Geneva  Convention.     0.  16453,  June  7,  1911. 

II  A.  The  American  National  Red  Cross  has  under  its  charter  the 
right,  in  time  of  peace,  to  continue  and  carry  on  a  system  of  national 
and  international  relief  and  apply  the  same  in  mitigating  the  suffer- 
ings caused  by  pestilence,  famine,  fire,  floods,  and  other  great  national 
calamities,  tinder  paragraph  3,  section  4  of  the  charter,  the  Red 
(Voss  would  appear  to  be  entitled  to  all  proper  assistance  from  the 
Army,  but  it  must  be  remembered  that  the  international  status 
granted  by  the  Geneva  Convention  to  the  Red  Cross  is  intended 
solely  for  the  amelioration  of  the  condition  of  the  wounded  of  armies 
in  the  field.     C.  16453,  June  7, 1911. 

II  B.  Under  the  charter  of  the  American  National  Red  Cross, 
granted  to  that  organization  by  Congress  (act  of  Jan.  5,  1905,  33 
Stat.  599,  and  act  of  June  23,  1910,  36  Stat.  604),  the  use  of  the 
Red  Cross  emblem  under  certain  circumstances  and  for  certain  pur- 
poses is  forbidden  and  made  a  misdemeanor,  punishable  in  a  Fed- 
eral court  by  fine  and  imprisonment.  The  foregoing,  it  will  be 
observed,  however,  is  a  municipal  law  of  the  United  States  and  can 
in  nowise  affect  the  conduct  of  a  person  outside  of  that  country. 
Where,  in  time  of  peace,  in  the  presence  of  the  military  forces  of  the 
United  States,  a  misuse  is  maae  of  the  Red  Cross  emblem  such  as 
has  been  determined  by  Congress  to  amount  to  a  misdemeanor,  it  is 
not  the  duty  of  the  military  to  exercise  any  other  authority  than 
would  be  exercised  by  them  in  the  case  of  any  other  misdemeanor 
by  a  civilian.  In  case  of  a  war,  however,  in  which  the  United  States 
is  a  participant,  it  will  be  for  the  Federal  Government  to  see  that  any 
aid  society  operating  with  our  armies  conforms  to  the  requirements 
of  the  Geneva  Convention  and  to  the  laws  and  regulations  govern- 
ing the  conduct  of  those  who  are  operating  with  the  armies  of  the 
United  States.  (Art.  10,  Geneva  Convention  of  1906.)^  C.  16453, 
June  7,  1911. 

II  C.  Within  the  jurisdiction  of  the  United  States  it  is  a  mis- 
demeanor for  a  person  to  falsely  represent  himself  as  a  member  of 
or  an  agent  for  tne  American  National  Red  Cross  for  the  purpose  of 
sohciting,  etc.,  money  or  material,  or  for  any  person  to  wear  the  Red 
Cross  or  an  imitation  thereof  for  the  fraudulent  purpose  of  inducing 
the  belief  that  he  is  a  member  of  or  an  agent  for  the  American  Na- 
tional Red  Cross  (36  Stat.  604).  The  military  authorities,  however, 
would  have  no  right  to  arrest  such  a  misdemeanant  and  are  charged 
with  no  greater  duty  in  regard  to  him  than  would  be  any  citizen; 
that  is,  to  lodge  information  in  regard  to  the  alleged  misdemeanor 
with  the  nearest  peace  officer  or  other  person  charged  with  the 
enforcement  of  the  criminal  law.     C.  16453,  June  7,  1911. 

^  See  proclamation  of  the  President,  Aug.  22,  1911,  published  in  G.  O.,  No.  170, 
W.  D..  1911.  »       5       »  >  1- 


974  KEDETAIL — KEGULAR  AEMY. 

REDETAIL. 

See  Office  III  D  1  d;  2  b. 

Bureau  chief. See  Rank  I  B  1  d  to  e. 

College  duty See  Military  instruction  II  B  1  e. 

Ordnance  department See  Army  I  G  3  b  (4)  (c). 

REDUCTION  TO  THE  RANKS. 

See  Articles  of  War  LXXXIII  C  2. 

See  Discipline  XII  B  3  f  (1)  (a). 

Noncommissioned  officer See  Army  I  E  1  b. 

Unauthorized  for  officers See  Discipline  XVII  B  2  a  (1). 

REENLISTMENT. 

See  Desertion  VI  A  to  D. 
See  Enlistment  I  D  to  II. 

Bonus  for See  Pay  and  allowances  I  C  5  c. 

Deserter See  Discharge  II  B  2  a. 

Pardon  XIV. 
Pay  not  stopped  or  forfeited  to  reimburse  See  Pay  and  allowances  III  B  6  a;  C  1 

previous  claim.  a  (2). 

Voluntary See  Enlistment  I  A  1 

REEXAMINATION. 
Failure See  Retirement  I  B  6  c  to  e. 

REGIMENTAL  COMMANDER. 

See  Post  commander. 

See  Commanding  officer. 

Appointing  power See  Command  V  C  1  a;    b;    c. 

Rank  I  D  to  E. 
Authority  to  reduce  noncommissioned  offi-  See  Command  V  C  2. 
cers. 

Brigade  post See  Articles  of  War  LXV  B. 

Certificate  of  merit See  Insignia  of  merit  II  B  ;  E.  • 

Convening  officer See  Articles  op  War  XXX  C. 

Exceeds  authority See  Articles  of  War  XXIX  A. 

Reports  on  officers, See  Articles  of  War  XXIX  B. 

REGIMENTAL  COURT. 

See  Articles  of  War  XXX  A  to  D. 
See  Discipline  XVI  A  1;  E  5. 

REGIMENTAL  STAFF  OFFICER. 
Appointment  of. See  Command  V  C  1  a. 

REGULAR  ARMY. 

See  Army  I  G  to  H. 

Joint  encampment See  Militia  II  A ;  B ;  VI  B  2  to  C. 

Philippine  duty See  Army  II  G  2  a;  a  (1). 

Philippine  Scouts See  Articles  of  War  LXXVII  A  1. 

Army  II  G  1  a. 

Tenure  of  office See  Office  III  G. 

Volunteer  engineers See  Volunteer  Army  III  A  1. 


REGULATIONS — REMOVAL  OF   CHARGE  OF   DESERTION.  975 

EEGULATIONS. 

See  Laws  II  to  III. 

Extra  statutory  limitation See  Insignia  op  merit  I  A  2  d. 

Force  of  law See  Volunteer  Army  IV  A  1. 

Mandatory See  Discipline  III  A. 

Statute  can  not  be  abridged See  Army  I  B  2  f . 

Statute  can  not  be  contravened See  Army  I  D  3  b  (1). 

Unwarranted  quasi  legislation  by See  Insignia  of  merit  II  F. 

REIMBURSEMENT. 

Allies  for  loan See  War  I  C  6  d  (1). 

Damaqe  to  public  property See  Pay  and  allowances  III  B  5. 

Illegal  forfeiture See  Pay  and  allowances  III  E  1. 

Militia  officer See  Militia  VI  B  1  e  (7);  (8). 

Overpayment See  Government  agencies  II  J  7. 

Private  parties,  disbursements  of,  to  destitute  See  Gratuity  IV. 
persons. 

Public  property  I  A  5. 

Service  by  allies See  Claims  VII  B  6. 

Soldier,  of  expense See  Articles  op  War  LIX  Gib. 

Transportation  of  horse See  Pay  and  allowances  II  A  2  a  (2)  (a) 

[1]. 
Unauthorized  to  cancel  private  debt See  Pay  and  allowances  III  B  6. 

REJECTION  OF  BIDS. 

See  Contracts  VI  J  to  K. 

RELATIVE  RANK. 

See  Rank  II  to  III. 
Medical  Department See  Rank  I  B  1  c  (2)  (a). 

RELEASE. 

Bidder See  Contracts  IX  to  X. 

From  contract See  Contracts  VIII. 

RELIEVING  THE  ENEMY. 

See  Articles  of  War  XLV  to  XLVI. 

RELIGIOUS  SECTS. 

Exemption  from  service See  Enlistment  II  B  2. 

REMISSION. 

By  sumTnary  discharge See  Pardon  XIII. 

Forfeiture See  Pay  and  allowances  III  El. 

Grounds  for See  Discipline  XV  F  to  G. 

Pardon  VI. 

Prisoner  of  war See  War  I  C  11  c  (5)  to  (6). 

Sentence See  Discharge  II  B  2. 

Pardon  VI,  XVI. 

REMOVAL  OF  CHARGE  OF  DESERTION. 

See  Desertion  V  B  5;  XIV  A  7;  XVI  A 
toF. 


976  BEMUSTEB — RESIDENCE  I. 

EEMUSTER. 

See  Volunteer  Army  II  F  to  G. 
RENT. 

See  Claims  VII  C  1. 

From  assignee See  Public  property  VII  B  1  a. 

Nonpayment  of. See  Public  property  VII  B  1  b;  2  b;  e. 

To  enemy. .: See  Pardon  X. 

REPAIR. 

Public  property See  Militia  IX  E. 

REPORTER. 

Appointment  of,  for  court See  Discipline  I V  B  2 ;  2  a. 

Claims  for  pay See  Army  I  G  3  a  (4)  (a)  [3]. 

Court  of  inquiry  or  hoard See  Discipline  XVIII  D. 

Duties See  Discipline  IV  C  3  a. 

Swearing  of See  Discipline  IV  C  4  a. 

REPORTS. 

Congressional  committees See  Laws  I  B  6. 

REPRIMAND. 

See  Discipline  XII  B  3  d. 
By  reviewing  authority See  Discipline  XIV  E  9  i;  1. 

REPUDIATION. 
Of  contract See  Contracts  XXII  to  XXIII. 

RESIDENCE. 

I.  DOMICILE  AT  ENTRY  INTO  SERVICE Page  976 

A.  Not  Lost  by  Entry  into  Service Page  977 

1.  Intention  to  return  is  presumed. 

B.  Change  of  Domicile. 

1.  What  action  required? Page  978 

n.  OF  MINOR. 

A.  Unemancipated. 

B.  Emancipated. 

I.  In  the  case  of  an  officer  or  enlisted  man  in  the  mihtary  estabHsh- 
ment,  held  that  his  domicile  during  his  continuance  in  the  service  is  the 
domicile  or  residence  which  he  had  when  he  received  his  appointment 
as  an  officer  or  entered  into  an  enlistment  contract  with  the  United 
States.  This  is  true  whether  such  domicile  was  original,  i.  e.,  estab- 
lished by  nativity,  or  by  residence  with  the  requisite  intention,  or  de- 
rivative, as  that  of  a  wife,  minor,  or  dependent.  This  residence  or 
domicile  does  not  change  while  the  officer  remains  in  the  military  ser- 
vice, as  his  movements  as  an  officer  are  due  to  military  orders;  and 
his  residence,  so  long  as  it  results  from  the  operation  of  such  orders,  is 


RESIDENCE   I  A.  977 

constrained,  a  form  of  residence  which  works  no  change  in  domicile.^ 
C.  12023,  Apr.  28,  1911;  P.  60,  223,  June,  1893. 

I  A.  A  person  in  the  miUtary  service  of  the  United  States,  is 
entitled  to  vote  where  he  has  his  legal  residence  provided  he  lias  the 
quaUfications  prescribed  by  the  laws  of  the  State.  He  does  not  lose 
such  residence  by  reason  of  being  absent  in  the  service  of  the  United 
States.  The  laws  of  a  particular  State  in  which  he  is  stationed  and 
has  only  a  temporary  as  distinguished  from  a  legal  residence  mav,  how- 
ever, permit  him  to  vote  in  that  State  after  a  certain  period  oi  actual 
residence.  C.  472,  Oct.,  1894  and  601,  Nov.,  1894;  ^877,  Feb.  23, 1898; 
14852,  June  25,  1903;  15367^  Oct.  I4,  1903. 

I  A  1 .  If  a  legal  residence  m  a  certain  State  has  once  existed,  mere 
temporary  absence,  however  long  continued,  as  the  result  of  an  enlist- 
ment or  enUstments  in  the  Army,  will  not  destroy  it.^  R.  50,  392, 
June,  1886.  Liability  to  taxation  or  other  liability,  as  a  resident  of  a 
certain  locality,  is  not  ordinarily  affected  by  the  enlisting  or  holding 
of  a  commission  in  the  Army  and  the  being  stationed  at  a  place  other 
than  such  locality;  the  party  being  at  such  place  not  by  his  own  voli- 
tion, and  the  animus  revertendi  to  the  original  domicile  being  presumed 
to  still  subsist.^    R.  55,  623,  Jan.,  1888;  C.  14852,  June  25, 1903. 

I  B.  An  officer  may,  however,  establish  a  new  legal  residence  or 
domicile  where  he  is  stationed,  although  as  he  is  subject  to  orders, 
the  evidence  of  such  intention  should  be  clear  and  convincing,  such  as 
the  acquisition  of  real  property  for  a  home,  with  the  intention  of  living 
there  whenever  not  required  to  be  elsewhere  under  military  orders.* 
C.  21091,  Feb.  I4,  1907.  In  the  cases  of  officers  who  are  not  subject, 
or  likely,  to  have  their  places  of  habitancy  changed  by  superior  mili- 
tary authority,  such  as  the  chiefs  of  the  staff  corps  or  departments, 
whose  duties  require  them  to  have  their  offices  permanently  in  Wash- 
ington, less  evidence  of  intention  is  required.  This  is  also  true  as  to 
officers  on  the  retired  list.     The  question  of  residence,  where  it  is  ^at 

^  Graham  v.  Commonwealth  (51  Pa.  St.,  258);  Wood  v.  Fitzgerald  &  Wingate  (3  Ore- 
gon, 568);  G.  0. 13,  First  Mil.  Dist.,  1868;  Taylor?;.  Reading,  (4Brew8t.,439);  Delvinz;. 
Anderson  (38  Cal.,  92).  "Soldiers  of  the  United  States  do  not  acquire  or  lose  their 
residence  by  reason  of  being  stationed  in  the  line  of  duty  at  any  particular  place,  no 
matter  how  long  their  occupancy  of  such  place  may  continue."  Mead  v.  Carrol 
(6  D.  C,  338);  People  v.  Holden  (28  Cal.,  123);  Hunt  v.  Richards  (4  Kans.,  549); 
Inhabitants  of  Brewer  v.  Inhabitants  of  Linnaeus  (36  Maine,  428);  Tibbetts  v.  Town- 
send  (15  Abb.  Prac,  221). 

2  Brewer  v.  Linnaeus,  36  Maine,  428. 

^  Jacobs,  Law  of  Domicile,  401. 

*  Beale  Cases  on  Conflict  of  Laws,  vol,  1,  p.  168,  where  the  following  extract  is  taken 
from  Attorney  General  v.  Pottinger  (6  H,  &  N.,  833,  744  (1861)),  where  the  question 
was  whether  Sir  Henry  Pottinger  at  the  time  of  his  decease  was  domiciled  in  England 
or  in  India:  "The  only  doubt  arises  from  this,  that  he  continued  in  the  service  of  the 
East  India  Company,  and  might  have  been  called  upon  at  any  time  to  serve  in  India. 
*  *  *  I  think  that,  notwithstanding  Sir  Henry  Pottinger  continued  in  the  Indian 
Army,  his  purchase  of  a  dwelling  house  in  Eaton  Place,  his  continuing  to  hold  it  whilst 
absent  from  England,  his  return  to  it  as  his  place  of  residence  and  his  home,  and  his 
reference  to  it  in  his  will  as  his  residence,  abundantly  establishes  his  English  domi- 
cile." See  also  14  Cyc,  849,  as  follows:  "In  general  it  can  be  said  that  a  domicile 
is  neither  gained  nor  lost  during  military  service,  and  although  a  soldier,  if  both  the 
fact  and  intent  occur,  can  establish  a  new  domicile  during  his  term  of  enlistment,  this 
will  not  be  deemed  to  have  occurred  in  the  absence  of  the  clearest  and  most  unequivo- 
cal proof .  No  domicile  will  be  acquired  merely  from  having  been  stationed  in  the  line 
of  d\ity  at  any  particular  place." 

31106°— 12 62 


978  RESIDENCE RESTORATION   TO   DUTY   WITHOUT   TRIAL. 

all  doubtful,  will  in  the  main,  as  in  the  cases  of  civilians,  be  deter- 
mined by  the  evidence  of  an  animus  manendi,  as  exhibited  by  the  acts 
and  declarations  of  the  party.  R.  29,  85,  July,  1869;  SO,  215,  528, 
Mar.  and  July,  1870. 

I  B  1 .  An  officer  who  has  resided  elsewhere  can  not  make  a  certain 
place  his  residence  by  merely  declaring  that  it  is  so,  or  that  he  has 
elected  it  to  be  such.  He  must  take  some  definite  action  indicating 
an  intention  and  an  ability  to  permanently  remain,  such  as  providing 
himself  with  a  dwelling  there,  removing  his  family  there,  entering 
into  business  there,  etc.,  to  constitute  the  place  designated  his  legal 
residence  or  domicile  in  law.  P.  53,  443,  May,  1892;  C.  21091,  Feb., 
14,  1907. 

II  A.  Held  that  an  unemancipated  minor  can  not  acquire  a  resi- 
dence different  from  that  of  his  father. ^  C.  1220,  Apr.,  1895;  6615, 
Dec.  23,  1910,  Feb.  24  and  Mar.  6,  1911. 

II  B.  Held  that  an  emancipated  minor  can  acquire  a  bona  fide  actual 
residence  different  from  that  of  his  father.     C.  6615,  June  17, 1899. 

CROSS   REFERENCE. 

Cadets See  Army  I  D  1  a  to  b. 

Retired  officer See  Retirement  I  O. 

Retired  soldier See  Retirement  II  B  4  to  5;  7. 

Taxation See  Tax  I  E. 

RESIGNATION. 

Affects  status See  Discipline  VIII  II;  la. 

Cadet See  Army  I  Did  (1). 

Civilian  employee See  Civilian  employees  XI  A  to  B;  B  2. 

Good  of  the  service See  Office  IV  D  6. 

Office See  Office  IV  D  to  E. 

Officer See  Discharge  II  A  2. 

RESTORATION  OF  OFFICER. 

By  appointment  only See  Office  III  F  1. 

To  Volunteers See  Office  V  A  3  to  4. 

RESTORATION  TO  DUTY. 

While  under  sentence See  Pardon  XV  D  1 ;  3. 

RESTORATION  TO  DUTY  WITHOUT  TRIAL 

See  Discipline  III  E  2  a. 
See  Pardon  XV  D  2;  2  a;  4. 

Constructive  pardon See  Desertion  IX  N ;  XV  D. 

Discipline  IX  F  1  a  (1). 

Charge  of  desertion  not  removed See  Desertion  XVI  E. 

Deserter See  Desertion  VI  A;  XII  A  to  B;  XIV 

A3. 
Discharge  II  B  2. 
Enlistment  I  D  3  c  (7);  (14). 

Effect  of See  Retirement  II  A  1  b;  1  c. 

Fraudulent  enlistment See  Enlistment  I  A  9  f  (1). 

Fraudulently    enlisted    dishonorably    dis-  See  Enlistment  I  A  9  f  (4);  g  (1);  (3);  h. 
charged  soldier. 

Fraudulently  enlisted  general  prisoner See  Enlistment  I  A  9  f  (3). 

Illegally  dishonorably  discharged  soldier See  Discharge  XVI  G;  G  1;  5. 

Make  good  time  lost See  Articles  of  War  XLVIII  A. 

^  The  act  of  Mar.  1,  1843  (5  Stat.  606)  requires  the  individual  selected  for  appoint- 
ment to  the  Military  Academy  to  be  an  actual  resident  of  the  District.  (See  also  13  Op. 
Atty.  Gen.,  130). 


BETAINED  PEKCENTAGES — RETIREMENT:   SYNOPSIS.  979 

RETAINED  PERCENTAGES. 
Forfeiture See  Contracts  XIX  C. 

RETAINERS  TO  THE  CAMP. 

See  Articles  op  War  LXIII  A  to  E. 

RETALIATION. 
Laws  of  War See  War  10  9. 

RETENTION    IN    SERVICE    AFTER    ORGANIZATION    MUSTERED 

OUT. 

See  Volunteer  Army  IV  C  to  D, 
Date  of  muster  out See  Volunteer  Army  IV  D  2  to  3;  3  b. 

RETIRED  OFFICER. 

Civil  office,  eligibility  for See  Retirement  I  G  3  to  4. 

Contract  with  Post  Office  Department See  Contracts  XV  C, 

Forage See  Army  I  G  3  b  (2)  (c). 

In  military  service See  Retirement  I  G  2  to  3. 

Claims  X. 

Instructors  at  colleges See  Military  instruction  II  B  1  a;  4  f. 

Militia  duty See  Militla.  VI  A  2  b. 

Militiaman See  Militia  XI  L. 

Public  office  not  exercised Sec  Retirement  I  G. 

Taxation See  Tax  I  to  II. 

RETIRED  SOLDIER. 

Certificate  ofm^rit See  Insignia  op  merit  XX  E. 

Commission  in  militia See  Militia  III  K. 

Does  not  hold  office See  Claims  X, 

Musician. See  Army  bands  I  C  4. 

Taxation See  Tax  I  to  II. 

RETIREMENT. 
I.  OFFICERS. 

A.  Voluntary. 

1.  30  years'  service. 

a.  Date  of Page  983 

b.  Count  service  United  States  Military  Academy. 

c.  Midshipman  service  does  not  count. 

2.  40  years'  service. 

a.  Count  service  United  States  Military  Academy. 

B.  Involuntary. 

1.  Retiring  board. 

a.  Acquired  disability. 

(1)  In  volunteers. 

(2)  As  an  enlisted  man. 

b.  Reasons  for  retirement. 

(1)  Can  not  be  retired  for. 

(a)  Moral  obliquity Page  984 

(b)  Future  contingent  incapacity. 

c.  Jurisdiction  of  board. 

(1)  Not  limited  as  to  time. 

(2)  Taking  of  depositions. 

(3)  Charge  can  not  be  tried. 

(4)  Officer  present. 


980  retirement;  synopsis. 

I.  OFFICERS— Continued. 

B.  Involuntary — Continued. 

1.  Retiring  board — Continued. 

d.  Procedure. 

(1)  Duties  of  members  neglected. 

(2)  Duties  of  recorder Page985 

(3)  Minority  report  may  be  submitted. 

2.  Findings. 

a.  "Active  service"  defined. 

b.  "Permanent"  defined. 

(1)  Test — Is  disease  curable  ? Page  986 

c.  "Incident  of  the  service"  or  "Line  of  duty"  defined. 

d.  "Line  of  duty"  if  no  evidence  to  the  contrary. 

e.  "Not  line  of  duty" — reasonable  doubt  rule. 

3.  President's  action. 

a.  Finding  is  recommendation  only. 

b.  Disapproval — no  change  in  status Page  987 

c.  Discretion  if  "Not  line  of  duty" — ^rule. 

d.  One  action  exhausts  President's  power. 

4.  Increased  rank. 

a.  If  in  Ordnance  Department. 

b.  If  vacancy  occurs  before  approval. 

5.  No  authority  for  retirement. 

a.  Of  Philippine  Scout  officer. 

b.  Of  officer  who  contracted  disability  as  contract  surgeon. 

6.  Examining  board  imder  act  of  October  1,  1890. 

a.  Not  a  court  for  trial  of  moral  delinquent. 

(1)  Officer  entitled  to  full  hearing  on  such  issue. .  Page  988 

b.  Physical  incapacity  in  line  of  duty. 

(1)  Healed  before  retirement. 

(2)  Not  subject  for  retiring  board  or  general  court-martial 

except  for  new  causes, 

c.  Incapacitated  otherwise  than  for  physical  disability  in  line  of 

duty. 

(1)  One  year's  suspension — ^not  subject  for  retiring  board. 

(a)  Second  examination:    found  incapacitated  phys- 
ically   Page  989 

(2)  Second   examination  found  physically  not  in  line  of 

duty;  wholly  retired. 

(3)  First  and   second   examinations   found   physically   not 

line  of  duty;  wholly  retired. 

(4)  Medical  officer  found  professionally;    second  examina- 

tion found  physically  in  line  of  duty. 

d.  Examination  passed;  officer  becomes  insane;  second  examina- 

tion or  retiring  board  authorized Page  990 

e.  President's  action. 

(1)  Members  not  sworn:  proceedings  disapproved. 

(2)  Effects  a  change  of  status. 

f.  President's  discretion. 

(1)  Officer  contracts  morphine  habit  in  taking  medicine. 

7.  Examining  board  under  act  of  March  3,  1909  (35  Stat.,  737). 

a.  Examination  of  major,  Medical  Department. 


retirement:  synopsis.  981 

OFFICERS— Continued. 

C.  Rank  op  Retired  Officers  Increased  Under  Act  of  April  23,  1904  (33 

Stat.,  264). 

1.  Status  during  Civil  War. 

a.  West  Point  cadet  on  leave. 

b.  Midshipman. 

c.  Civil  employee Page  991 

d.  Contract  surgeon. 

e.  Militiaman  not  called  forth. 

2.  Status  since  Civil  War. 

a.  Convicted  by  a  general  court-martial. 

b.  Promoted  under  act  of  October  1,  1890. 

c.  Officer  deceased. 

D.  Date  of  Retirement Page  992 

E.  Retirement  Order  Can  Not  be  Revoked. 

F.  Uniform,  Title,  etc.,  of  Retired  Officers.  " 

G.  Office. 

1.  Retired  officer  does  not  exercise  "public  office." 

2.  Retired  oflScers  are  in  military  service. 

a.  In  sense  of  section  5498,  Revised  Statutes. 

b.  Subject  to  trial  by  general  court-martial. 

0.  May  enter  Government  Hospital  for  the  Insane. 

d.  May  be  kept  in  civil  court  jurisdiction Page  993 

e.  Exemption  of  salary  from  taxes, 

f.  In  sense  of  section  1223,  Revised  Statutes. 

3.  Retired  officers  may  hold  civil  office. 

a.  Federal. 

(1)  Elective  or  appointive. 

(2)  Limitations. 

(a)  Diplomatic  or  consular  office. 

(6)  $2, 500  salary A Page  994 

(3)  Clerk  in  Quartermaster's  Department, 

b.  State  and  municipal Page  995 

H.  Employment. 

1.  Counsel  before  general  court-martial. 
I.  Burial. 
K.  Active  Duty. 

1.  "Active  duty"  and  "Active  service"  defined. 

2.  "Staff  duty  not  involving  service  with  troops." 

a.  Limited  to  existing  military  establishment Page  996 

b.  Rule. 

c.  "Service  with  troops"  defined. 

d.  Quartermaster  at  Fort  Bayard,  N.  Mex.;  quarters. 

e.  Court  of  inquiry. 

f .  General  court-martial Page  997 

3.  College  duty. 

a.  Pay  and  allowances. 

b.  College  in  the  Philippines. 

c.  College  in  Porto  Rico. 

4.  Widow  not  entitled  to  six  months'  gratuity. 

5.  Can  not  buy  or  draw  furniture  from  quartermaster. 
L.  Pay. 

1.  Longevity. 


982  retirement:  synopsis. 

I.  OFFICERS— Continued. 
M.  Mileage. 

1,  To  home  after  retirement. 

2.  Witness  before  a  court-martial Page  998 

N.  Wholly  Retired.     {See  also  Retirement,  I B  6  to  7.) 

1.  Reasons  for, 

2.  Full  and  fair  hearing. 

3.  One  year's  pay  and  allowances Page  999 

4.  No  authority  for  transporting  goods  to  home. 
O.  Transportation  to  Home. 

n.  ENLISTED  MEN. 

A.  What  Service  Counts  for  Retirement? 

1.  Fraudulent  enlistment  service. 

a.  Previously  discharged  on  certificate  of  disability. 

b.  Previously  discharged  without  honor. 

c.  Previously  discharged  dishonorably. 

d.  Fraudulent  enlistment  without  prev^.ous  discharge. 

2.  Active  service— act  of  September  30, 1890 Page  1000 

3.  Commissioned  service  counts. 

a.  As  officer  Philippine  Constabulary  does  not  count. 

4.  War  service  counts  double. 

a.  In  Civil  War. 

b.  Foreign  service. 

(1)  "Actual  service"  defined. 

(2)  On  transport  in  Philippine  Islands Page  1001 

c.  Service  of  natives  in  Philippines  does  not  count  double. 

B.  Status  op  Retired  Soldiers. 

1.  They  are  not  discharged. 

2.  They  do  not  hold  office. 

3.  They  are  subject  to  military  control. 

a.  May  be  tried  for  not  paying  debts. 

b.  Subsistence  while  in  confinement. 

4.  Residence. 

a.  Abroad  with  permission. 

b.  On  military  reservation  with  license Pa^ge  1002 

5.  Government  Hospital  for  the  Insane. 

6.  Soldiers'  Home. 

7.  Transportation  to  home  and  subsistence. 

C.  Pay  May  be  Stopped. 

1.  To  make  good  overpayment. 

2.  To  reimburse  post  exchange,  etc.,  funds. 

D.  May  Hold  Office. 

1.  In  militia. 

2.  In  Philippine  Scouts. 

3.  Municipal. 

4.  Superintendents  of  national  cemeteries. 

E.  May  Accept  Employment. 

1.  In  Government  service. 

2.  In  civil  life. 

a.  As  a  musician Page  1003 

b.  As  instructor  in  high  school. 

c.  As  interpreter  to  foreign  commissioner. 


RETIREMENT  I  A  1  a.  983 

n.  ENLISTED  MEN— Continued. 

F.  Statis  Terminated. 

1.  By  decease. 

2.  By  enlistment. 

3.  Discharge. 

G.  Retirement  Order  Can  Not  bk  Revokbd. 
m.  CIVIL  EMPLOYEES. 

I  A  1  a.  Held  that  an  officer  who  has  applied  for  retirement  after 
30  years'  service  *  will  not  pass  to  the  retired  list  before  the  date 
when  he  receives  notice,  or  becomes  legally  chargeable  with  notice, 
of  the  order  for  his  retu-ement.  ^   C.  20^30,  Sept,  24,  1906. 

I  A  1  b.  Held  that  cadet  service  at  United  States  Military  Academy 
can  be  legally  included  in  comj)uting  the  30  years'  service  upon  whicn 
an  officer  may  be  retired  on  his  own  application  in  the  discretion  of 
the  President,  under  section  1243,  R.  S.^     C.  1699,  Sept.  S,  1895. 

I  A  1  c.  Held  that  service  rendered  as  a  cadet  at  the  Naval  Acad- 
emy can  not  be  computed  in  determining  an  officer's  ehgibility  for 
retu-ement  after  30  years'  service.     C.  22352,  Nov.  11,  1907. 

I  A  2  a.  The  act  of  June  30,  1882,  22  Stat.,  118,  provides  that  40 
years'  service,  ''either  as  an  officer  or  soldier,"  shall  entitle  an  officer 
to  be  retired.  Held  that,  in  computing  the  40  years'  service,  the 
period  served  by  the  officer  as  a  cadet  at  the  Mihtary  Academy  could 
legally  be  counted.^    P.  49,  379,  Oct.,  1891. 

I  B  1.  Section  1248,  R.  S.,  authorizes  a  retiring  board  to  inquire 
into  and  determine  the  facts  touching  the  nature  and  occasion  or  the 
disability  of  any  officer  who  appears  to  be  incapable  of  performing 
the  duties  of  his  office.  No  mention  is  made  in  this  legislation  as  to 
the  manner  in  which  the  attention  of  the  Secretary  of  War  is  to  be 
drawn  to  the  case  of  an  officer  as  to  whose  capacity  for  active  service 
doubt  has  arisen.  Held  that  it  may  be  due  to  a  discovery  by  any 
superior  commander  in  the  ordinary  performance  of  the  officer's  duty, 
or  it  may  result  from  the  report  of  an  inspector,  or  be  made  the  sud- 
ject  of  representation  by  a  department  commander,  etc.  C.  22399, 
Nov.  22,  1907;  26612,  Apr.  6,  1910. 

I  B  1  a  (1).  It  does  not  affect  the  authority  to  retire  under  section 
1251,  R.  S.,  that  the  incapacity  of  the  officer  may  have  been  found 
to  have  resulted  from  a  wound  received  by  him  while  in  the  volunteer 
service  before  entering  the  Regular  Army.  R.  26,  104,  Oct.,  1867;  C. 
15892,  Mar.  18, 1904. 

IB  1  a  (2).  Held  that  a  commissioned  officer  was  entitled  to  be 
retired  on  a  disability  which  had  been  contracted  while  he  was  an 
enlisted  man.     C.  12277,  Mar.  22,  1902. 

I  B  1  b.  Officers  have  been  retired  on  three-fourths'  pay  for  "heat 
exhaustion  and  overwork  causing  melancholia  and  dementia"  (01 
12277,  Mar.  22,  1902) ;  for  "chronic  Bright's  disease  of  the  kidneys" 
(C.  17113,  Nov.  31,  1904);  for  "deafness"  {C.  17177,  Nov.  18,  1904); 
for  "valvular  disease  of  the  heart  and  Bright's  disease"  {0.  17223, 

1  Sec.  1243,  R.  S.        »  g^g  ^ir.  13,  A.  G.  O.,  Dec.  5,  1891. 

2  See  cir.  10,  1895. 


984  EETIEEMENT  I  B  1  b  (l)  (a). 

Dec.  5, 1904);  for  ''valvular  heart  disease"^  (C.  23059,  Oct.  10, 1908): 
etc.     C.  15871.  Feb.  5,  1904;  15978,  Feb.  27,  1904. 

I  B  1  b  (1)  (a).  Held  that  the  ''cause"  of  ^'incapacity"  intended 
in  section  1249,  K.  S.,  was  not  moral  obhquity  {C.  19189,  Feb.  12, 
1906;  22399,  Nov.  22,  1907),  and  that  the  matter  of  the  fmancial 
integrity  of  the  officer  was  beyond  the  jurisdiction  of  the  board.  So, 
lield  that  the  board  was  not  authorized  to  recommend  the  retirement 
of  an  officer  because  he  did  not  pay  his  debts.  P.  41,  403,  July, 
1890.  Held  also  that  the  inabihty  of  a  disbursing  officer  to  furnish 
a  bond  when  duly  required  to  do  so  was  not  sufficient  ground  for  his 
retirement.    P.  64,  53,  Feb.,  1894;  O.  22399,  Nov.  22,  1907. 

I  B  1  b  (1)  (&).  Held  that  the  law— sections  1248  and  1249,  R.  S.— 
contemjplated  an  existing  and  not  a  purely  prospective  and  contingent 
incapacity;  and  that  an  inquiry  into  an  officer's  general  efficiency 
could  be  pertinent  only  in  so  far  as  it  could  be  regarded  as  going  to 
show  that  his  inefficiency,  if  found,  was  the  result  of  an  impairment 
of  health.    P.  35,  49,  Sept.,  1889. 

I  B  1  c  (1).  The  investigation  of  a  retiring  board  is  not  affected 
by  any  Hmitation  of  time,  as  is  that  of  a  court  martial,  viz,  by  article 
103.  Such  a  board  may  therefore  inquire  into  the  matter  of  a  disa- 
bihty,  however  long  since  it  may  hav0  originated.  E.  20,  619,  May, 
1866. 

I  B  1  c  (2).  As  the  object  of  giving  a  retiring  board  the  power  of  a 
court  martial  is  to  insure  a  full  investigation  and  a  fair  hearing  and 
to  enable  it  satisfactorily  to  determine  the  question  referred  to  it, 
held  that  in  the  exercise  of  these  duties  the  board  is  the  judge  of 
whether  or  not  the  taking  of  a  deposition  is  necessary,  u.  13046, 
Sept.  23,1907. 

I  B  1  c  (3).  The  provision  of  section  1248,  R.  S.,  giving  to  a  retir- 
ing board  such  powers  of  a  court  martial  and  court  of  inquiry  as  may 
be  necessary  to  enable  it  to  inquire  into  and  determine  a  question 
of  alleged  disabihty,  does  not  authorize  such  a  board  to  entertain  a 
charge  of  a  military  offense  as  such  or  to  try  an  officer.^  R.  20,  619, 
May,  1866. 

I  B  1  c  (4).  An  officer  has  the  right  to  be  present  before  the  retiring 
board  which  is  consMering  his  case.  Held  that  the  board  should  not 
proceed  in  his  absence  unless  he  has  waived  his  right  to  be  present. 
C.  26756,  May  24,  1910. 

I  B  1  d  (1).  In  view  of  the  disposition  of  retiring  boards  to  rely 
upon  the  report  of  the  medical  officers,  the  findings  in  many  cases 
are  unsatisfactory,  and  the  evidence  as  to  the  cause  of  the  disability 

1  See  27  Op.  Atty.  Gen.,  163,  Jan.  22, 1909,  in  which  it  is  held  that  an  officer  may 
be  retired  because  oi  ill  temper,  irritability,  lack  of  self-control,  boorishness,  dis- 
courtesy, or  similar  cause,  if  they  render  him  incapable  of  performing  the  duties  of 
his  office.  Also  see  27  Op.  Atty.  Gen.,  14,  July  10,  1908,  in  which  the  word  "incapa- 
ble" is  defined  to  mean  that  an  officer  is  "no  longer  responsible  for  his  own  actions 
or  subject  to  infirniities  or  disabilities  which  make  the  reasonable  fulfillment  of  his 
military  duties  impossible  for  him,  notwithstanding  an  honest  desire  and  firm  pur- 
pose on  his  part  to  fully  discharge  them." 

2  Par.  9,  cir.  10,  A.  G.  O.,  1895,  which  directs  that  when  an  officer  is  ordered  before 
an  examining  or  retiring  board  original  or  copies  of  all  official  records  affecting  his 
character  or  efficiency  shall  be  furnished  the  board.  See  27  Op.  Atty.  Gen.,  14, 
July  10, 1908,  in  which  it  is  held  that  an  officer  can  not  be  retired  for  the  acts  or  omis- 
sions which  are  alleged  as  evidence  of  incapacity. 


KETIREMENT  I   B   I   d  (2).  985 

is  SO  meager  as  to  make  it  impossible  for  the  Secretary  of  War  to 
determine  whether  or  not  the  disabihty  is  in  hne  of  duty.  Held 
that  nothing  short  of  a  strict  enforcement  of  section  1248,  R.  S., 
will  apply  an  adequate  remedy.^  C.  15600,  Feb,  ^,  ^904;  15913, 
Feb.  16,  1904;  2274S,  Feb.  12,  1908. 

IB  1  d  (2).  Sections  1246-1252,  R.  S.,  charge  the  board  itself 
with  the  conduct  of  the  investigation  ^  and  furnish  it  with  a  recorder 
to  assist  it  in  its  inquiry.  It  may  vest  in  the  recorder  such  duties 
as  it  deems  best  and  may  charge  him  wholly  or  in  part  with  the  pro- 
duction and  presentation  of  testimony,  and  it  may  also  direct  him 
to  prepare  replies  to  the  contentions  of  counsel,  but  Tield  that  unless 
so  specially  directed  by  the  board  the  duties  of  the  recorder  are 
restricted  to  the  summoning  of  witnesses  and  the  preparation  of  the 
record.     C.  17288,  Dec.  19,  190^. 

I  B  1  d  (3).  Held  that  a  member  (or  members)  of  a  retiring  board 
may  submit  a  minoritv  report  when  he  feels  that  his  view  will  assist 
the  President  in  reacning  a  conclusion  on  the  question  before  the 
board.     0.  29401,  Jan.  21,  1912.  ^ 

I  B  2  a.  The  term  ''active  service,"  as  used  in  statutes  regulating 
retirement,  simply  relates  to  that  period  in  the  career  of  an  officer 
which  intervenes  between  his  appointment  to  military  office,  and  his 
vacation  of  such  office  due  to  death,  resignation,  dismissal,  or  retire- 
ment. During  this  period  all  officers  are  presumed  to  be  physically 
and  mentally  capable  of  performing  the  duties  of  the  office  into  whicn 
they  have  been  lawfully  inducted.  If  the  contrary  appears,  the 
laws  vests  authority  in  the  Secretary  of  War  to  convene  a  retiring 
board  and  to  charge  it  with  an  inquiry  into  the  nature  and  extent  of 
the  disability,  with  a  view  to  ascertain  whether  the  officer  is  incapaci- 
tated from  performing  the  duties  of  his  office.  C.  22399,  Nov.  22, 
1907;  23200,  May  5,  1908. 

I  B  2  b.  Upon  the  examination  of  an  officer  for  promotion,  it  was 
discovered  that  he  had  a  rupture  and  was  using  a  truss,  and  the  evi- 
dence before  the  board  showed  that  the  rupture  could  be  removed  by 
an  operation  which  was  so  certain  of  success  that  of  the  seventy  cases 

^  "A  retiring  board  may  inquire  into  and  determine  the  facts  touching  the  nature 
and  occasion  of  the  disability  of  any  officer  who  appears  to  be  incapable  of  performing 
the  duties  of  his  office,  and  shall  have  such  powers  of  a  court-martial  and  of  a  court  of 
inquiry  as  may  be  necesary  for  that  purpose."     (Sec.  1248,  R.  S.) 

The  opinion  of  a  surgeon  must  not  be  taken  as  conclusive.  See  7  Op.  Atty.  Gen., 
165,  in  which  it  was  held  that: 

"In  the  first  place,  a  casualty  is  a  question  of  fact,  to  be  proved  according  to  the 
ordinary  rules  of  evidence  and  to  the  reasonable  satisfaction  of  the  inquiring  and  decid- 
ing mind.  That  mind  is  entitled  to  have  the  very  facts  before  it,  and  is  not  bound  to 
accept  as  final  the  opinions  even  of  an  expert.  Such  opinions  are  evidence,  but 
neither  conclusive  nor  exclusive  proof.  Every  person  of  judicial  training  well  knows 
that  the  opinions  of  medical  or  other  scientific  or  practical  exj)erts  often  differ  and 
that  they  sometimes  err  in  a  body  as  if  by  some  epidemic  contagion.  There  is  a  judi- 
cial case  involving  scientific  inquiry,  in  the  printed  record  of  which  are  the  answers 
of  twenty-three  experts  to  the  same  question;  twenty-two  of  them  give  decision  one 
way,  and  a  single  one  of  them  gives  a  reverse  decision;  and,  in  the  conclusion,  it 
was  proved,  beyond  all  controversy,  that  he  alone  was  right  and  that  all  the  others 
erred.  In  general,  the  opinions  of  an  expert  are  of  more  or  less  weight  and  value, 
according  to  the  person's  constitution  of  mind  and  the  degree  of  completeness  of  the 
collection  of  pertinent  facts  on  which  his  mind  acts." 

^  If  an  officer  makes  no  objection  to  the  proceedings  or  rulings  of  a  board,  he  waives 
irregularities.     (24  Ct.  Cls.,  265.) 


986  RETIREMENT  I   B   2   b  (l). 

in  the  United  States  Army  which  up  to  that  time  had  been  subjected 
to  it  but  three  had  relapsed.  The  officer  refused  the  operation. 
Held  that  the  disabihty  was  not  permanent.  Held  further,  that  mani- 
festly the  incapacity  in  consequence  of  which  the  law  authorizes  the 
retirement  of  an  officer  from  active  service  is  one  that  is  thought  to 
be  permanent,  or  such  that  the  removal  of  the  disabihty  which  causes 
it  IS  highly  improbable,  and  that  Congress  can  not  possibly  have 
intended  to  provide  for  the  maintenance  of  an  officer  in  the  prime  of 
life  without  receiving  an  equivalent  in  the  way  of  service,  unless  he 
be  suffering  from  an  incurable  disease  or  injury.  C.  3831,  Mar.  10, 
1898;  11223,  Sept.  10,  1901;  22399,  Nov.  22,  1907;  24129,  Dec.  3, 

I  t/Uo . 

I  B  2  b  (1).  Incapacity  for  service  by  reason  of  physical  disability 
relates,  of  course,  to  a  permanent,  incurable  disease,  or  injury  of  such 
a  character  as  to  absolutely  disqualify  the  officer  affected  by  it  for 
duty  on  the  active  list.  Deafness,  defective  vision,  and  incurable 
organic  diseases  are  examples  of  such  a  disability.  If,  however,  the 
disease  be  curable  or  of  such  a  character  as  to  yield  to  treatment 
then,  even  though  a  cure  may  require  considerable  time,  the  dis- 
ability is  not  permanent  and  the  officer  may  be  passed.  And  that 
question  is  for  the  board  to  determine.  The  test  should  be.  Is  the 
disease  or  injury  curable  or  incurable?  If  it  be  curable  within  a 
reasonable  time,  then  the  officer  should  be  passed;  if  it  be  incurable 
within  such  reasonable  time,  the  finding  should  be  adverse.  0. 11350, 
Oct.  7,  1901. 

I  B  2  c.  The  phrases  ''in  line  of  duty"  and  ''incident  of  the  ser- 
vice," while  not  synonymous,  are  not  widely  separate  in  meaning. 
Held  that  the  efficient  execution  of  a  statute  involving  the  one  would 
give  reasonable  operation  to  the  other.  In  other  words,  the  several 
"incidents"  which  go  to  make  up  the  daily  or  yearly  routine  of 
military  service  constitute,  when  added  together,  the  "line  of  duty" 
which  is  contemplated  in  the  pension  laws,  and  no  public  interest  will 
suffer  if  either  understanding  be  applied  by  a  retiring  board  in  the 
determination  of  a  particular  case.  C.  15600,  Feb.  24,  1904;  19323, 
Feb.  24,  1906. 

I  B  2  d.  In  a  specific  case  there  Avas  no  testimony  before  the  board 
to  show  that  the  officer  had  contracted  prior  to  his  entry  into  the 
military  service  any  of  the  diseases  which  the  surgeons  found  to  exist. 
There  was  evidence,  however,  that  one  of  the  diseases  from  which  he 
suffered  was  incurred  in  the  military  service,  and  it  was  highly  prob- 
able that  another  one,  viz,  incipient  tuberculosis,  was  due  to  the  same 
cause.  Held  that  the  board  properly  found  that  the  officer's  dis- 
ability was  in  line  of  duty.^     C.  15600,  June  9,  1904. 

IB  2  e.  Held  that  an  officer  should  not  be  wholly  retired  on  the 
findings  of  a  retiring  board  unless  the  testimony  as  to  the  cause  of  the 
disability  establishes  the  fact,  beyond  a  reasonable  doubt,  that  the 
incapacity  is  not  the  result  of  any  incident  of  the  service.^  C.  12992, 
July  21,  1902. 

IB  3  a.  The  finding  of  a  retiring  board  under  section  1251  or 
section  1252,  R.  S.,  is  in  the  nature  of  a  recommendation,  and  till  it  is 

1  See  7  Op.  Atty.  Gen.,  154. 

2  See  27  Op.  Atty.  Gen.,  163,  Jan.  22, 1909,  in  which  it  is  held  that  sections  1245-1252, 
R.  S.,  deal  with  the  actual  incapacity  of  an  officer  and  not  with  its  cause  or  causes, 
except  in  determining  what  shall  be  done  in  case  the  officer  is  found  incapacitated. 


EETIKEMENT  I   B  3  b.  987 

''approved  by  the  President"  no  retirement  can  be  ordered  there- 
upon.»     R.  26,  104,  Oct,  1867;  C.  2274S,  Feb.  12,  1908. 

I  B  3  b.  If  the  President  disapproves  the  findings  of  a  retiring 
board  the  officer's  status  remains  the  same  as  it  was  before  the  ques- 
tion of  referring  his  case  to  the  retiring  board  was  considered  by  the 
department.     C.  227^3,  Feb.  12,  1908. 

I  B  3  c.  Wlien  a  retiring  board  finds  an  officer  incapable  of  per- 
forming the  duties  of  his  office  and  also  finds  such  incapacity  not 
incident  to  the  service,  the  President  is  vested  with  discretion  to 
retire  the  officer  with  three-fourths  pay  of  his  rank  or  wholly  retire 
him  with  one  year's  pay  and  allowances.  Held  that  this  discretion  is 
properly  exercised  in  favor  of  the  officer  where  the  disability  is  incur- 
red through  an  untoward  incident  or  without  fault  or  with  excusable 
fault.  C,  22809,  Feb.  24,  1908.  Held  further,  that  where  the  main 
contributing  cause  of  such  disability  is  inexcusable  misconduct  on  the 
part  of  the  officer  the  latter  is  subject  to  bein«j  wholly  retired.  Held 
further,  that  where  the  main  cause  of  the  disability  is  misconduct 
extending  over  a  long  period  of  service  and  persisted  m  after  repeated 
warnmgs  the  officer  snould  be  wholly  retu:ed.  G.  26234,  Apr.  24, 
1911. 

I  B  3  d.  The  finding  of  a  retirmg  board,  approved  by  the  Presi- 
dent, is  conclusive  as  to  the  facts.  The  board  finds  the  facts,  and 
the  President  approves  or  disapproves  the  finding.  There  is  here  a 
judicial  power  vested  in  the  two  and  not  in  the  President  acting 
singly,  and  when  the  power  has  been  once  fully  exercised  it  is  ex- 
hausted as  to  the  case.^  P.  56,  426,  Dec,  1892;  C.  6671,  June,  1899; 
11223,  Sept.  10, 1901;  22399,  Nov.  22,  1907. 

I  B  4  a.  Held  that  if  an  officer  be  retired  while  detailed  in  the 
Ordnance  Department  under  the  acts  of  February  2,  1901  (31  Stat. 
748),  and  June  25,  1906,  and  March  3,  1909  (35  Stat.  751),  he  should 
be  retired  with  the  additional  rank  held  in  the  Ordnance  Department. 
C.  25677,  Oct.  15  and  Dec.  17,  1909. 

I  B  4  b.  Held  that  an  officer  can  not  be  retired  with  increased  rank 
after  the  action  of  a  retiring  board  unless  a  vacancy  occurs  before  the 
President  approves  the  finding  of  the  board .^     C.  9236,  Nov.  7,  1900. 

I  B  5  a.  Held  that  there  is  no  authority  of  law  for  the  retirement 
of  an  officer  of  Philippine  Scouts  as  such  on  account  of  disability 
incurred.     C.  14314,  Mar.  I4,  1903. 

I  B  5  b.  Held  that  an  officer  can  not  be  placed  on  the  retired  fist 
for  disabffity  incurred  while  a  contract  surgeon.  C.  15892,  Mar.  18, 
1904. 

I  B  6  a.  The  general  theory  upon  which  the  Army  has  proceeded 
in  the  past  is  that  examining  boards  and  retiring  boards  should  not 
be  considered  courts  for  the  trial  of  moral  delinquents;  that  where 
an  officer  is  notoriously  moraUy  unfit  for  promotion,  he  is  equally 
unfit  to  be  an  officer  in  whatever  rank  he  may  be  serving,  and  that 
disciplinary  measures  should  be  taken  at  the  time  the  evidence  of 
the  moral  unfitness  is  available  and  the  punishment  of  the  moraUy 
unfit  officer  not  postponed  until  such  period  as  he  shall  have  reached 

1  See  21  Op.  Atty.  Gen.,  385,  and  27  id.,  193. 

2  See  13  Op.  Atty.  Gen.,  99  and  209;  19  id.,  203,  Dec.  3,  1888;  U.  S.  v.  Burchard 
(125  U.  S.,  179);  Potts  v.  U.  S.  (125  U.  S.,  175). 

3  See  G.  O.  No.  41,  A.  G.  O.,  June  24, 1897.  See  also  Par.  20  S.  O.,  No.  173,  W.  D., 
1911. 


9B8  RETIREMEKT  1  B  6  a  (l). 

the  time  for  his  promotion.  C.  2367 Jf,  July  31,  1908;  24036,  Nov.  S, 
1908. 

I  B  6  a  (1).  An  examining  board  found  an  officer  not  quahfied 
morally  for  promotion.  A  court  of  inquiry  which  later  investigated 
the  case  recommended  that  War  Department  orders  be  amended  so 
as  to  provide  specifically  that  all  the  proceedings  during  the  examina- 
tion of  an  officer  as  to  moral  qualifications  should  be  in  the  presence 
of  himself  and  counsel  ^'if  he  desires  counsel";  that  he  be  furnished 
full  mformation  as  to  any  allegations  against  his  moral  conduct, 
names  of  accusers,  witnesses,  and  documentary  evidence  against  him ; 
that  he  be  allowed  to  examine  such  witnesses  and  evidence  and  to 
testify  and  introduce  evidence  in  his  own  behaK;  that  if  found  mor- 
ally disqualified,  he  be  furnished  a  full  statement  of  the  reasons, 
Held,  that  'Hhe  very  fact  that  an  adverse  finding  on  moral  qualifica- 
tion points  very  certainly  to  an  officer's  severance  from  the  Army 
reveals,  I  think,  that  adequate  provision  for  a  full  and  complete 
hearing  upon  the  moral  issue  should  be  conducted."  0.  18566, 
June  22,  1906. 

I  B  6  b  (1).  The  act  of  October  1,  1890  (26  Stat.  562),  contemplates 
that  before  an  ofiicer  can  be  retired  under  it  he  shall  be  incapacitated 
for  active  service.  The  existence  of  that  fact  must  be  ascertained 
before  the  law  can  be  apphed.     If  an  officer  is  regularly  found  inca- 

Eacitated  physically  by  an  examining  board  appointed  under  the  act, 
ut  before  being  retired  recovers  from   his  disability,  he  can  not 
legally  be  retired.     Where  such  recovery  is  alleged,  a  new  examina- 
tion is  not  only  proper  but  necessary.^ 
C.  1979,  Jan.,  1896;  18723,  Oct.  13,  1905. 

I  B  6  b  (2).  Under  the  act  of  October  1,  1890  (26  Stat.  562),  the 
finding  of  the  board  of  examination  that  the  ofl&cer  is  incapacitated 
for  duty  is  not  'per  se  final,  but  must  be  reported  for  the  action  of  the 
Secretary  of  War  and  passed  upon  by  him.^  C.  15738,  Jan,  7,  1904. 
Where  the  finding  and  report  of  the  board  have  been  approved  but 
not  yet  executed  by  actual  retirement,  there  may  intervene  contin- 
gencies which  would  supersede  such  proceeding,  as  the  trial  and 
dismissal  of  the  officer  by  court-martial  or  the  arising  of  new  causes 
which  might  make  proper,  that  the  question  of  Ins  disability  be 
iaquired  into  by  a  retiring  board  convened  under  section  1246,  K.  S. 
But  unless  some  such  new  occasion  and  ground  of  disquahfication 
be  presented,  the  action  of  the  Secretary  of  War  in  approving  the 
report  remains  final  and  exhaustive,  and  the  officer  is  entitled  to 
be  retired  under  the  act  of  1890  and  can  not  legally  be  ordered 
before  such  retiring  board.  P.  61,  148,  269,  Aug.  and  Sept.,  1893; 
0.  1979,  Jan.,  1896;  15738,  Jan.  7,  1904;  1S723,  Oct.  13,  1905; 
23135,  June  5,  1909. 

I  B  6  c  (1).  An  officer  was  suspended  from  promotion  for  one  year, 
he  having  failed  in  his  examination  for  promotion  otherwise  than 
physically  in  fine  of  duty.^     Held  that  it  was  not  proper  to  order  him 

1  See  21  Op.  Atty.  Gen.,  385,  July  31,  1896. 

2  See  27  Op.  Atty.  Gen.,  193,  Feb.  19,  1909. 

2  See  25  Op.  Atty.  Gen. ,  568,  Mar.  24, 1906,  in  which  it  is  held  in  a  Marine  Corps  case 
that  the  year's  suspension  begins  to  run  from  the  date  of  approval  of  the  proceedings  of 
the  board,  except  when  the  vacancy  has  occurred  previous  to  the  approval,  in  which 
case  the  suspension  runs  from  the  date  of  vacancy.  The  "loss  of  date,"  i.  e.,  "loss 
of  numbers,"  begins  to  run  from  the  date  of  vacancy. 


RETIREMENT  I   B  6  C  (l)   (rt).  989 

before  a  retiring  board,  as  the  act  of  October  1,  1890,  provided  that  at 
the  end  of  one  year  he  should  be  reexamined  to  determine  his  fitness 
for  promotion.  Held,  further,  that  the  order  of  suspension  began  to 
run  at  the  date  when  he  would  have  been  promoted  had  he  passed  his 
examination.     C.  28645,  July  6,  1911. 

I  B  6  c  (1)  (fl).  An  officer  was  found  professionally  not  qualified 
for  promotion  and  after  one  year's  suspension  was  found  physically 
not  qualified  for  promotion,  owing  to  disabihty  in  line  of  duty,  under 
that  portion  of  section  3  of  the  act  of  October  1,  1890  (26  Stat.  562), 
which  reads:  ''If  he  should  fail  for  any  other  reason  he  shall  be  sus- 
pended from  promotion  for  one  year,  when  he  shall  be  reexamined, 
and  in  case  of  failure  on  such  reexamination  he  shall  be  honorably  dis- 
charged with  one  year's  pay  from  the  Army."  Held  that  the  physical 
examination  was  a  proper  part  of  the  second  examination  and  that 
the  finding  of  the  board  was  legal  and  subject  to  approval.  C.  22770, 
Mar.  4,  1908. 

I  B  6  c  (2).  An  officer  was  found  mentally  and  professionally  dis- 
q^uahfied  for  advancement  by  a  promotion  board.  Upon  reexamina- 
tion at  the  end  of  one  year  he  was  found  physically  incapacitated  for 
active  service,  due  to  disabihty  not  incurred  in  line  of  duty.  Further 
examination  was  desisted  from.  Held  that  the  final  clause  of  the  act 
in  question  became  operative  and  that  the  officer  should  be  honor- 
ably discharged  with  one  year's  pay.  C.  22701,  Feb.  4,  1908;  22809, 
Mar.  14,  1908. 

I  B  6  c  (3).  Held  that  if  an  examining  board  called  pursuant  to 
the  provisions  of  the  act  of  October  1,  1890,  should  find  an  officer 
physically  incapacitated,  not  in  line  of  duty,  he  shall  be  suspended 
from  promotion  for  one  year,  at  the  expiration  of  which  time  ne  shall 
be  reexamined,  and  in  the  event  of  his  failure  to  pass  the  physical 
examination  on  account  of  disability  not  incurred  in  line  of  duty, 
no  executive  discretion  is  possible,  as  the  law  provides  that  he  shall 
be  honorably  discharged  with  one  year's  pay  and  allowances.  C. 
22809,  Mar.  15,  1908;  28645,  July  5,  1911. 

I  B  6  c  (4).  The  examination  of  officers  of  the  Medical  Depart- 
ment for  promotion  is  controlled  by  the  provisions  of  the  act  of  Octo- 
ber 1,  1890,  as  replaced  by  the  act  of  April  23,  1908  (35  Stat.  67),  and 
subsequently  modified  in  its  application  to  medical  officers  of  the 
grade  of  major  by  the  act  of  March  3,  1909  (35  Stat.  737).^  A  major 
upon  examination  was  found  professionally  suspended  for  a  year  and 
then  found  disqualified  for  promotion — incapacity  in  line  of  duty. 
It  was  urged  that  he  was  entitled  to  be  retired  with  the  rank  of  lieu- 
tenant colonel  before  a  vacancy  should  occur  in  the  grade  of  heutenant 
colonel  to  which  he  would  have  been  promoted  if  he  had  not  been 
found  incapacitated.^  Held  that  he  could  not  be  retired  with  the  rank 
of  Heutenant  colonel  until  a  vacancy  should  occur  in  that  grade. 
0.  23135,  June  5,  1909. 

1  See  27  Op.  Atty.  Gen.,  193,  Feb.  19,  1909,  in  which  it  was  held  in  the  case  of  a 
major  of  the  Medical  Department,  who  was  found  incapacitated  professionally  for  pro- 
motion and  the  finding  approved  by  a  board  of  review,  that  in  view  of  apparent  phys- 
ical incapacity  in  line  of  duty  not  discovered  at  original  examination  he  may  be 
reexamined  by  order  of  the  Secretary  of  War. 

2  See  Retirement,  I  B  4  b,  which  announces  the  rule  to  be  followed  on  a  question  of 
retirement  with  increased  rank,  when  a  vacancy  occurs  before  the  approval  of  the 
proceedings,  to  which  the  officer  normally  would  have  been  entitled  to  promotion  to 
if  no  question  had  been  raised  as  to  his  incapacity. 


990  RETIREMENT  I  B   6   d. 

I  B  6  d.  After  an  officer  had  successfully  passed  an  examination 
for  promotion,  and  before  his  promotion,  he  became  incurably  insane. 
Held  that  the  approval  of  the  favorable  finding  of  the  examining  board 
did  not  bind  the  War  Department  to  await  his  promotion.  Held, 
further,  that  he  might  be  given  a  second  physical  examination  or 
might  be  ordered  before  a  retiring  board.     C.  28852,  Aug.  IJ^,  1911. 

I  B  6  e  (1).  Held  that  the  regulations  prepared  by  the  Presi- 
dent under  legislative  sanction  in  furtherance  of  the  act  of  October  1, 
1890,  are  sufficiently  mandatory  in  character  as  to  warrant  the  dis- 
approval of  the  proceedings  of  an  examining  board,  whose  members 
had  failed  to  take  the  oath  in  the  manner  prescribed  in  the  regulations 
as  published  in  general  orders  of  the  department.^  Held  further  that 
the  subsequent  swearing  of  the  members  aid  not  operate  to  cure  the 
defect  as  indicated  m  the  record.     C.  20588,  Oct.  25,  1906. 

I  B  6  e  (2).  An  examining  board  convened  under  the  act  of 
October  1,  1890,  found  an  officer  incapacitated  for  active  service. 
The  finding  was  approved.  Held  that  as  this  officer  was  the  senior 
in  his  grade,  and  a  vacancy  had  occurred  in  the  next  grade,  this  oper- 
ated to  transfer  the  officer  from  the  active  to  the  retired  list  and  to 
place  him  in  the  status  occupied  by  retired  officers  in  the  operation  of 
sections  1255  and  1257,  R.  S.  The  change  of  status  having  been 
legally  accoroplished,  it  is  beyond  the  power  of  the  Executive  to 
restore  the  officer  to  the  active  list.     C.  23135,  July  21,  1909. 

I  B  6  f  (1).  Morphine  was  given  to  an  officer  to  reheve  neu- 
ralgic pain.  Later  the  officer  was  found  by  an  examining  board  to 
be  incapacitated  for  active   service,  the  cause  being  chronic  mor- 

Ehinism,  not  in  line  of  duty.  Held  that  the  acquisition  of  the  habit 
ad  been  contributed  to  sufficiently  by  incidents  of  the  service  to 
warrant  the  President  in  exercising  his  discretion  and  placing  the 
officer's  name  on  the  retired  list.     C.  22809,  Apr.  16,  1908. 

I B  7  a.  An  examining  board  convened  under  the  act  of  April  23, 
1908  (35  Stat.  67),  as  amended  by  the  act  of  March  3,  1909  (35  Stat. 
737)  found  that  a  major  of  the  Medical  Corps  was  not  qualified  pro- 
fessionally for  promotion.  Held  that  the  proceedings  of  the  board 
should  be  referred  to  a  board  of  review.  If  the  latter  board  dis- 
appjroves  the  findings  of  the  board  of  examination  the  officer  will  be 
entitled  to  his  promotion,  but  if  it  approves  those  findings  the  course 
outlined  by  the  statute  should  be  followed,  viz,  suspension  from  pro- 
motion for  a  period  of  one  year  with  a  later  examination  at  the  end  of 
that  period,  and  in  the  event  of  a  second  similar  failure  to  establish 
the  necessary  professional  qualifications  for  advancement,  retirement 
without  promotion.     C.  23135,  Nov.  12,  1909.  ^ 

I  C  1  a.  A  retired  officer  served  with  credit  against  the  enemy 
while  on  leave  of  absence  from  the  Military  Academy  preceding  April 
9,  1865.  Held  that  he  served  otherwise  than  as  a  cadet  and  was 
entitled  to  advancement  in  grade  under  the  act  of  April  23,  1904  (33 
Stat.  264).     C.  19271,  Mar.  2, 1906,  Feh.  19,  and  Dec.  4,  1907. 

I  C  1  b.  The  act  of  April  23,  1904  (33  Stat.  264),  provides  that  an 
officer  who  served  with  credit  as  an  officer  or  enlisted  man,  otherwise 
than  as  a  cadet,  during  the  Civil  War,  may  in  the  discretion  of  the 
President,  by  and  with  the  advice  and  consent  of  the  Senate,  have  his 

^  An  officer  can  not  be  retired  on  the  findings  of  an  examining  board  unless  the  Presi- 
dent approve  such  findings.  The  approval  of  the  Secretary  of  War  is  not  sufficient. 
See  21  Op.  Atty.  Gen.,  385,  July  31,  1896. 


RETIREMENT   I   C  1   C.  991 

name  placed  on  the  retired  list  of  the  Army,  with  rank  and  retired 
pay  of  one  grade  above  that  actually  held  by  him  at  the  date  of  retire- 
ment. Held  that  this  did  not  apply  to  an  officer  who,  durin<^  the 
Civil  War,  served  as  a  midshipman  at  the  Naval  Academy;  and  did 
not  participate  during  the  Civil  War  against  the  enemy  on  land  or  sea, 
or  in  any  respect  otherwise  than  as  a  cadet.     C.  162^3 y  Mar.  2,  1911. 

Held  further  that  advancement  was  warranted  under  the  statute 
in  the  case  of  a  midshipman  who  had  otherwise  than  as  a  cadet 
actually  participated  in  the  operation  of  the  Civil  War,  and  had  vol- 
untarily submitted  to  its  hardships  and  dangers.  G.  16271,  May  16, 
1904;  16409,  June  2,  1904,  (^nd  Feb.  20,  1905;  22459,  Dec.  24,  1907. 

I  C  1  c.  Held  that  an  officer  on  the  retired  list  can  not  be  advanced 
in  grade  under  the  provisions  of  the  act  of  April  23,  1904  (33  Stat. 
264),  because  of  service  performed  by  him  for  the  United  States  as  a 
civil  employee,  no  matter  how  nearly  such  service  may  be  assimilated 
to  that  of  a  commissioned  officer  or  an  enlisted  man,  and  even  though 
he  had  taken  the  oath  of  allegiance  to  the  United  States.^  C.  16312, 
Sept.  29, 1904,  o^nd  July  5, 1911;  I6442,  June  9, 1904;  1^441,  June  11, 
1904;  19271,  Feb.  28, 1907. 

I  C  1  d.  Held  that  an  officer  can  not  be  advanced  in  grade  under 
the  terms  of  the  act  of  April  23,  1904  (33  Stat.  264),  because  of  service 
during  the  Civil  War  as  a  contract  surgeon.^  C.  16672;  jrom  July  28, 
1904,  to  June  30,  1909. 

I  C  1  e.  A  retired  officer  served  as  a  militiaman  not  called  into  the 
service  of  the  United  States,  with  credit  against  the  enemy  preceding 
April  9,  1865.  Held  that  as  he  did  not  serve  in  the  Regular  Army  or 
volunteer  forces  he  was  not  entitled  to  advancement  in  grade  under 
the  act  of  April  23,  1904  (33  Stat.  264).  C.  19271,  Feb.  3,  1908; 
16312,  Jan.  9,  1912. 

I  C  2  a.  After  the  act  of  April  23,  1904  (33  Stat.  264),  had  been 
passed,  the  question  arose  as  to  whether  or  not  those  officers  on  the 
retired  hst,  who  had  served  otherwise  than  in  the  Volunteers,  and  who 
were  otherwise  qualified,  but  who  had  been  convicted  by  courts- 
martial  preceding  April  9,  1865,  were  subject  to  advancement  under 
that  act;  held,  that  their  conviction  by  court-martial  did  not  render 
their  services  not  creditable  and  that  they  were,  therefore,  subject  to 
advancement.     O.  16313,  May  7,  1904,  and  Mar.  24,  1909. 

I  G  2  b.  Held  that  an  officer  who  has  been  retired  under  the  act  of 
October  1, 1890  (26  Stat.  562),  can  be  advanced  in  grade  on  the  retired 
hst  under  the  act  of  April  23,  1904  (33  Stat.  264) .»  C.  28769,  July  28, 
1  tf  i  1 . 

I  C2  0.  The  act  of  April  23,  1904  (33  Stat.  264),  authorizes  the 
President,  in  his  discretion  and  with  the  consent  of  the  Senate,  to 
advance  certain  retired  officers  to  a  rank  on  the  retired  list  one  grade 
in  advance  of  the  rank  actually  held  by  them  at  the  time  of  retirement. 
Held  that  this  act  does  not  operate  in  the  case  of  a  deceased  officer.* 
a  16359,  Dec.  27,  1911. 

1  See  27  Op.  Atty.  Gen.,  471,  July  14, 1909,  in  which  the  expression  "the  regular  or 
volunteer  forces  "  mentioned  in  the  act  of  Apr.  23,  1904,  is  defined  as  inchiding  "only 
those  who  by  regular  appointment  in  the  usual  way  or  by  regular  enlistment  were 
members  of  the  Regular  or  Volunteer  Army." 

2  See  27  Op.  Atty.  Gen.,  468,  July  14,  1909. 

3  25  Op.  Atty.  Gen.,  312;  27  id.,  212  Feb.  23,  1909. 
*  See  29  Op.  Atty.  Gen.,  254,  Sept.  22,  1911. 


992  BETIREMENT  I  D. 

I D.  In  the  case  of  an  officer  found  incapacitated  for  active  duty,  lield 
that  he  passes  to  the  retired  hst  upon  the  date  when  he  is  notified  of 
the  approved  action  of  the  retiring  board  in  his  case.  C.  23873,  Sept. 
19,  1908,  and  Apr.  6,  1909. 

I  E.  Held  that  when  an  officer  has  once  been  retired  in  pursuance 
of  the  requirement  of  a  statute  authorizing  such  retirement,  the  order 
by  which  such  retirement  was  effected  can  not  subsequently  be 
revoked  ^  or  modified  so  as  to  make  the  retirement  relate  to  another 
statute,  even  though  the  case  was  one  to  which  more  than  one  statute 
properly  applied  at  the  time  when  the  retirement  was  accomplished. 
C.  16416,  May  27,  1904,  Jctn.  9,  1905,  and  Bee.  6,  1906.  Nor  can  the 
action  be  reopened  by  a  new  Secretary  of  War.  P.  4I ,  358,  June,  1890; 
42,  438,  Sept.,  1890;  C.  16202,  Apr.  20,  1904;  I64I6,  May  27,  1904, 
Jan.  9,  1905,  and  Dec.  6,  1906. 

I  F.  As  section  34  of  the  act  of  February  2,  1901  (31  Stat.  757) 
does  not  repeal  section  1212,  R.  S.,  held  that  a  retired  officer  is  not 
authorized  to  wear  any  uniform  other  than  that  of  his  actual  rank 
or  to  be  addressed  in  orders  or  official  communications  by  any  title 
other  than  that  of  his  actual  rank.     C.  9826,  Feh.  I4,  1901. 

I  G.  Ketired  officers  (except  when  assigned  to  duty  under  section 
1259,  R.S.,  or  other  statutes)  do  not  exercise  public  office.^  C.  1121, 
Mar.  14,  1895;  1077,  Mar.  1,  1895;  8126,  May  2,  1900.     . 

I  G  2  a.  Held  that  in  the  sense  in  which  the  word  *' officer"  is  used 
in  section  5498,  R.  S.,  a  retired  officer  may  not  assist  a  regular  soldier 
in  getting  the  evidence  necessary  to  support  his  application  for  a 
pension.3     0.  20254,  Aug.  20,  1906;  19205,  Feb.  12,  1906. 

1  G  2  b.  An  officer  on  the  retired  list,  being  as  much  a  part  of  the 
Army  as  an  officer  on  the  active  list,*  would  be  subject  to  trial  by 
general  court  martial  independently  of  the  provision,  specifically  so 
subjecting  him,  of  section  1256,  R.  S.^  R.  33,  613,  Dec,  1872.  The 
retirement  of  an  officer  has  no  effect  upon  his  status  in  respect  to  trial 
by  court-martial,  and  he  is  equally  liable  to  trial  after  as  before 
retirement  for  an  offense  committed  prior  to  his  retirement,  within  the 
limitation  prescribed  in  the  one  hundred  and  third  article  of  war.  O, 
25574,  Sept.  14,  1909. 

I G  2  c.  Held  that  as  retired  officers  are  a  part  of  the  Army,  they  are 
entitled  to  admission  to  the  Government  Hospital  for  the  Insane  upon 
a  commitment  issued  by  the  Secretary  of  War;  and  that  the  expenses 
of  furnishing  a  military  escort  constitutes  a  proper  charge  against 
the  appropriation  for  transportation  of  the  Army.  C.  23922,  Oct.  1, 
1908. 

^  He  can  not  be  reinstated  by  order  of  the  President.  See  13  Op.  Atty.  Gen.,  99  and 
209,  June  14,  1869,  and  Feb.  5,  1870,  respectively,  and  19  id.,  609. 

2  See  Andrew  Geddes  v.  U.  S.,  38  Ct.  Cls.,  429,  Mar.  9, 1903.  See  People  v.  Duaue, 
121  New  York,  367.  See  Reed  v.  Sehon,  2  Cal.  App.  Rept.,  55;  183  Pac.  Reporter, 
771,     Rehearing  denied  by  Supreme  Court  of  State,  Dec.  22,  1905. 

3  See  16  Ct.  Cls.,  223;  18  Ct.  Cls.,  25;  29  Ct.  Cls.,  6;  31  Ct.  Cls.,  35;  U.  S.  v.  Tyler  (105 
U.  S.,  244). 

4  See  25  Op.  Atty.  Gen.,  185,  July  11, 1904,  and  15  Ct.  Cls.,  185.  See  also  United 
States  V.  Tyler,  105  U.  S.,  244,  Oct.,  1881;  Wood  v.  U.  S.,  107  U.  S.,  417;  and  VIII 
Comp.  Dec,  443,  Jan.  11,  1902.  If  a  former  oflficer  by  special  act  of  Congress  is  ap- 
pointed major  in  the  Army  and  immediately  retired,  he  must  take  the  oath  of  office. 
(19  Op.  Atty.  Gen.,  283;  U.  S.  v.  Gillmore,  189  Fed.  Rep.,^  762.) 

*  A  retired  officer,  upon  conviction,  may  be  sentenced  similarly  to  an  officer  on  the 
active  list,  except  that  the  punishments  of  suspension  and  loss  of  files  or  relative  rank 
are  not  appropriate  to  the  status  of  a  retired  officer. 


RETIREMENT  I  G  2  d.  993 

I G  2  d.  It  having  been  reported  that  a  retired  officer  against  whom 
there  were  pending  proceeaings  for  ahmony  by  his  wife  was  about  to 
leave  the  United  States  to  avoid  the  same,  lieldj  that  it  would  be  legal 
for  the  proper  military  authority  to  require  the  officer  to  remain  within 
the  junsdiction  of  the  civil  court  in  which  he  had  been  proceeded 
against ;  the  object  being  to  protect  the  service  from  the  disgrace  which 
he  would  cast  upon  it  by  evading  his  obhgations  in  such  a  case.  C, 
5946,  Mar.  2,  1899. 

I  G  2  e.  Held  that  under  the  principle  which  exempts  from  taxation 
by  a  State  the  salary  of  an  officer  of  the  United  States,  the  salary  of 
a  retired  Army  officer  is  equally  exempt  from  such  taxation  with  the 
salary  of  officers  on  the  active  list  of  the  Army.  C.  14582,  Oct.  15, 
1907;  22521,  Dec.  19,  1907. 

I  G  2  f .  Held  that  a  retired  officer  holds  office  within  the  meaning 
of  section  1223,  R.  S.,  which  provides  for  the  vacation  of  his  office  by 
an  officer  of  the  Army  who  accepts  or  holds  any  appointment  in  the 
diplomatic  or  consular  service  of  the  Government.^  C.  HH8,  Bee. 
15,  1911. 

I  G  3  a  (1 ) .  A  retired  officer  may  hold  any  Federal  office  to  which 
he  may  be  elected  by  the  people  or  appointed  by  the  President.^  C. 
2301,  Mar.  8, 1906;  4051,  Apr.  25,  1898;  16823,  Sept.  13, 1904;  17613, 
Mar.  6,  1905.  Held  that  he  can  not  accept  any  position  which  is 
incompatible  with  his  position  as  a  retired  officer.  Held,  further, 
that  except  as  above  he  can  not  accept  any  office  the  salary  of  which 
is  more  than  $2,500  per  year  otherwise  than  one  under  the  direction 
of  the  Chief  of  Engineers  m  connection  with  river  and  harbor  improve- 
ments.3  C.  14399,  Apr.  8,  1903;  19353,  Mar.  14,  1906,  and  June  23, 
1909.  Held,  further,  that  he  may  accept  the  position  of  Member  of 
Congress.*     0.  2301,  Oct.  22,  1910. 

I  G  3  a  (2)  (a).  Retired  Army  officers  are  precluded  from  holding 
diplomatic  and  consular  offices  by  section  1223,  R.  S.  {R.  29, 1,  June, 
1869),  and  this  is  the  only  existing  prohibition.^  C.  2301,  Mar.  8, 
1906;  14399,  Apr.  8,  1903.  There  is  no  prohibition  against  their 
holding  commissions  in  the  mihtary  forces  other  than  the  Regular 
Army,  whether  militia  or  volunteers,  and  whether  appointed  by  the 
President  or  governors  of  States.  C.  4051,  Apr.  25,  1898.  Section  2 
of  the  act  of  July  31,  1894  (28  Stat.  205),  recognizes  the  legality  of 
appoiatments  of  retired  officers  by  the  President,  by  and  with  the 
consent  of  the  Senate,  and  such  onice  may  be  office  in  the  volunteer 
force  as  well  as  any  other  branch  of  the  Government,  except  the 

1  See  Badeau  v.  U.  S.,  30  U.  S.,  439. 

2  See  15  Op.  Atty.  Gen.,  306;  19  id.,  283;  22  id.,  176  and  199;  Meigs  v.  U.  S.  (19  Ot. 
Cls. 497);  Converse  1;.  U.  S.  (62  U.  S., 464);U.  S.  v. Brindle(110U.  S.,  688);  U.  S.  v.  Saun- 
ders (120  U.  S.,  126). 

3  See  sec.  7,  act  of  June  2,  1896  (29  Stat.  235),  and  sec.  2,  act  of  July  31,  1894  (28 
Stat.  205).    See  II  Comp.  Dec,  596,  June  12,  1896. 

*  See  par.  231,  Dig.  2d  Comp.  Dec,  Vol.  IV.,  Feb.  24, 1894.  Held  that  the  position 
of  assistant  general  treasurer  and  inspector  general  for  disabled  volunteer  soldiers  is 
not  an  office  of  the  United  States  within  the  meaning  of  the  act  of  July  31,  1894  (28 
Stat.  205),  and  can  be  filled  by  a  retired  Army  officer  whose  salary  exceeds  $2,500  per 
year.    See  also  VIII  Comp.  Dec,  443,  Jan.  11,  1902,  and  38  Ct.  Cls.,  428. 

«  See  15  Op.  Atty.  Gen.,  306,  June  11,  1877,  and  407,  Dec  11,  1877.  See  19  id. 
283  and  609,  and  21  id.,  510,  Mar.  26, 1897,  and  Badeau  v.  U.  S.  (130  U.  S.,  439). 

That  a  resignation  of  a  second  office,  the  acceptance  of  which  nas  operated  to  vacate 
an  office  previously  held,  will  not  work  a  reinvestiture  of  the  original  office,  see  In  re 
Corliss,  11  E.  I.,  643. 

31106°— 12 63 


994  RETIREMENT  I   G   3   a  (2)   (h) . 

Regular  Army.  And  assuming  that  a  retired  officer  holds  an  office 
within  the  meaning  of  this  statute,  governors  of  States  may  appoint 
them  officers  of  Volunteers,  provided  their  annuar  compensation  as 
retired  officers  is  less  than  $2,500,  even  if  it  should  he  held  that  they 
do  not  come  within  the  description  of  ''officers  of  the  Regular  Army" 
as  that  term  is  used  in  the  tenth,  eleventh,  and  thirteenth  sections  of 
the  act  of  April  22,  1898.     C.  4051,  Apr.,  1898;  22500,  Dec.  19, 1907. 

I  G3  a  (2)  (6).  The  act  of  Congress  approved  July  31,  1894  (28 
Stat.  205),  provides  that  ''no  person  who  holds  an  office  the  salary  or 
annual  compensation  attached  to  which  amounts  to  the  sum  of  two 
thousand  five  hundred  dollars^  shall  be  appointed  -  to,  or  hold  any 
other  office  to  which  compensation  is  attached  unless  specially  hereto- 
fore or  hereafter  specially  authorized  thereto  by  law;  but  this  shall 
not  apply  to  retired  officers  of  the  Army  or  Navy  whenever  they  may 
be  elected  to  public  office,  or  whenever  the  President  shall  appoint 
them  to  office  by  and  with  the  advice  and  consent  of  the  Senate." 
This  legislation  seems  to  assume  that  a  retired  officer  holds  a  public 
office.  But  that  a  retired  officer  does  not  hold  an  office  has  not 
always,  nor  even  generally,  been  conceded.^  But  irrespective  of  this 
consideration  the  legislation  does  not  apply  to  those  whose  salaries 
are  less  than  $2,500.  C.  1121,  Mar.,  1895;  2301,  May,  1896;  8126, 
May,  1900. 

I  G  3  a  (3).  Held  thsit,  under  the  opinion  of  the  Attorney  General  of 
June  11,  1877,  distinguishing  between  the  receiving  of  compensation 
for  extra  services  ^  and  of  compensation  for  two  distinct  (and  not  in- 
compatible) offices,  a  retired  officer  could  legally  hold  the  office  of  a 
clerk  in  the  Quartermaster  Department,  and  receive  the  pay  of  such 
office,  while  at  the  same  time  retaining  his  office  in  the  Army  and 
receiving  the  pay  of  the  sama.^     R.  43,  197,  Feh.,  1880. 

1  In  people  v.  Duane,  121  N.  Y.,  367,  the  Court  of  Appeals  of  N.  Y.  held,  in  a  forcible 
and  elaborate  judgment,  that  a  retired  officer  did  not  hold  an  office  within  the  meaning 
of  a  statute  of  that  State  authorizing  the  appointment  of  aqueduct  commissioners 
and  providing  that  "they  and  their  successors  shall  hold  no  other  Federal,  State,  or 
municipal  office  except  the  offices  of  notary  public  and  commissioner  of  deeds." 
The  question  as  to  whether  retired  officers  hold  offices  was  treated  as  doubtful  by  the 
Attorney  General  in  an  opinion  as  to  whether  Gen.  Sickles,  a  Member  of  Congress, 
could  receive  his  pay  as  a  retired  officer,  20  Op.,  686;  but  in  this  matter  Second 
Comptroller  Mansur  held  in  an  elaborate  decision  dated  Feb.  24,  1894,  that  "the 
place  and  rank  on  the  retired  list  held  by  an  officer  of  the  Army  is  a  military  office 
under  the  United  States."  The  following  cases  treat  retired  officers  as  holding  offices: 
Tyler  v.  U.  S.,  16  Ct.  Cls.,  223;  U.  S.  v.  Tyler,  105  U.  S.,  244;  Wood  v.  U.  S.,  15  Ct.  Cls., 
151,  and  107  U.  S.,  414;  Franklin  v.  U.  S.,  29  Ct.  Cls.,  6;  Badeau  v.  U.  S.,  130  U.  S., 
439;  State  v.  De  Gress,  53  Texas,  387;  case  of  Maj.  Smith,  19  Op.  Atty.  Gen.,  283. 
See  also,  II  Comp.  Dec,  7.  Decision  of  Comptroller  in  the  case  of  Capt.  Geddes,  VII 
Comp.  Dec._  (dated  Feb.  6,  1901).  In  the  cases  of  Tyler  and  Winthrop  supra,  the 
Court  of  Claims  held  that  retired  officers  of  the  Army  are  officers  within  the  meaning  of 
section  5498,  R.  S.,  which  prohibits  officers  of  the  United  States  from  acting  as  agents 
or  attorneys  for  prosecuting  claims  against  the  Government. 

^  A  retired  officer  may  be  employed  by  the  War  Department  to  supervise  work 
where  he  could  not  have  been  assigned  to  that  duty.     25  Ct.  Cls.,  296,  also  38  id.,  39. 

A  retired  officer  is  not  prohibited  by  law  from  holding  office  in  an  executive  depart- 
ment, nor  from  receiving  the  salary  thereof  in  addition  to  his  retired  pay.  Collins  v. 
U.  S.,  15  Ct.  Cls.,  22;  Meigs  v.  U.  S.,  19  id.,  497;  Yates  v.  U.  S.,  25  id.  296;  19  Op. 
Atty.  Gen.,  283.  If  the  retired  officer  receives  $2,500  or  more,  the  holding  of  any  other 
office  is  forbidden  by  sec.  2  of  the  act  of  July  31,  1894  (28  Stat.  205),  except  as  specified 
in  that  act.  See  also  sec.  7,  act  of  July  3,  1896  (29  Stat.  235),  as  to  employment  of 
retired  officers  on  rivers  and  harbors. 

2  15  Op.  Atty.  Gen.  306.  And  see  id.  608,  and  16  id.  7,  based  like  the  opinion 
referred  to  in  the  text,  mainly  upon  the  ruling  of  the  United  States  Supreme  Court 
in  Converse  v.  United  States,  21  Howard,  463. 


RETIREMENT   I   G   3  b.  995 

I G  3  b.  Held  that  a  retired  officer  may  accept  any  State  office  in  the 
absence  of  a  State  statute  to  the  contrary.  C.  8327 ^  June  SO,  1897; 
K.  31,  136,  Jan.,  1871;  41,  662,  Aug.,  1879;  42,  165,  Feb.,  1879; 
C.  22500,  Dec.  19, 1907.  Thus,  he  may  accept  the  position  of  mayor 
of  a  city.  C.  2301,  Nov.  23, 1905,  July  22, 1908,  and  Mar.  13,  1909;  ^ 
4051,  Apr.,  1898;  14063,  Jan.  27,  1903.  Or  he  may  accept  the  posi- 
tion as  member  of  the  State  legislature.  C.  2301,  July  22,  1908, 
and  July  27,  1910.  Held,  however,  that  if  he  is  on  dutjr  with  the 
militia  of  a  State,  it  would  be  incompatible  with  the  spirit  of  his 
duty  for  him  to  accept  the  position  of  member  of  a  State  legislature. 
a  2301,  Dec.  14,  1910. 

Held  that  he  may  accept  the  position  of  adjutant  general  of  a  State, 
or  colonel  of  a  regiment  m  the  National  Guard  of  a  State.  0.  17631, 
Mar.  6,  1905;  17764,  Mar.  24,  1905.  Or  while  on  coUege  duty  a 
commission  in  the  National  Guard.  C.  22170,  Oct.  5,  1907.  Held 
also  that  he  may  hold  the  position  of  prison  physician.  G.  2301, 
Sept.  13,1911. 

I  H  1.  Held  that  there  is  no  objection  to  a  retired  officer  acting  as 
counsel  for  an  officer  before  a  court-martial  or  retiring  board,  and  to 
receiving  such  fees  or  other  compensation  as  may  be  agreed  upon  by 
his  client  and  himself.     C.  26975,  July  5,  1910. 

I  I.  There  is  no  provision  of  law  or  regulation  authorizing  the 
payment  of  the  bunal  expenses  of  a  retired  officer.  Army  regula- 
tion 85  (87  of  1910)  is  limited,  in  the  cases  of  officers  dying  at  a 
military  post,  to  those  who  die  ''when  on  dut}^"  there,  and  therefore 
does  not  include  retired  officers  who  may  die  at  a  military  post. 
C.  3662,  Nov.,  1897;  22330,  Nov.  8,  1907. 

I  K  1.  The  act  of  April  21,  1904  (33  Stat.  225),  authorizes  the 
assignment  of  a  retired  officer  "to  active  duty"  in  certain  employ- 
ments which  are  mentioned  in  the  act;  held,  that  the  status  of  ''active 
duty"  which  is  provided  for  in  the  act,  differs  from  the  status  of  an 
officer  in  "active  service,"  who  has  never  been  placed  on  the  retired 
list. 

In  military  phraseology,  the  term  active  service  must  be  taken 
as  indicating  that  an  officer  on  such  service  has  not  been  retired, 
and  it  follows  that  an  officer  on  the  retired  list  may  be  detailed  to 
active  duty  but  is  not  thereby  removed  from  the  retired  list,  or 
restored  to  active  service.  The  incidents  of  the  employment  of  a 
retired  officer  in  the  operation  of  competent  orders  may  bear  a  close 
resemblance  to  active  service,  but  differs  from  it  in  the  fact  that 
whatever  may  be  the  extent  and  character  of  such  employment  it 
is  not  and,  in  the  absence  of  furthering  legislation,  it  can  not  be 
regarded  as  restoring  the  officer  to  the  active  list. 

The  general  status  therefore  of  retired  officers  who  under  competent 
order  are  placed  upon  active  duty  is  one  involving  pay  and  allow- 
ances given  to  them  under  the  various  statutes  applying  to  their 
cases.  The  status  of  active  duty  in  all  such  cases  is  but  temporary, 
and  is  maintained  only  so  long  as  the  detail  is  continued.  The 
status  of  an  officer  on  active  service  is  continuous,  and  is  maintained 
by  him  until  he  either  leaves  the  service  entirely  or  is  placed  upon 

^  See  Reed  v.  Sehon,  2d  Cal.  App.  Reports,  55  (83  Pac.  Rep.,  77).  Rehearing 
denied  by  the  supreme  court  of  California,  Dec.  22,  1905.  See,  also,  15  Op.  Atty. 
Gen.,  306,  June  11,  1877.  See  the  act  of  Mar.  3, 1883  (22  Stat.  567),  which  authorizes 
retired  Army  officers  to  hold  elective  or  appointive  office  in  a  Territory, 


996  RETIREMENT  I   K  2   a. 

the  retired  list.  While  a  duty  status  is  given  to  the  various  retired 
oflicers  for  certain  definite  purposes,  nowhere  do  we  find  the  sug- 
gestion that  such  active  duty  removes  them  from  the  retired  list 
and  places  them  once  more  upon  the  active  list  of  the  Army.  The 
tlifference  between  the  retired  list  and  the  active  list  is  one  which 
does  not  depend  on  the  question  of  pay  which  an  officer  may  be 
drawing  under  any  given  detail.  C.  24306,  Feb.  25,  1909;  23623, 
Oct  11,  1909;  23760,  Aug.  22,  1908. 

I  K  2  a.  Held  that  the  phrase  ''staff  duties  not  involving  service 
with  troops"  which  occurs  m  the  act  of  April  23,  1904  (33  Stat.  225), 
contemplates  only  staff  duties  in  connection  with  the  existing  military 
establishment.  Held  further  that  the  above  law  can  not  be  held 
to  authorize  the  detail  of  retired  officers  on  full  pay  to  the  duty  of 
familiarizing  themselves  with  the  facts  in  pending  litigation  in  order 
that  they  may  appear  as  witnesses.     C.  23916,  Jan.  12,  1911. 

I  K  2  b.  The  act  of  April  23,  1904  (33  Stat.  264),  authorizing  the 
detail  of  retired  officers  ''with  their  consent  to  staff  duties  not  involv- 
ing service  with  troops,"  should  be  read  in  connection  with  the 
several  enactments  of  Congress  which  fix  the  commissioned  strength 
and  prescribe  the  duties  of  the  several  staff  departments.  Held, 
that,  except  in  case  of  unusual  emergency,  an  officer  of  the  retired 
list  can  not  properly  be  assigned  to  staff  duty  which,  under  the  law, 
officers  of  the  staff  departments  are  expected  to  perform.  C.  22635, 
Jan.  18,  1908.  Held,  also,  that  the  views  above  expressed  would  not 
apply  in  strictness  to  the  assignment  of  a  retired  officer  to  an  employ- 
ment in  a  staff  department  the  duties  of  which  are  performed — not  by 
a  commissioned  officer,  but  by  a  civilian;  such  would  be  the  case 
when  a  retired  officer  is  employed  as  an  inspector  of  articles  supplied 
under  contract.  Such  employment,  however,  would  be  subject  to 
the  objection  that  the  rank  of  the  retired  officer  would  be  re^dved  by 
his  assignment  to  active  duty,  and  considerable  friction  and  incon- 
venience would  doubtless  arise  were  he  assigned  to  duty  under  a 
junior  in  rank.  For  the  reason  above  stated  such  assignments  are 
believed  to  be  inexpedient  and  are  not  recommended.  C.  16311, 
Jan.  2,  1906;  22635,  Jan.  18,  1908. 

I  K  2  0.  Held  that  the  limitation  in  the  act  of  April  23,  1904, 
expressed  by  the  words  "service  with  troops"  as  contained  in  the 
clause  "staff  duties  not  involving  service  with  troops"  is  fully  accom- 
pfished  when  details  of  retired  officers  to  staff  duties  are  so  limited 
that  they  are  called  upon  to  exercise,  in  representation  of  superior 
authority,  functions  of  command  over  organizations  of  troops  m  the 
Regular  Army.  Held  further  that  a  retired  officer  may  be  assigned, 
with  his  consent,  to  the  duty  of  librarian  at  the  service  schools  (C. 
20030,  July  11,  1906),  or  to  duty  in  charge  of  construction  work  in 
the  Quartermaster's  Department.     C.  29052,  Oct.  3, 1911. 

I  K  2  d.  Held  that  a  retired  officer  on  active  duty,  without  troops, 
at  Fort  Bayard,  N.  Mex.,  should  be  furnished  with  quarters  in  kind, 
after  the  staff  of  the  hospital  has  been  provided  for;  and  if  no  quarters 
remain,  authority  to  hire  the  necessary  quarters  should  be  furnished. 
C.  25890,  Dec.  6, 1909. 

I  K  2  e.  The  act  of  March  3,  1909  (35  Stat.  836),  authorized  the 
Secretary  of  War  to  appoint  a  court  of  inquiry  consisting  of  five 
officers  of  the  United  States  Army  to  hear  and  report  upon  all  charges 
and  testimony  relating  to  the  shooting  affray  which  took  place  at 


RETIREMKNT  I  K  2  f .  097 

Brownsville,  Tex.,  on  the  night  of  August  13  and  14,  1906.  Held  that 
retired  officers  were  eligible  for  such  duty.^  G.  207 5 4- A,  May  25, 
1909, 

I  K  2  f.  Held  that  under  existing  law  retired  officers  may,  with 
their. consent,  be  appointed  members  of  general  courts-martial,  and 
that  courts  composed  entirely  of  retired  officers  may  be  convened  for 
the  trial  of  officers  and  enhsted  men.     C.  28289,  May  8,  1911. 

I  K  3  a.  A  retired  officer  was  detailed  on  college  duty  under  the 

Erovisions  of  section  1225  R.  S.,  as  amended  by  the  act  of  Novem- 
er  3,  1893  ^  (28  Stat.  7).  Held  that  he  should  be  regarded  as  on 
active  duty  within  the  meaning  of  the  act  of  March  2,  1905  (33  Stat. 
831),  and  entitled  to  his  full  retired  pay,  unless  he  is  a  colonel  or 
lieutenant  colonel,  in  which  case  he  will  receive  the  full  pay  and 
allowances  of  a  major  on  the  active  Hst.     C.  18199,  June  26,  1905. 

I  K  3  b.  As  section  1225  R.  S.  is  permissive  in  character  in  its 
operation  in  the  Territories,  held  that  an  officer  on  the  active  or  retired 
list  may  be  assigned  to  duty  at  a  coUege  or  university  in  the  Philip- 
pine Islands  wliich  has  a  capacitv  to  educate  at  the  same  time  not  less 
than  150  male  students.     C.  16485,  June  21,  1904. 

I  K  3  0.  Held  that  section  1225  R.  S.  contains  nothing  that  is 
locally  inapphcable  to  Porto  Rico,  but  that,  on  the  contrary,  its  appU- 
cation  to  tliat  island  is  of  importance  to  the  United  States  to  further 
its  military  poHcy  in  respect  of  the  dissemination  of  military  instruc- 
tion, and  that  under  said  section  a  retired  officer  of  the  Army  may 
be  detailed  to  an  institution  of  learning  in  Porto  Rico.  C.  27865, 
Feh.  15,  1911. 

I  K  4.  The  act  of  May  11,  1908  (35  Stat.  108),  as  amended, 
authorizes  six  months*  pay  to  the  widow  of  an  officer  or  enhsted  man 
who  dies  on  the  ''active  hst";  lield  that  a  retired  officer  assigned  to 
''active  duty,"  in  the  operation  of  the  act  of  April  21,  1904  (33  Stat. 
225),  is  not  an  officer  of  the  "active  list"  within  the  meaning  of  the 
act  of  May  11,  1908.     C.  23760,  Aug.  22,  1908.^ 

I  K  5.  Held  that  a  quartermaster  may  not  issue  or  sell  to  retired 
officers,  even  if  they  are  on  active  duty,  furniture  which  he  has  pur- 
chased under  the  terms  of  the  act  of  May  11,  1908  (35  Stat.  119). 
C.  23623,  Oct.  11,  1909. 

ILL  Officers  on  the  retired  list  are  entitled  to  longevity  pay^ 
which  had  accrued  previous  to  retirement.  Held  that  tliis  limitation 
does  not  hold  as  to  those  who  are  retired  on  account  of  wounds 
received  in  battle.'^     C.  15878,  Pel.  9,  1904. 

I M  1.  Where  an  officer  did  not  make  the  journey  to  his  home  under 
the  order  retiring  him  until  one  year  and  a  half  after  his  retirement, 
liis  claim  for  mileage  was  disapproved  by  the  Secretary  of  War  June  5, 
1890,  "for  the  reason  that  the  journey    *     *     *     to  the  place  he  now 

^  For  detail  of  court,  see  Special  Orders,  No.  79,  War  Department,  1909.  For  report 
of  court,  see  Senate  Document  No.  701  (61st  Cong.,  3d  sess.).  All  of  the  members  were 
retired  officers,  but  the  recorder  was  on  the  active  list. 

2  See  20  Op.  Atty.  Gen.,  687. 

^  See  16  Ct.  Cls.,  223.  That  an  officer  placed  upon  the  retired  list  can  not,  by  an 
Executive  order,  be  allowed  any  pay  greater  than  or  additional  to  that  authorized  by 
statute  to  be  paid  to  retired  officers.  See  15  Op.  Atty.  Gen. ,  442.  The  rank  and  pay  of 
retired  officers  are  matters  within  the  control  of  Confess.  Wood  v.  U.  S.,  15  Ct.  Cls., 
151,  and  107  U.  S.,  414.     See  also  105  U.  S.,  244. 

*  Also  no  time  can  be  allowed  for  time  served  on  active  duty  after  retirement.  XV 
Comp.  Dec,  235,  Oct.  13, 1908.     See  act  of  Mar.  2,  1903  (32  Stat.  932). 


998  RETIREMENT  I  M  2. 

calls  his  home  at  so  long  a  period  after  the  date  of  his  retirement 
can  not  be  considered  as  falling  within  the  rule  of  giving  an  officer 
mileage  when  retired,  to  enable  him  to  resume  his  residence  at  his 
home.i    *    *    *."     G.  2978,  Mar.,  1897. 

I  M  2.  Held  that  a  retired  officer  is  entitled  to  the  mileage  and 
witness  fees  of  a  civilian  witness  when  subpoenaed  as  a  witness  before 
a  general  court-martial. ^     C.  19611,  Apr.  28,  1906. 

INI.  Held  that  an  officer  may  be  wholly  retired  ^  for  being  ''men- 
tally incapacitated  for  performing  the  duties  of  an  officer  of  the  Army 
and  that  such  incapacitation  does  not  result  from  long  and  faithful 
service,  or  any  cause  incident  to  the  service,  but  from  natural  causes 
which  existed  prior  to  his  entry  into  the  military  service."  C.  10820, 
July  9,1901. 

I  N  2.  The  provision  of  section  1253,  R.  S.,  that  an  officer  shall  not 
''be  wholly  retired  from  the  service  without  a  full  and  fair  hearing 
before  an  Army  retiring  board,  if,  upon  due  summons  he  demands  it," 
may  be  said  to  entitle  an  officer  subject  to  be  thus  retired,  to  appear 
before  the  board  (with  counsel  if  desired) ,  and  to  introduce  testimony 
of  his  own,  and  cross-examine  the  witnesses  examined  by  the  board, 
including  the  medical  members  of  the  board  who  may  have  taken  part 
in  the  medical  examination  and  have  stated  or  reported  to  the  board 
the  result  of  the  same.''  R.  23,  626,  Aug.,  1867;  31,  603,  Aug., 
1871.  If  the  officer  does  not  elect  to  appear  before  the  board  when 
summoned,  he  waives  the  right  to  a  hearing,  and  can  not  properly 

^  In  this  case  the  Comptroller  of  the  Treasury  later  held  (vol.  4,  p.  175)  that  an  officer 
"retired  and  ordered  to  repair  to  his  home  should  promptly  obey  the  order  and  should 
be  deemed  to  have  selected  the  place  to  which  he  repairs  wit];iin  a  reasonable  time  as 
his  home." 

2  See  X  Comp.  Dec,  51,  July  15,  1903. 

^  It  will  be  instructive  to  note  some  of  the  causes  for  which  officers  have  been  wholly 
retired ,  as  follows:  For ' '  chronic  alcohohsm  "  ( C.  28224  and  28288,  May  8, 1911);  for  being 
"utterly  unfit  for  the  performance  of  the  duties  required  of  him  by  law  and  regulations 
under  Ms  present  commission,  and  such  unfitness  is  not  the  consequence  of  his  military 
service.  His  mental  condition  is  abnormal,  and  his  unfitness  for  duty  is  clearly  due 
to  such  mental  condition,  but  he  is  not  insane,  and  the  abnormal  condition  which  the 
board  has  discovered  to  exist  antedates  his  admission  to  the  medical  staff  of  the  Army  " 
( C.  10820,  July  6, 1910) ;  for  "mental  inaptitude  which  existed  before  entering  into  the 
service  and  which  has  been  found  to  be  progressive  and  which  has  been  aggravated 
and  intensified  by  the  excessive  use  of  alcoholic  stimulants  while  in  the  service"  (C. 
26234,  Apr.  24,  1911);  for  "age  and  corpulency,  which  condition  existed  prior  to  his 
entry  into  the  regular  establishment"  (C.  28224,  Apr.  27,  1911);  for  "constitutionally 
weak  condition  of  the  heart,  lungs,  and  stomach"  and  for  * '  valvular  weakness  of  the  heart 
preexistent  to  his  entry  into  the  service  " ;  for  "  physical  weakness  preexistent  to  his  en- 
try into  service";  for  "incapacity  resulting  from  immoral  conduct";  for  "sickness  not 
an  incident  to  the  service  " ;  for  "  neglecting  to  properly  care  for  a  disease  originally  con- 
tracted in  line  of  duty  " ;  for  "  insanity  not  incident  to  the  service  " ;  for  "  improper  use 
of  stimulants  and  anesthetics";  for  "general  anemia  and  epilepsy  not  incident  to  the 
service";  for  "mental  alienation  of  the  form  known  as  melancholia  of  persecution 
which  existed  prior  to  entry  into  service";  for  "neurasthenia  not  an  incident  of  the 
service";  for  "cardiac  dilatation  and  fatty  degeneration  existing  prior  to  entry  into 
service";  for  "disability  resulting  from  abuse  of  narcotics  and  stimulants";  for  "dis- 
ability brought  about  by  the  excessive  use  of  morphine  and  cocaine";  for  "disability 
resulting  from  immoral  conduct";  and  for  "mental  incapacity  existing  prior  to  his 
entry  into  service."     C.  28224,  Apr.  27,  1911. 

^  The  provisions  of  sees.  1245  and  1252,  R.  S.,  authorizing  the  President  to  ^'wholly 
retire"  an  officer,  are  not  inconsistent  with  those  of  sec.  1229  and  the  ninety-ninth 
article  of  war,  prohibiting  the  dismissal  of  officers  by  executive  order  in  time  of  peace. 
Sections  of  the  same  statute,  as  these  are  (see  Ilevised  Statutes,  post),  must  all  bo 
giv^en  equal  force  and  effect,  unless  repugnant  and  irreconcilable. 


KITIREMENT  I   N   3.  999 

take  exception  to  a  conclusion  arrived  at  in  his  absence.^  B.  20.  621, 
May,  1866. 

I  N  3.  The  provisions  of  section  1275,  R.  S.,  that  an  officer  wholly 
retired  ^  shall  receive,  upon  retirement,  one  year's  pay  and  allowances, 
entitles  such  an  officer  to  receive  a  sum  equal  to  the  total  of  one  year's 
pay  and  all  the  pecuniary  allowances  of  an  officer  of  his  rank.  R.  29, 
360,  Oct.,  1869.  And  held,  that  the  fact  that  an  officer,  at  the  time 
of  being  wholly  retired,  was  under  a  sentence  of  suspension  from  rank 
and  pay,  did  not  affect  his  right  to  receive  such  full  sum  upon  the 
retirement.  R.  29,  645,  Jan.,  1870.  But  officers  wholly  retired, 
unhke  officers  otherwise  retired,  are  not  entitled  upon  retirement  to 
the  authorized  change  of  station  allowance  of  baggage,  etc.,  to  their 
homes.     C.2071,  Feb.,  1898. 

I  N  4.  An  officer  when  wholly  retired,  becomes  a  civiUan  and  no 
authority  exists  for  shipping  his  goods  to  his  home  at  public  expense. 
C.2071,  Oct.  6,  1908. 

I  O.  Held,  that  an  officer  upon  retirement  may  designate  a  city  in 
Porto  Rico  as  his  home,  and  thereby  become  entitled  to  transporta 
tion  to  that  nlace  for  his  baggage.  C.  23915,  Oct.  2,  1908.  Held 
further,  that  he  is  not  entitled  to  a  transportation  request  for  such 
sea  travel  for  himself,  but  that  he  must  pay  for  the  transportation  by 
sea,  subject  to  subsequent  reimbursement  by  the  Pay  Department 
for  the  expenses  actually  incurred  by  him  in  the  performance  of  the 
journey.     C.  23915,  Nov.  3,  1908. 

II  A  1  a.  A  soldier  who  had  been  previously  discharged  for  dis- 
ability reenhsted  by  concealing  the  fact  of  such  discharge,  and  after 
having  served  30  years,  by  successive  reenlistments,  applied  for 
retirement.  Held,  that  he  was  entitled  to  be  retired  on  such  service, 
since  the  only  requisite  in  the  act  of  September  30,  1890  (26  Stats. 
504),  is  that  the  soldier  shall  have  rendered  and  the  Government 
received  from  him  30  years'  service  as  an  enhsted  man.  C.  2022, 
Jan.  29,  1896. 

II  A  1  b.  An  enhsted  man  was  held  to  serve  in  an  enhstment 
which  was  fraudulent,  due  to  his  concealing  the  fact  at  enlistment 
that  he  had  been  previously  discharged  without  honor.  Held,  that 
in  view  of  the  fact  that  the  Government  continued  him  in  service 
without  trial,  his  service  previous  to  his  discharge  without  honor,  as 
well  as  his  service  subsequent  thereto  counted  toward  retirement. 
C.  22855,  Mar.  11,1908. 

II  A  1  c.  An  enhsted  man  was  held  to  service  in  an  enlistment 
which  was  fraudulent,  due  to  his  conceahng  the  fact  at  enhstment 
that  he  had  been  dishonorably  discharged.  Held,  that  the  service 
subsequent  to  the  dishonorable  discharge  was  valid  for  retirement, 
but  the  service  previous  to  the  dishonorable  discharge  was  not. 
C.  27073,  July  22,  1910;  27507,  Nov.  19,  1910. 

II  A  1  d.  Held,  that  time  actually  served  in  a  fraudulent  enlist- 
ment without  a  discharge  from  a  previous  enlistment  counts  for 

^  It  is  held  by  the  Attorney  General  (16  Op.  20)  that  where  an  officer  of  the  Navy- 
had  been  retired  without  having  had,  through  no  fault  of  his  own,  the  full  and  fair 
hearing  before  the  board  to  which  he  was  entitled  by  sec.  1455,  R.  S.,  and  the  vacancy 
on  the  active  list  occasioned  by  his  retirement  had  not  been  filled,  the  President 
would  be  authorized  to  revoke  the  order  of  the  retirement  so  that  the  officer  might 
have  the  proper  hearing,  before  final  action  in  hie  case. 

2  After  being  wholly  retired  an  officer  becomes  a  private  citizen  (19  Ct.  Cls.,  338). 


1000  RETIREMENT  XI  A  2. 

retirement.!     C.  355,  Sept.,  1894;  ^022,  Jan.,  1896;  3777,  Oct.  2L 
1899;  7108,  Oct.,  1899. 

II  A  2.  A  marine,  after  serving  nine  years  and  six  months  in  the 
Marine  Corps,  deserted  therefrom  in  1866,  and  subsequently  while 
thus  in  desertion  served  about  16  years  in  the  Army.  Held  that  if 
his  service  in  the  Marine  Corps  during  the  Civil  War  was  ''active 
service"  within  the  meanmg  of  the  act  of  February  14,  1885  (23  Stat. 
305),  as  amended  by  the  act  of  September  30,  1890  (26  Stat.  504), 
he  would  be  eligible  under  said  acts  for  retirement.  C.  6693,  July  3, 
1899. 

II  A  3.  Held  that  service  as  a  commissioned  officer  of  volunteers  or 
in  the  Philippine  Scouts  during  the  War  with  Spain  in  1898  counts 
toward  the  retirement  of  an  enlisted  man.^  C.  12913,  July  25,  1910; 
8696,  Aug.,  1900;  IOO4I,  Mar.  25,  1901;  29270,  Nov.  28,  1911. 

II  A  3  a.  Held  that  there  is  no  law  which  authorizes  service  as  an 
officer  in  the  Philippine  Constabulary  to  be  credited  toward  the 
retirement  of  an  enlisted  man  in  the  United  States  Army.  C.  23327, 
Aug.  11, 1909. 

II  A  4  a.  Held  that  the  term  ''war  service"  in  the  proviso  of  the 
act  of  September  30,  1890  (26  Stat.  504),  relating  to  the  computing 
of  the  period  of  such  service  with  a  view  to  the  retirement  of  enlisted 
men,  included  service  as  a  commissioned  officer  equally  with  service 
as  an  enlisted  man.  P.  U,  ^09,  Dec,  1890;  C.  8473,  June  25,  1900; 
10041,  Mar.  25,  1901.     But  see  C.  22403,  Nov.  23,  1907. 

II  A  4  b.  The  act  of  April  23,  1904  (33  Stat.  264),  provides  that 
* 'hereafter,  in  computing  length  of  service  for  retirement,  credit 
shall  be  given  soldiers  for  double  the  time  of  their  actual  service  in 
China,  Cuba,  the  Philippine  islands,  the  Island  of  Guam,  Alaska,  and 
Panama;  but  double  credit  shall  not  be  given  for  service  hereafter 
rendered  in  Porto  Rico  or  the  Territory  of  Hawaii.  Held  that  "here- 
after," as  used  in  the  clause  above  cited,  fixes  the  date  when  the 
statute  becomes  operative,  viz,  April  23,  1904.  Held,  further,  that 
double  time  should  be  credited  for  service  rendered  in  China,  Cuba, 
the  Philippine  Islands,  Guam,  Alaska,  and  Panama.  Held,  further, 
that  service  rendered  in  Porto  Rico  prior  to  April  23,  1904,  should  be 
counted  double;  subsequent  to  that  date  it  should  be  counted  at  its 
actual  duration.     G.  16443,  June  11,  1904. 

II  A  4  b  (1).  In  computing  the  time  of  service  required  for  retire- 
ment of  an  enlisted  man,  Jield  t\i2it  the  words  "actual  service, "  which 
occur  in  the  act  of  May  26,  1900  (31  Stat.  2 11),  and  in  the  act  of  April 
23,  1904  (33  Stat.  264),  apply  to  a  soldier  who  occupies  a  status  of 
present  with  his  command,  either  for  duty,  sick,  or  in  confinement. 
Held,  further,  that  the  status  so  created  is  different  from  that  occupied 
by  a  soldier  who  is  absent  on  furlough,  during  which  no  actual  service 
is  being  rendered.  Held,  further,  that  if  a  soldier  while  serving 
beyond  the  sea  goes  on  furlough,  such  period  spent  on  furlough  will 
not  be  counted  as  double  time  toward  retirement.  G.  26995,  July 
11  and  29,  1910;  8529,  June  29,  1900;  14187,  Feb.  25,  1903.  Held, 
further,  that  the  date  when  the  soldier  crosses  the  boundary  of  the 
territorial  possession  is  the  date  when  the  actual  service  begins. 
G.  26995,  July  11,1910. 

1  Comptroller  holds  otherwise  in  MSS.  decision  dated  Sept.  28,  1900,  filed  with 
C.  3777. 
2 See  acts  of  Mar.  2,  1903  (32  Stat.  934),  and  June  12,  1906  (34  Stat.  247). 


RETiREMUNT  IT  A  4  1)  (2).  1001 

II  A  4  b  (2).  Held  that  an  enlisted  man  is  entitled  under  the  act  of 
May  26,  1900  (31  Stat.  209),  to  have  service  on  an  Inter-Island  Trans- 
port in  the  Philippine  Islands  count  double  for  the  purpose  of  retire- 
ment.    C.  15311,  Oct.  2, 1903. 

II  A  4  c.  Under  the  act  of  May  26,  1900  (31  Stat.  211),  as  amended 
by  act  of  April  23,  1904  (33  Stat.  264),  service  in  the  Philippine 
Islands,  etc.,  counts  double  "for  purposes  of  retirement.  Under  the 
act  of  February  2,  1901  (31  Stat.  757),  authority  was  granted  for  the 
enlistment  of  native  troops.  Held  that  a  construction  of  these 
statutes  which  would  permit  service  by  natives  of  the  Philippine 
Islands,  in  the  Philippine  Islands,  to  count  double  for  purposes  of 
retirement  is  not  permissible.^     C.  29355,  Jan.  5,  1912. 

II  B  1.  Held  that  retired  enlisted  men  are  not  formally  discharged 
from  the  service  at  the  date  of  their  retirement.^     They  are,  in  fact, 

gensioners;  their  retired  pay  being  in  consideration  of  past  services. 
•y  statute  they  continue  to  be  subject  to  the  Articles  of  War  and  to 
nmitary  orders,  and  to  such  discipline  as  is  consistent  with  their 
status;  but  there  is  no  authority  for  their  employment  on  mihtary 
duty.  C.  24788,  Apr.  17, 1909;  8U5,  June  22, 1900;  10843,  July  12, 
1901;  14336,  May  6, 1903. 

II  B  2.  On  the  question  of  whether  a  retired  post  quartermaster 
sergeant  who  sohcited  by  means  of  a  printed  circular  the  claims  of 
enhsted  men  to  the  20  per  cent  increase  pay  for  foreign  service  should 
be  prosecuted  under  section  5498,  R.  S.,  held  that  the  sergeant  was 
not  prohibited  by  the  statute  from  assisting  in  the  prosecution  of 
claims  mentioned,  in  liis  circular,  nor  was  it  improper  for  any  such 
claimants  to  turn  their  claims  over  to  him.     C.  18202,  June  29,  1905. 

II  B  3.  Held  that  mihtary  control  over  him  in  so  far  as  such  ad- 
ministrative or  disciplinary  control  is  necessary  is  vested  in  the  com- 
manding general  of  the  department  in  which  the  retired  enhsted  man 
resides.     C.  I64OI,  June  1,  1904;  17182,  Nov.  28,  1904. 

II  B  3  a.  Held  that  a  retired  enlisted  man  may  be  tried  for  not 
paying  his  debts.     C.  2716,  Nov.  2,  1896. 

II  B  3  b.  Held  that  a  retired  soldier  may  be  furnished  subsistence 
in  kind  instead  of  the  commutation  allowances  during  the  time  he 
may  be  in  confinement  at  a  military  post  under  military  charges,  and 
either  subsistence  in  kind  or  fuU  commutation  while  en  route  under 
guard  to  or  from  the  post.     C.  3234,  June,  1897. 

II  B  4  a.  Held  that  a  retired  enhsted  man  must  secure  the  permis- 
sion of  the  War  Department  to  reside  abroad.  C.  28028,  Mar.  28, 
1911. 

^  See  Smythe  v.  Fiske,  23  Wall.,  374,  in  which  it  is  held  that  "a  thing  may  be  within 
the  letter  of  a  statute  and  not  within  its  meaning." 

See  also  People  v.  Utica  Ins.  Co.,  15  Johns,  358,  in  which  it  is  held  that  "a  thing 
which  is  withm  the  intention  of  the  makers  of  a  statute  is  as  much  within  the  statute 
as  if  it  were  within  the  letter,  and  a  thing  that  is  within  the  letter  of  the  statute  is  not 
within  the  statute  unless  it  be  within  the  intention  of  the  makers." 

See  also  United  States  v.  Kirby,  7  Wall.,  482,  in  which  it  is  held  that  "all  laws 
should  receive  a  sensible  construction.  General  terms  should  be  so  limited  in  their 
application  as  not  to  lead  to  injustice,  oppression,  or  an  absurd  consequence.  It  will 
always,  therefore,  be  presumed  that  the  legislature  intended  exceptions  to  its  lan- 
guage which  would  avoid  results  of  this  character.  The  reason  of  the  law  in  such 
cases  should  prevail  over  its  letter."  The  language  of  this  latter  citation  is  cited  in 
Hawaii  a;.  Mankichi,  190  U.  S.,  197,  where  other  authorities  to  the  same  effect  are  also 
cited.  ■     - 

2  See  G.  O.  No.  43.  A.  G.  O.,  1889,  and  Digest  2d  Comp.  Dec,  Vol.  Ill,  par,  874, 
Aug.  9,  1888. 


1002  RETIREMENT  II  B  4  b. 

II  B  4  b.  Held,  that  a  retired  enlisted  man  may  not,  without  a 
revocable  license  from  the  Secretary  of  War,  occupy  quarters  on  a 
military  reservation  unless  he  is  employed  on  the  reservation.  C. 
304,  Sept.  13,  1894;  l^^O,  June  5,  1895;  1968,  Jan.  15,  1896;  2699, 
Oct.  26, 1896. 

II  B  5.  Held,  that,  as  a  retired  soldier  is  a  part  of  the  Army,  he  is 
entitled  to  admission  to  the  Government  Hospital  for  the  Insane. 
Held,  further,  that  the  cost  of  transporting  him  and  attendants 
should  not  be  charged  against  his  pay.  C.  18746,  Oct.  18,  1905; 
25245,  July  8,  1909. 

II  B  6.  A  retired  soldier  may 'not  be  admitted  to  the  Soldiers' 
Home.     C.  11790,  Jan.  15,  1902;  18722,  Oct.  18,  1905. 

II  B  7.  An  enlisted  man,  three  years  after  his  retirement,  applied 
for  transportation  to  his  home,  under  the  provisions  of  General  Order 
43,  Adjutant  General's  office,  1889.  Held  that  by  not  availing  him- 
self within  a  reasonable  time  after  retirement  of  his  right  to  transporta- 
tion and  subsistence  he  had  waived  his  right  to  the  same.^  C.  2978, 
Mar.  2,  1897. 

II  C  1.  Held,  that  the  pay  of  a  retired  soldier  may  be  stopped  to 
make  good  an  overpayment.     0.  26161,  Apr.  3,  1911. 

II  C  2.  As  the  post  exchange  is  a  Government  instrumentality, 
held  that  the  pay  of  a  retired  enlisted  man  may  be  stopped  to  reim- 
burse the  post  exchange  funds  in  payment  of  a  debt.  Held,  further, 
that  it  may  be  stopped  to  reimburse  company,  hospital,  bakery,  post, 
and  regimental  funds.     C.  3171,  June  7, 1897. 

II  D  1 .  There  is  no  statute  of  the  United  States  or  regulation  of 
the  War  Department  which  prevents  a  retired  enlisted  man  of  the 
Army  from  accepting  an  office  or  employment  under  either  the 
United  States  or  a  State.  Held,  therefore,  that  no  law  or  regulation 
prevents  a  retired  enlisted  man  from  organizing  and  drilling  a  militia 
company.     C.  3638,  Nov.  9, 1897. 

II  D  2.  Held,  that  a  retired  enhsted  man  may  accept  a  commission 
as  an  officer  of  Philippine  Scouts  and  serve  as  such.  C.  10843,  July 
12,1901. 

II  D  3.  Held,  that,  in  the  absence  of  a  State  statute  disqualifying 
him,  a  retired  enlisted  man  may  hold  the  office  of  city  constable. 
C.  1077,  Mar.  1,  1895;  3638,  Nov.  8,  1897;  14911,  July  6,  1903. 

II  D  4.  The  language  ''who  have  been  honorably  mustered  out  or 
discharged  from  the  service  of  the  United  States"  used  in  section 
4847  R.  S.,  in  describing  those  persons  who  may  be  appointed 
superintendents  of  national  cemeteries,  Jield  not  to  debar  retired 
enlisted  men  from  such  appointments.     C.  24788,  Apr.  16,  1909. 

HE  1.  Held,  in  the  absence  of  any  legislation  to  the  contrary, 
that  retired  enlisted  men,  like  retired  officers,^  might  legally  be 
employed,  in  any  department  of  the  Government,  as  clerks,  mes- 
sengers, watchmen,  etc.,  and  received  pa^^  for  such  employment, 
while  at  the  same  time  retaining  their  positions  on  the  retired  list 
and  receiving  retired  pay.^  E.  56,  144,  4^^,  ^^V  ^^<^  Sept.,  1888; 
P.  24, 240,  May  5, 1888;  C.  10843,  July  12, 1901;  I49II,  July  6, 1903. 

1  VComp.  Dec,  175. 

2  15  Op.  Atty.  Gen.,  306. 

3  See  Digest  2d  Comp.  Dec,  Vol.  IV,  par.  73,  Sept.  28,  1894. 


RETIREMENT — RETIRING  BOARD.  ]  003 

II  E  2  a.  Held  that  tlie  law  does  not  prohibit  a  retired  soldier 
(musician)  from  following  his  profession  in  civil  life  because  at  one 
time  he  formed  part  of  a  military  band.     C.  24179,  Dec.  9,  1908. 

HE  2  b.  Held  that  a  retired  enlisted  man  may  accept  employment 
as  an  instructor  of  high-school  boys  in  military  tactics.  C.  3638, 
Jan.  9,  1909. 

II  E  2  c.  Held  that  a  retired  enlisted  man  may  accept  a  position 
as  interpreter  to  the  Austro-Hungarian  commissioner  at  the  St.  Louis 
Exposition.     C.  16024,  Mar.  15,  1904. 

II  F  1  a.  Held  that  the  remains  of  a  deceased  retired  soldier  may 
not  be  shipped  on  a  Government  bill  of  lading.  Held,  further,  tliat 
the  cost  of  transportation  in  such  a  case  is  not  a  i)roper  charge  against 
the  United  States.     C.  13773,  Dec.  8,  1902.^ 

II  F  2.  Held,  that  the  enlistment  of  a  retired  soldier  would  operate 
to  terminate  his  status  of  retirement.     C.  14511,  Apr.  24,  1903. 

II  F  3.  An  enhsted  man  on  the  retired  list  is  subject  to  trial  by 
court-martial  (C.  21089,  Feb.  11,  1907)  and  to  dishonorable  discharge 
by  sentence,  if  such  be  adjudged.  But  the  existing  law,  in  entitling 
him  to  be  retired  if  he  complies  with  its  conditions,  evidently  con- 
templates that  he  shall  remain  a  pensioner  on  the  bounty  of  the 
Government  during  the  remainder  of  his  life,  if  not  forfeiting  his 
claim  by  serious  misconduct.  So,  held,  that  retired  enlisted  men 
could  not  legally  be  discharged  by  Executive  order  under  the  fourth 
Article  of  War,  which  contemplates  soldiers  on  the  active  list  only. 
R.  55,  305,  Jan.,  1888;  C.  18202,  June  29,  1905. 

II  G.  An  enlisted  man  with  an  exceedingly  good  record  of  service 
was  retired  as  a  private.  He  requested  that  the  order  be  revoked,  so 
that  he  could  be  retired  as  a  noncommissioned  officer.  Held,  that 
when  he  was  retired,  the  power  of  the  President  was  exhausted  as 
to  his  case,  and  that  the  order  retiring  him  could  not  be  revoked.^ 
a  20446,  Sept.  27,  1906. 

III.  Forage  masters  and  wagon  masters  employed  by  the  Quarter- 
master General  under  section  1137,  R.  S.,  are  not  ''enlisted,'-  and 
therefore  not  entitled  to  be  retired  under  existing  law — act  of  Sep- 
tember 30,  1890  (26  Stat.  504).  P.  51,  466,  Jan.,  1892;  C.  157,  Aug.  9, 
1894. 

RETIREMENT  OF  OFFICER. 

Allowances  while  awaiting See  Pay  and  allowances  II  A  2  a  (2)  (o). 

Detailed  staf  officer See  Rank  I  C  2. 

Militiaman See  Militia  XVI  D. 

RETIREMENT  OF  SOLDIER. 

See  Absence  IC4f  (1);(2). 
Computation  of  time See  Enlistment  I  A  9  m. 

RETIRING  BOARD. 

See  Retirement  I  B  to  C;  N  to  O. 
In  Militia See  Militia  XVI  C. 

1  11  Op.  Atty.  Gen.,  pp.  8,  9;  12  id.,  172,  358;  13  id.,  387,  450;  14  id.,  275;  35  id.. 
208;  United  States  v.  Bank  of  the  Metropolis,  15  Peters,  400,  401,  in  which  it  is  held 
that  an  Executive  can  not  reopen  a  case  decided  by  a  previous  Executive. 


1004  RETURI^g — REWARD. 

RETURNS. 

Colleges See  Military  instruction  II  B  2  c. 

RETURNS  OFFICE. 

See  Contracts  XVII. 
REVIEWING  AUTHORITY. 

See  Articles  of  War  CIV  to  CV:  CVI  A; 
CVIIA;  CXI  A. 
Discipline  XIV  to  XV. 

Charge  not  sustained See  Desertion  XIV  A  2. 

Disapproval See  Desertion  XIV  A  5. 

Evidence  by See  Discipline  X  A  3. 

Garrison  court See  Articles  of  War  CIV  C  4. 

Mitigation See  Articles  op  War  CXII  Alb. 

Of  military  commission See  War  I  C  8  a  (3)  (d)  [2]. 

Of  summary  court See  Discipline  XVI  E  4  a;  b. 

Unauthorized  punishment  by See  Discipline  XVII  Big. 

REVISED  STATUTES. 

See  Laws  I  A  to  II. 

REVISION  BY  INFERIOR  COURT. 

See  Discipline  XVI  E  4  b. 

REVISION  BY  GENERAL  COURT-MARTIAL. 

See  Articles  of  War  CII  F. 
See  Discipline  IX  N  to  O;  XIII  H. 
By  order  of  President  of  United  States See  Discipline  XIV  H  2. 

REVOCATION. 

Acceptance  of  resignation See  Office  IV  D  5  d  to  e. 

Congress  can  not  revoke  executed  sentence See  Pardon  I  B  1. 

Contract  can  not  be  annulled See  Contracts  XXI  C. 

Date  of  rank See  Rank  II  A  3  to  4. 

Discharge See  Civilian  employees  XI  B  3. 

Discharge  XV;  XVI  A  to  H. 

Enlistment  I  D  3  c  (18)  (c). 

Discharge  of  cadet See  Office  IV  E  2  g  (1)  (6). 

Dismissal See  Discharge  XVII  A. 

Office  III  F  1;  IV  E  1  b  to  c. 

Muster  in See  Volunteer  Army  II  E  to  F. 

Muster  out See  Volunteer  Army  IV  F  to  H. 

Order  proclaiming  martial  laiv .See  War  I  E  1  d  to  e. 

Pardon See  Pardon  II  A. 

President's  proclamation See  War  I  C  12  a. 

Resignation See  Office  IV  D  1. 

Retirement  of  officer See  Retirement  I  B  3  d;  6  b  (1);  b  (2);  E. 

Retirement  of  soldier See  Retirement  II  G. 

Summary  dismissal See  Office  IV  E  2  d  to  e. 

REWARD. 

Deserters See  Desertion  V  to  VI. 

Detection  of  crime See  Appropriations  XII. 


RIGHT   0*^  WAY — SAFE   CONDUCT.  1005 

RIGHT  OF  WAY. 

See  Public  property  VI  to  VII. 

Joint  title See  Public  property  II  A  5. 

Jurisdiction  over See  Public  property  V  D  1  a. 

Military  reservation See  Public  property  I  A  1 . 

National  cemeteries See  Public  property  IV  A  2  to  3. 

Public  land See  Public  property  III  C. 

RIGHTS  OF  CITIZENSHIP. 

See  Alien. 
Forfeited  hy  desertion See  Desertion  XIV  13 ;  B  1. 

RIOT. 

See  Army  II  I  to  K. 
RIOT  ACT. 

Reading  of, See  Army  II I  1. 

RIVER  COMMISSIONS. 

See  Navigable  waters  XI  to  XII. 
RIVER  AND  HARBOR  WORK. 

See  Eight-hour  law  IV. 

See  Navigable  waters. 

Appropriations See  Appropriations  XIV;  XXXVIII. 

Bond,  execution  of.. See  Bonds  I  N. 

Contracts  in  connection  with See  Contracts  VII  F  to  G. 

Dredging See  Contracts  XLV. 

Improvements See  Navigable  waters  X  to  XI. 

ROCK  ISLAND  BRIDGE. 

Jurisdiction See  Command  V  A  3  c  (1). 

Navigable  waters  III  D. 

ROUND  ROBIN. 
Offense See  Articles  of  War  LXII  D. 

ROYALTY. 

Lien  upon  patented  article See  Patent  II  A. 

RULES. 
Of  evidence See  Discipline  XI  A  to  B. 

SABERS. 
Sharpened See  War  I  C  5  a. 

SAFE  CONDUCT. 

See  War  I  C  10. 


1006  SALAEY — SECBETARY   OF   WAB. 

SALARY. 

See  Tax. 
Exemption  from  taxes See  Retirement  I  G  2  e. 

SALE. 

See  Public  property  IX  to  X. 

Damaged  property See  Tax  III  M. 

Empty  boxes,  crates,  etc See  Public  money  I  J. 

Garbage See  Public  property  I  M. 

Heat  and  light,  to  civilians  not  authorized. .  See  Pay  and  allowances  II  A  1  e. 
Public  property  to  State See  Militia  IX  B  ;  B  1. 

Navigable  waters  X  F  to  G. 

Public  property  I  A  4  a. 
Uniform  clothing See  Command  V  A  3  e. 

Pay  and  allowances  II  A  3  a  (4)  (a) 

SALVAGE. 

See  Claims  VI  to  VII. 
On  recapture See  War  I  C  6  c  (3)  (e)  [1]. 

SAMPLE. 
With  bids See  Contracts  III  I. 

SANITARY  INSPECTORS. 

See  Command  IV  B. 
SEA. 
Boundary See  Public  property  II  D. 

SEAL. 

Bonds,  etc See  Bonds  I  F  to  G. 

Contracts See  Contracts  XXXVI. 

SEAMEN. 

See  Army  I  G  3  b  (2)  (a-)  [3]  to  [4]. 
See  Eight-hour  law  IV. 
Discharge See  Civilian  employees  XV  A. 

SECOND  DESERTION. 

See  Articles  of  War  CIII  F  2  a;  3;  4. 
See  Desertion  V  B  16. 

SECRETARY  OF  THE  TREASURY. 

Control  over  bonds See  Bonds  I  O. 

Solvency  of  corporations See  Bonds  V  L. 

SECRETARY  OF  WAR. 

See  Army  I  B  to  C. 

Action  irrevocable  after  notice See  Contracts  LIV. 

American  material See  Contracts  XXIII  G;  H. 


V 


SECRETARY   OF   WAR.  1007 

Appointments  by See  Office  III  E  to  F. 

Army  bands See  Army  bands  I  C  2. 

Attorney  General,  request  on See  Discipline  IV  B  4  a. 

Bids,  bonds,  and  contracts See  Contracts  VI  C. 

Bridges,  construction  of See  Navigable  waters  III  to  IV. 

Cadets,  authority  over See  Army  I  D  2  a;  b. 

Cadet,  summary  dismissal See  Discharge  XVIII  A. 

Civil  authorities,  rule  of  comity See  Articles  of  War  LIX  D. 

Army  I  B  11. 

Ciml  War  clmms See  Claims  VII  G. 

Commutation  of  rations See  Pay  and  allowances  II  A  3  b  (1)  (a). 

Congressional  relief  for  disbursing  officer. .  .See  Army  I  B  6  b. 

Contractor  and  eight-hour  law See  Eight-hour  law  VII. 

Deposition  by See  Articles  of  War  XCI  A  1. 

Deserters,  enlistment  of See  Enlistment  I  D  3  c  (14). 

Discharge  by See  Discharge  VI  C  1;  2;  XI  B  1;  3. 

Discharges  by  way  of  favor See  Pay  and  allowances  III  C  2  c  (3). 

Discharge  VI  to  VII. 

Dishonorable  discharge  irrevocable See  Discharge  XIX. 

Enlistm£nts See  Enlistments  I  A  10. 

Evidence  by See  Discipline  X  D  1, 

Extra  duty  by  soldier See  Army  I  E  2  c. 

Fraudulent  enlistment,  disposition See  Enlistment  I  A  9  g  to  k. 

Gift  to  United  States See  Public  property  I  F  4. 

Heat  and  light  allowance See  Pay  and  allowances  II  A  1  b. 

Honest  and  faithful  service See  Enlistment  I  D  3  c  (18)  to  d. 

Discharge  XI  to  XII. 

Indian  country,  trade  license See  Intoxicants  III  B. 

Insane  deserter See  Desertion  VII  A  2. 

Insane  persons,  care  of. See  Insanity. 

Insane  soldiers,  discharge See  Discharge  V  D. 

Lawyer  to  represent  United  States See  Claims  XII  M. 

License. See  Public  property  I  A  1. 

Militia  called  forth See  Militia  I  B. 

Militia,  property  not  loaned  to See  Militia  IX  C;  XVI  I  5;  6. 

Muster-out  order  has  force  of  law .See  Volunteer  Army  IV  A  1. 

Nolle  prosequi See  Discipline  III  E  6. 

Obstructions  to  navigation,  removal See  Navigable  waters  IX  C. 

Officer' s  leave  status See  Absence  I  B  1  b. 

Officer,  summary  dismissal See  Office  IV  E  2  c  (1). 

Officer,  supplies  purdiasedfrom See  Contracts  XV  A  2. 

Orders  by See  Communications  I  A  1. 

Pardoning  power,  ineligible  for See  Pardon  I  B  1. 

Personalty,  disposition  of. See  Public  property  I  A  3. 

Post  laundry See  Government  agencies  I  A. 

Predecessor's  action  irrevocable See  Claims  I. 

Retirement  I  E. 

President,  Secretary  acts  for See  Discipline  III  B  1. 

Public  property  can  not  be  given  away See  Public  property  I  A  5;  B. 

Public  property  can  not  be  loaned See  Public  property  I  C. 

Public  property,  changes  in  or  damage  to See  Public  property  VIII  A  4  to  5. 

Quartermaster  sergeant's  appointment See  Army  I  E  2  b. 

Records  amended  by See  Discharge  XIX. 

Reenlistment  of  deserter See  Desertion  VI  D ;  XVI  A ;  A  1. 

Regimental  staff  officers,  appointment See  Command  V  C  1  a. 

Regulations See  Contracts  LI. 

Reimbursements  unauthorized See  Claims  XII  P. 

Reward  for  deserter See  Desertion  V  B  6;  8  a  ;  9. 

Reioardfor  embezzler See  Desertion  V  B  18  a. 

Right  of  way,  can  not  grant See  Public  property  I  A  1. 

Sentence  can  not  be  corrected See  Discipline  XIV  H  5. 

Substitutes See  Enlistment  II  D. 

Unassigned  list  of  officers See  Army  I  G  2  b  (2). 

Unliquidated  damages See  Claims  II. 

Useless  papers See  Official  papers  I  A  1  c. 


1008  SELF-DEFENSE — SERVICE   SCHOOLS. 

SELF-DEFENSE. 

See  Discipline  V  D  2  a. 
SENATE. 
Confirmation  of  appointment See  Office  III  A  3. 

SENIORITY. 

Promotion  by See  Office  III  B  1  to  2. 

SENTENCE. 

See  Discipline  XII  B  to  C. 

Confirmation,  death  or  dismissal See  Articles  of  War  LXXII  D  1;  XCVI 

to  XCVII. 

Cumulative See  Discipline  XVII  A  4  b. 

Death See  Articles  of  War  XCVI  A;  B. 

Disapproval,  effect  of  acquittal See  Articles  of  War  XLVIII  A  2. 

Disclosing See  Articles  of  War  LXII  D:  LXXXIV 

C  4. 

Dismissal See  Office  IV  E  1  to  2. 

Exceeds  limit See  Discipline  XIV  E  9  c. 

Executed,  can  not  be  pardoned See  Pardon  IX. 

Executed,  irrevocable See  Discipline  XV  I  to  K. 

Office  III  F  1;  IV  E  1  b  to  c. 

Executed,  irrevocable  by  Congress See  Pardon  I  B  1. 

Fines See  Pay  and  allowances  III  D  to  E. 

Forfeiture See  Pay  and  allowances  III  C  1  to  2. 

Grounds  for  disapproval See  Discipline  XIV  E  9  a  to  b. 

Illegal See  Articles  of  War  CXII  C. 

Discharge  XV  C  1;  K  1. 

Military  commission See  War  I  C  8  a  (3)  (d)  [1];  (e). 

Of  military  court See  Discipline  XII  B  1  to  F. 

Null  and  void See  Discharge  XIII  E  1. 

Enlistment  I  D  3  d  (5). 

Pay  while  awaiting See  Pay  and  allowances  I  A  1  b;  c. 

Reduction  to  the  ranks See  Articles  of  War  LXXXIII  C  2. 

Reviewing  authority's  action See  Articles  of  War  CIV  A  to  C  5  a. 

Discipline  XIV  E  to  F. 

Set  aside See  Pay  and  allowances  I  C  2. 

Suspended See  Command  V  A  1  b. 

Discipline  XVII  A  4  e. 

Pay  and  allowances  III  A  2  a. 

SENTINEL. 

Homicide  by See  Articles  of  War  LIX  L  1 ;  CII  A  to  I. 

On  post See  Articles  of  War  LIX  A. 

Respect  for See  Discipline  XVII  Bid. 

SEPARATE  BRIGADE. 

Convening  authority See  Articles  of  War  LXXII  D  1. 

Revievdng  authority  after  discontinuance  of .  .See  CIVC  1;3;  CVII  A. 

See  Discipline  XIV  A  2. 
Under  73  Article  of  War See  Articles  op  War  LXXIII  to  LXXIV. 

SERVICE  SCHOOLS. 

Artillery  school See  Appropriations  XXXVII. 

Instructors'  leaves See  Absence  I  B  1  g  (2);  (2)  (a). 

Maneuvers,  destruction  of  private  property  .  .See  Appropriations  LVIII. 

Medical  school See  Appropriations  XLI  V. 

Militia  officers See  Militia  VI  A  1. 


SERVICE   WITH   TROOPS — SOLDIERS.  1009 

SERVICE  WITH  TROOPS. 

See  Retirement  I  K  2  c. 

SERVITUDE. 

Defensive  purposes See  Navigable  waters  II  C. 

Submerged  land See  Navigable  waters  II  B  to  C. 

SET  OFF. 

See  Claims  VII  B  6. 
See  Contracts  XVIII. 

SHOES. 

Manufactured  at  military  prison See  Discipline  XVII  A  4  g  (2). 

SIGNAL  CORPS. 

Inspection  of  funds See  Army  I  B  2  b  (2)  (a). 

SIGNATURE. 

See  Contracts  I  to  II. 

Authority  to  sign See  Bonds  I  S. 

Collegebond See  Bonds  IV  A  to  F;  H. 

End  of  contract See  Contracts  XVI  to  XVII. 

Junior  dropped See  Name  I  B. 

Middle  initial  dropped See  Name  I  A. 

Omission  of. See  Contracts  VI  G. 

Partnership See  Contract  LVI. 

To  bond See  Bonds  I  HI. 

Typeuritten  or  stamped See  Contracts  LIII. 

Witness See  Bonds  I  J. 

SINGLE  MAN. 
Designation  of  beneficiary See  Gratuity  I  B  2 ;  4. 

SKATING  RINK. 

Exclusion  of  soldiers  from See  Uniform  I  A  1 ;  B  1  a. 

SMALL-ARMS  COMPETITION. 
By  militia. See  Militia  VI  C  2  to  D. 

SOCIETY  BADGES. 

See  Insignia  of  merit  III  A  to  B. 

SOLDIERS. 

See  Enlisted  men, 
31106°— 12 64 


1010 


SOLDIERS'  HOME. 


I.  AT  WASHINGTON,  D.  C. 

A.  Inmates  Not  Subject  to  Articles  of  War Page  1010 

B.  Inmates  May  Leave  Voluntarily. 

C.  Allowance  of  Supplies  to  Officers. 

D.  Quarters  Not  Public Page  1011 

E.  Transportation  to  Home  of  Needy  Discharged  Soldiers. 

F.  Escheat  to  United  States  of  Estates  of  Deceased  Inmates. 

G.  May  Establish  Branch Page  1012 

H.  Title  in  United  States. 

n.  NATIONAL  VOLUNTEER  HOME, 
in.  STATE  HOMES. 

I  A.  Section  4824,  R.  S.,  subjecting  the  inmates  of  the  Soldiers' 
Home  to  the  Rules  and  Articles  of  War,  is  unconstitutional  and  a 
dead  letter.  These  inmates  are  no  part  of  the  Army,  nor  are  they 
supported  by  the  United  States.  They  are  civilians  occupying 
dwelUngs  and  sustained  by  funds  held  in  trust  for  them.  The  ter- 
ritory of  the  home  being  within  the  District  of  Columbia,  and  not 
having  been  exempted  by  Congress  from  the  operation  of  the  criminal 
laws  of  the  District,  the  inmates  are  subject  to  those  laws  like  any 
other  residents.!  P.  55,  J^OG,  Sept,  1892;  C.  16062,  Mar.  15,  1904; 
18322,  July  20,  1905;  22730,  Feb.  10,  1908;  27^56,  Nov.  7,  1910. 

I  B.  An  inmate  is  not  required  to  remain  at  the  home  if  he  wishes 
to  leave  it.  The  privileges  of  the  institution  may  be  renounced  by 
any  act  showing  an  intention  to  renounce  them — such  as  direct  notice 
of  such  intention,  or  by  absenting  himself  with  the  evident  purpose 
of  not  returning.  In  February,  1864,  a  certain  inmate  was  trans- 
ferred from  the  home  to  the  Government  Hospital  for  the  Insane, 
and  was  discharged  thence  as  sane  in  June,  1864.  He  did  not  return 
to  the  home  and  was  not  again  heard  of  till  March,  1886,  when  it  was 
ascertained  that  he  was  at  a  State  hospital  for  the  insane.  As 
he  was  sane  when  he  left  the  Government  hospital  and  did  not 
return  to  the  home  within  a  reasonable  time,  but  remained  absent 
nearly  22  years,  held  that  he  must  be  deemed,  in  the  absence  of  con- 
trarj^  evidence,  to  have  intended  to  permanently  separate  himseK 
from  the  institution,  and  that  he  therefore  was  not  now  an  inmate 
or  member  of  the  same.     R.  50,  167,  Apr.,  1886. 

I  C.  The  funds  for  the  support  of  the  Soldiers'  Home  are  not  of 
the  class  of  pubHc  moneys  annually  appropriated  for  a  specific  object, 
as  for  the  pay  of  the  Army,  but  a  special  trust  fund  committed  to  and 
administered  by  the  board  of  commissioners  for  the  benefit  of  the 
institution.  From  an  early  period  in  the  history  of  the  home  it  has 
been  the  usage  for  the  commissioners  to  permit  the  officers  of  the 
home  (retired  officers  of  the  Army  residing  thereat),  gratuitously  to 
receive  and  use  a  reasonable  portion  of  the  ordinary  supplies  of  fuel, 
light,  forage,  milk,  ice  and  vegetables,  either  produced  at  the  home  or 
obtained  for  its  consumption.  Held  that  such  allowance  was  not  in 
contravention  of  law ;  that  the  articles  thus  issued  are  not  of  the  class 
of  military  pay  and  emoluments,  and  therefore  unauthorized  because 
not  allowed  by  law  to  retired  officers,  but  are  a  reasonable  share  of 

^  Compare  opinion  of  Attorney  General  in  20  Op.,  514. 


1011 

the  supplies  for  the  use  and  benefit  of  the  home,  the  disposition  of 
which  IS  properly  within  the  discretion  of  the  commissioners  as  charged 
by  law  with  the  ' 'government  and  interests "  of  the  home.  And  simi- 
larly held  in  regard  to  the  amount  of  $1,000,  allowed  annually  out  of 
such  funds  to  the  treasurer  of  the  home,  as  a  compensation  for  his 
special  services  and  in  consideration  of  his  pecuniary  resjponsibihty  as 
a  bonded  officer.^    P.  51,  296,  Jan.,  1892;  C.  12965,  Jan.  23,  1902. 

I  D.  Held  that  a  medical  officer  of  the  Army,  occupying  quarters 
at  the  Soldiers'  Home,  was  not  thereby  precluded  from  receiving 
commutation  of  quarters  at  New  York,  on  being  ordered  to  duty 
there  as  a  member  of  a  medical  examining  board.  The  quarters 
occupied  by  him  at  the  home  are  not  ''pubhc  quarters";  he  cloes  not 
occupy  them  at  the  expense  of  the  United  States;  and  by  allowing 
him  the  commutation  the  Government  is  not  put  to  a  double  expense 
for  his  quarters.     P.  56,  174,  Oct.,  1892. 

I  E.  Section  4745,  R.  S.,  should  not  be  construed  as  prohibiting 
the  practice  by  which  transportation  to  the  Soldiers'  Home  is  fur- 
nished by  it  to  a  needy  discharged  soldier,  with  the  understanding 
that  the  home  wnll  repay  itself  out  of  his  pension  when  collected. 
This  is  not  a  pledge,  etc.,  of  his  pension  by  a  aischarged  soldier  within 
the  meaning  of  section  4745,  but  a  repayment  by  a  governmental 
agency  to  itself  out  of  money  belonging  to  him  and  placed  in  his 
hands  by  law,  of  money  advanced  by  it  to  him  solely  for  his  interest. 

C.  5922,  Feb.,  1899. 

I  F„  The  law  of  the  United  States  for  the  District  of  Columbia  is 
to  the  effect  that  where  a  person  dies  intestate,  leaving  an  estate  in 
the  District  and  there  is  no  relation  of  the  mtestate  within  the  fifth 
degree,  the  estate  shall  belong  to  the  United  States.  Under  this  law, 
whenever  an  inmate  has  died  in  the  Soldiers'  Home  at  Washington, 

D.  C,  leaving  money  in  bank  in  that  city,  or  other  moneys  or  per- 
sonal effects,  in  the  District,  the  same  become  the  property  of  the 
United  States;  and  all  such  property  and  effects  other  than  money 
should  (by  the  proper  proceedings  in  court)  be  converted  into  money, 
and  then  this,  together  with  the  money  left  by  the  soldier  in  bank  or 
elsewhere  in  the  District,  should  be  turned  into  the  United  States 
Treasury  by  order  of  court,  as  money  of  estates  escheated  to  the 
United  States.  Section  3689  of  the  United  States  Revised  Statutes 
appropriates  for  the  Soldiers'  Home  ' '  out  of  any  moneys  in  the  Treas- 
y^j.y^  *  *  *  all  moneys  belonging  to  the  estates  of  deceased  sol- 
diers." After,  therefore,  the  moneys  and  the  proceeds  of  the  other 
effects  of  inmates  of  the  home  have  been  paid  by  order  of  court  into 
the  United  States  Treasury  as  moneys  of  escheated  estates,  the  Sol- 
diers' Home  is  entitled  to  receive  the  same  from  the  Treasury.  The 
home  is  not,  however,  entitled  to  it  until  it  shall  have  gone  into  the 
Treasury,  so  that  section  3689  can  apply  to  and  appropriate  it  to 
the  use  of  the  home.  It  is  not  the  duty  and  probably  not  within  the 
power  of  the  Soldiers'  Home  to  move  m  tlie  matter  of  enforcing  the 
law  with  regard  to  the  moneys  or  property  of  any  estate,  whether 
the  decedents  were  inmates  of  the  home  or  not.  But  as  it  is  the 
duty  of  the  Attorney  General  of  the  United  States  (through  the  United 
States  attorney  of  this  district)  to  look  after  and  collect  all  moneys 
and  property  the  United  States  is  entitled  to  under  the  law,  whether 

^  See  opmion  of  Attorney  General  to  same  effect,  in  20  Op.  350, 


1012  soldiers'  home  i  g. 

the  decedents  are  inmates  of  the  home  or  whether  they  are  civilians 
who  reside  elsewhere  in  the  District,  advised  tliat  he  be  informed  by 
the  proper  officials  of  the  home  of  the  death  of  all  inmates  who  leave 
any  money  or  property  in  the  District  and  the  whereabouts  of  the 
same,  which  it  may  be  in  his  power  to  collect  and  turn  into  the 
Treasury,  as  above  indicated.  Money  so  turned  in  should  be  obtained 
by  the  home  by  direct  application  to  the  Treasury  for  the  same. 
C.  3493,  Sept.,  1897.  ^ 

I  G.  On  the  questions  (1)  whether  the  board  of  commissioners  of 
the  Soldiers'  Home  has  authority  to  establish  a  branch  home;  (2) 
whether  the  Secretary  of  War  has  legal  authority  to  grant  to  the 
Soldiers'  Home  the  right  to  locate  a  branch  of  the  home  on  a  military 
reservation  and  to  occupy  buildings  erected  for  the  military  establish- 
ment; and  (3)  whether,  if  such  right  were  granted,  the  board  of 
commissioners  would  have  authority  to  expend  funds  of  the  Soldiers' 
Home  in  keeping  such  buildings  in  repair — held,  first,  that  it  was  the 
intention  of  the  original  legislation  relating  to  the  Soldiers'  Home  to 
establish  it  at  one  or  more  places,  and  no  subsequent  legislation  has 
interfered  with  this,  except  as  to  one  locality,  and  that  under  the 
legislation  as  it  now  stands  it  would  not  be  illegal  to  establish  a  branch ; 
second,  that  the  Secretary  of  War  has  no  authority  independently  of 
Congress  to  grant  away  any  interests  in  buildings  erected  on  military 
reservations,  but  that  he  may  do  so  under  legislation  of  July  28,  1892 
(27  Stat.  321),  which  vests  him  with  authority,  ''when  in  his  discre- 
tion it  will  be  for  the  public  good  to  lease  for  a  period  not  exceeding 
five  years,  and  revocable  at  any  time,  such  property  of  the  United 
States  under  his  control  as  may  not  for  the  time  be  required  for  j^ublic 
use  and  for  the  leasing  of  which  there  is  no  authority  under  existing 
law";  and  third,  that  if  the  Soldiers'  Home  may  thus  lease  buildings 
on  a  military  reservation,  to  be  used  as  a  branch,  the  expenditure  of 
funds  of  the  home  in  keeping  the  buildings  in  a  condition  fitting  them 
for  this  purpose  would  be  a  legal  expenditure  notwithstanding  that 
the  home  could  not,  on  the  termination  of  the  lease,  recover  any 
money  so  expended.     C.  6818,  July,  1899. 

I  H.  The  Soldiers'  Home  is  not  a  legal  entity,  but  is  simply  an 
agency  of  the  United  States.  The  title  to  its  property  and  funds  is 
in  the  United  States  and  it  is  supported  by  funds  appropriated  by 
Congress.  As  the  title  to  its  property  is  in  the  United  States,  it  is 
not  subject  to  attachment  by  private  individuals.  C.  16767 ,  Aug. 
18,  1904. 

II.  Held  that  section  4835,  R.  S.,  which  provides  that  the  inmates 
of  the  ''National  Home  for  Disabled  Volunteer  Soldiers"  shall  be 
subject  to  the  rules  and  Articles  of  War,  is  unconstitutional,  and  that 
such  inmates  are  not  a  part  of  the  Army  of  the  United  States,  but  are 
civilians.  R.  30,  286,  Apr.,  1870;  C.  12817,  July  2,  1902.  Held, 
also,  that  under  the  act  of  March  3,  1891  (26  Stat.  984),  all  receipts 
must  be  reported  to  the  Secretary  of  War.     P.  61,  IO4,  Dec.  31,  1891. 

III.  The  act  of  August  27,  1888  (25  Stat.  450),  makes  |)rovision 
for  the  payment  of  money  by  the  United  States  to  such  States  or 
Territories  as  have  established,  or  which  shall  hereafter  establish. 
State  homes  for  disabled  soldiers  and  sailors  of  the  United  States  who 
served  in  the  Civil  War  or  in  any  previous  war,  who  are  disabled 
by  age,  disease,  or  otherwise,  and  by  reason  of  such  disability  are 
incapable  of  earning  a  living.     Held  that  the  United  States,  aside  from 


soldiers'   home — STAMPS.  1013 

verifying  the  number  of  inmates  cared  for,  makes  no  inspections 
of,  or  exercises  no  supervision  over,  such  State  or  Territorial  homes. 
C.2222,  Apr.,  1898.  Held,  further,  that  a  State  is  entitled  to  re- 
ceive under  tlie  above  act  an  allowance  on  account  of  inmates  who 
axe  insane  and  being  cared  for  in  asylums.     C.  3121,  Apr.,  1897. 

CROSS    REFERENCE. 

Attendant  to  entering  inmate See  Army  IBS. 

Bonds  of. See  Bonds  I  H  2. 

Contracts  with See  Contracts  XVI  E;  XXXII. 

Intoxicants,  sale  of See  Intoxicants  IV. 

Retired  soldier  not  eligible See  Retirement  II  B  6. 

Taxation  of  inmates See  Tax  I  F. 

SPANISH  WAR. 

Beginning  of. See  War  I  B  2. 

Termination  of See  War  I  F  2. 

SPECIFICATION. 

See  Discipline  II  A  to  H  2. 
Defective See  Discipline  II  A  1  a. 

SPY. 

Ofense See  War  I  C  2  d;  3  to  4. 

Sentence See  War  I  C  8  a  (3)  (e). 

Trial  by  military  commission See  War  I  C  8  a  (3)  (6)  [3]. 

UATTERS. 

Indian  country See  Army  II  J  5, 

Military  reservation See  Public  property  II  B  3  a;  III  H  to  I. 

STAFF. 

See  Army  I  G  to  H. 

DetaiUd See  Army  I  B  2a(l);  G  3  to  H. 

Office  III  B  6  a;  D  1  e. 
Soldiers,  extra  duty See  Pay  and  allowances  I  C  6  b  (3). 

STAFF  DUTY  NOT  INVOLVING  SERVICE  WITH  TROOPS. 

See  Retirement  I  K  2  to  4. 

^  STAFF  OFFICERS. 

Battalion See  Office  IV  G. 

Bond  of. See  Army  I  G  3  b  (1). 

Command See  Command  I  A  1;  VII  A. 

Convening  authority See  Articles  of  War  LXII  E  1. 

Detailed See  Army  I  B  2  a  (1);  G  3  to  4. 

Office  III  B  6  a. 

General  Staff. See  Office  III  Die. 

Leaves See  Absence  I  B  1  f . 

Reviewing  authority See  Discipline  XIV  C. 

State,  payment  of See  Militia  XI  B. 

STAMPS. 
On  bids See  Contracts  VI  G. 


1014  STATE — STATUS. 

STATE. 

Arms,  right  to  carry See  Government  agencies  V. 

Comity  between  military  and  civil See  Army  I  B  11. 

Articles  op  War  LIX  D. 

Courts  can  not  enjoin  Federal  agent See  Contracts  LVIII. 

Courts  can  not  enjoin  United  States  courts.. See  Public  money  II  C  6. 

Flag,  protected  by See  Flag  III. 

Military  reservation,  jurisdiction  over See  Public  property  V  F  1  to  2. 

Protection  of. See  Army  II  A. 

War  I  E  I  f . 

Republican  form  of  government See  Army  II I  4. 

Submerged  land,  title  to See  Navigable  waters  II  A  to  B. 

STATE  AND  MUNICIPAL  OFFICE. 

Retired  officers^  eligibility  for See  Retirement  I  G  3  b. 

STATE  CAMPS  OF  INSTRUCTION. 

See  Militia  VI  B  1  to  2. 

STATE  HOMES  FOR  DISABLED  SOLDIERS. 

See  Soldiers'  Home  III. 

STATION. 

Proper  station See  Absence  II  B  6. 

STATUS. 

Absence  with  leave See  Absence  I  C  4  b. 

Absence  without  leave See  Absence  I  C  1  b;  II  B  3;  4  a;  b;  5. 

Pay  and  allowances  I  C  2. 

Accused,  after  disapproval See  Discipline  XIV  E  9  b  to  c. 

Accused  after  escape See  Discipline  VIII  H  2. 

Active  service See  Retirement  I  k  1. 

After  acquittal See  Discipline  XII  I  1. 

After  discharge  without  honor See  Pay  and  allowances  I  C  5  b  (1). 

After  dishonorable  discharge See  Pay  and  allowances  I  5  b  (2). 

After  resignation,  dismissal See  Discipijne  VIII  I  1  to  2. 

American  National  Red  Cross  in  time  of  war.  See  Red  Cross  II  B. 

Arrest See  Discipline  I  B  to  C. 

Awaiting  orders See  Absence  I  B  1  h. 

Pay  and  allowances  I  B  2. 
Certificate  of  merit  awarded  dxiring  fraudu- 
lent enlistment See  Insignia  of  Merit  II  D. 

Civilian,  changed  by  enlistment See  Enlistment  I  A. 

Civilian  employees  armed : See  Civilian  employees  XIII  to  XIV. 

Chief  of  Philippine  Constabulary See  Command  I  C. 

Confinement  vn  penitentiary See  Discharge  IV  C. 

Consolidation  of  regiments See  Volunteer  Army  II  B  1  e. 

Continuous  service See  Pay  and  allowances  I  C  5  to  6. 

Contract  dental  surgeon , See  Army  I  G  3  d  (4)  {d). 

Contract  surgeon See  Army  I  G  3  d  (4)  to  (5). 

Department  commander ^  absent See  Articles  op  War  LXXI  A. 

Deserter  after  draft See  Enlistment  II  F. 

Dese)'tion  fixed  administratively See  Desertion  XIV  A3;  5. 

Dishonor See  Discharge  II  B  1. 

Dismissed  officer See  Pardon  XV  B. 

Duty See  Absence  I  A;  B  1  b;  b  (1). 

Articles  op  War  XXXVIII  B  1;  2. 
Duty,  termination See  Communications  I  B  2;  C. 


STATUS — STATUTE  OF  LIMITATION.  1015 

Duty  with  civil  government,  Philip piyie  Is- 
lands   See  Absence  I  B  1  g  (3). 

Engineer  officers See  Navigable  waters  X  B  1. 

Enrolled  men See  Enlistment  II  A. 

Enrollment  previous  to  muster  in See  Volunteer  Army  II  A  to  B. 

Escaped  general  prisoner See  Pardon  II  A. 

Extra  duty See  Pay  and  allowances  I  C  6  to  7. 

General  Staff  officer See  Army  I  G  3  a  (1)  (a). 

Hon^t  and  faithful  service See  Enlistment  I  D  3  a. 

Discharge  XI  to  XII. 

Honor See  Discharge  II  B  2. 

Illegally,  dishonorably  discharged See  Discharge  XVI  G  to  H. 

In  hand^  of  civil  courts See  Pay  and  allowances  I  C  3. 

Insane  officer  awaiting  retirement See  Retirement  I  B  6  d. 

Medical  cadets See  Pay  and  allowances  I  B  6  a. 

Medical  Reserve  Corps  officer See  Army  I  G  3  d  (3)  (c)  to  (4) . 

Member  of  general  court-martial See  Discipline  VI  C, 

Military,  of  enlisted  men See  Army  I  E  3  to  4. 

Militia  at  joint  encampment See  Militia  II  A ;  B. 

Militia  when  called  forth See  Militia  I  D . 

Volunteer  Army  I. 
Mustered-out  Volunteer See  Discipline  III  B  2  b. 

Volunteer  Army  IV  B  to  C. 

Noncommissioned  officers  absent,  sick See  Army  I  E  1  b. 

Nurse  Corps See  Army  I  G  3  d  (6)  (a)  [1]. 

Absence  I  D  to  E. 
Officer  after  approval  of  examining  board's 

proceedings .See  Retirement  I  B  6  e  (2). 

Officer  after   disapproval   retiring    board's 

finding See  Retirement  I  B  3  b. 

Officer  in  hands  of  civil  authoritie .' See  Absence  II  A  1. 

Officer  on  transport See  Command  V  B  1. 

Officer  under  charges  in  arret,  or  under 

sentence,  leave  status See  Command  V  A  1  b. 

Officer  under  ''conservator" See  Discipline  III  E  5  a. 

Officer  wholly  retired See  Retirement  I  N  to  0. 

Orders  affecting,  take  effectwhen? See  Pay  and  allowances  III  C  1  b. 

Pay See  Pay  and  allowances  I  A  to  B. 

Pensionable See  Absence  I  B  1  b  (1). 

Army  I  G  3  b  (2)  (a)  [3]  [6]. 

Porto  Rican  Regiment See  Army  I  G  2  a  (1) . 

Present  with  command See  Retirement  II  A  4  b  (1). 

Prisoner  after  mitigation See  Discipline  XVII  A  4  f . 

Prisoner  of  war : See  War  I  C  11  c  (6)  to  (7);  lid  (2)  (a). 

Retired  officer See  Retirement  I  C  to  N. 

Retired  soldier See  Retirement  II  B  to  H. 

Ship's  officers See  Army  I  G  3  b  (2)  (a)  [3]  [6]. 

Shown  by  muster  roll See  Absence  II  B  8  b. 

Soldier  in  hands  of  civil  authorities See  Command  V  A  2  c. 

Enlistment  I  B  2  b. 

Soldier  under  punishment See  Discipline  XI  B  4  a;  b. 

Superintendent  of  national  cemetery See  Public  property  IV  A  3  a. 

Suspension  from  rank See  Discipline  VIII  G  1  c;  c  (1). 

Retirement  I  N  3. 
Under  act  of  April  23, 1904  {33  Stat.  264).... See  Retirement  I  C  to  D. 

Volunteers See  Volunteer  Army  I  B  to  D ;  IV  C. 

Volunteers  before  muster-in See  Volunteer  Army  II  C  to  D  ;  F 1  a  to  b. 

War,  termination See  War  1  F  2;  3. 

STATUTE. 

See  Laws  I  to  II. 

STATUTE  OF  LIMITATION. 

See  Articles  of  War  CIII  to  CIV. 

Courts  of  inquiry See  Discipline  XVI  D. 

Desertion See  Desertion  X  D;  XVII  to  XVIII. 


1016  STOPPAGE — SUBSTITUTION. 

STOPPAGE. 

See  Civilian  employees  II  to  III. 
See  Pay  and  allowances  III  B  to  C. 

Contract,  faulty See  Contract  II. 

Deserter' s  pay See  Desertion  V  D  to  F;  XIV  to  XV. 

Government  agencies,  reimbursement See  Government  agencies  I  B. 

Private  debts  not  paid  thus See  Private  debts  II. 

Retired  soldiers See  Retirement  II  C  to  D. 

Unauthorized See  Discipline  XVII  B  1  f . 

Under  fifty-fourth  article  of  war See  Article  s  op  War  LI  V  B;C;C1;  Dl;2. 

STOREHOUSES. 

Occupation  of. See  Claims  VII  C  2. 

STREETS. 
Boundary See  Public  property  II  C. 

STUDENTS. 

College See  Military  instruction  II  B  1  to  2. 

Company  of  militia See  Militia  III  L. 

SUBMERGED  LAND. 

Jurisdiction  over See  Command  V  A  3  f . 

Title  to See  Puplic  property  II  D  1. 

Towing  targets  over  lobster  pots See  Army  I  G  2  b  (3). 

SUBORNATION  OF  PERJURY. 

See  Articles  of  War  LXI  B  2. 

SUBPOENA. 

By  Judge  Advocate See  Discipline  IV  B  3  a  to  d  (1). 

Civil  court See  Army  I  E  5. 

Duces  tecum See  Discipline  VII  E  1 ;  XI  A  17  b  (2)  (a). 

Obedience  to See  Discipline  X  D. 

Service  of See  Discipline  X  F  to  G. 

Territorial  courts See  Territories  II  A. 

SUBROGATION. 

Surety  to  contract See  Contracts  XIV  I. 

SUBSISTENCE. 

Militia,  sale  to See  Militia  VI  B  1  d;  2  g. 

Officers'  servants See  Army  I  G  3  d  (8)  (a). 

Prisoners See  Pay  and  allowances  III  C  1  b  (1). 

Recruit See  Desertion  XXII  A. 

Retired  soldier See  Retirement  II  B  3  b. 


SUBSISTENCE  DEPARTMENT. 

Allowances  furnished  by See  Pay  and  allowances  II  A  3  b  to  c. 

Details  to See  Army  I  B  2  b  (1)  (a);  G  3  b  (3)  to  (4) 

Heat  and  light See  Appropriations  XL. 

SUBSTITUTE. 

For  draft See  Enlistment  II  D. 

SUBSTITUTION. 

In  finding See  Discipline  XIII  A  5  to  6. 

Of  punishment See  Articles  of  War  CXII  Alb. 


SUICIDE — SURETY.  101 7 

SinCIDE. 

See  Gratuity  I  A  4  to  5;  B  5. 

SUMMARY  COURT. 

See  Discipline  XVI  E  to  F. 

SUMMARY  DISCHARGE. 

See  Discharge  II  B  1. 

As  pardon See  Pardon  XIII ;  XVI  D. 

Discharge  without  honor See  Discharge  III  A ;  F  2. 

Organizations See  Discharge  II  B  4 ;  III  G. 

SUMMARY  DISMISSAL. 

Cadets See  Discharge  XVIII  A. 

Effect  of. See  Pay  and  allowances  III  A  1  to  2. 

Officer See  Office  IV  E  2  to  3. 

Philippine  Scout See  Discharge  XX  B. 

Volunteer See  Office  V  A  7  c. 

SUMMARY  PUNISHMENT. 

See  Discipline  I  E  2. 

Hazing See  Army  I  D  3  b  (2)  (a). 

Unauthorized See  Discipline  XVII  B  1  to  2. 

SUNDAY. 

Enlistments  on See  Enlistment  I  A  4. 

SUPERIOR  OFFICER. 

See  Articles  of  War  XXI  A. 
Homicide  of. See  Articles  of  War  XXI  E  1;  2. 

SUPPLEMENTAL  CONTRACT. 

See  Contracts  VII  J  to  VIII;  XX  C  11. 
Sureties  on  bond  not  bound See  Bonds  I  M  3. 

SUPPLIES. 

See  Army  I  G  3  b  to  H. 

Allies  furnish See  Claims  VII  B  6. 

War  I  C  6  d  (1). 

Appropriation  for See  Appropriations  XXXI. 

Sate  of. See  Public  property  IX  A. 

Salvers'  suit See  Claims  VI  B. 

To  militia See  Militia  IX  to  X;  XVI  I  to  J. 

Under  section  3709,  Revised  Statutes See  Contracts  VII  C. 

SUPPLY  STAFF. 

See  Army  I  G  3  b  to  H. 

SURETY. 

See  Bonds  I  M  to  N. 

Acceptance  of. See  Bonds  IV  K. 

Bonds  with  corporate See  Bonds  V  A  to  L. 

Disbursing  officer See  Bonds  II  C;  D. 

Individual See  Bonds  III  G. 

Liability  of. See  Bonds  IV  O. 

Of  contractor See  Contracts  XIV  I. 

Officer  as See  Bonds  II  K. 

Opportunity  to  enter See  Contracts  XXIX. 

Substitution  of See  Bonds  II  N. 

To  bonds See  Bonds  I  M  to  N. 


1018  SUEGEON — TAX:  SYNOPSIS. 

SURGEOIT. 

Always  on  duty See  Articles  op  War  XXXVIII  B  2. 

MorjpUne  prescribed See  Retirement  I  B  6  f  (1). 

Practice  of. See  Army  I  G  3  d. 

Office  IV  A  2  e  (4). 
Government  agencies  VI. 

SURGEON  GENERAL. 

Duty  of. See  Army  I  G  3  d  (3)  (a). 

Library  in  office  of See  Appropriations  LIV. 

SURVEYING  OFFICER. 

Files  accountability See  Public  property  I  F  3  to  4. 

Jurisdiction  of. See  Articles  op  War  XVII  C. 

Militia See  Militia  IX  H  I. 

SUSPENSION. 

Cadet See  Army  I  D  3  b  (1) . 

Civilian  employee See  Civilian  employees  XI  B  1. 

Effect See  Pay  and  allowances  III  A  2  a. 

Failure  on  examination See  Retirement  I  B  6  c  to  d. 

From  rank See  Office  III  B  1  a  (2);  (3). 

Rank  V  to  VI. 

TARGET  PRACTICE. 

False  record See  Articles  op  War  LXII  D. 

Is  lawful See  Claims  V. 

Militia See  Militia  VI  C  to  D;  XI  P. 

Towing  of  targets See  Army  I  G  2  b  (3). 

TARGET  RANGES. 
Acquisition  of. See  Militia  VI  C  1  to  2. 

TAX.i 

I.  TAXATION  OF  OFFICERS,  SOLDIERS,  EX-SOLDIERS,  AND  PENSION- 
ERS AND  THEIR  PRIVATE  PROPERTY. 

A.  Officer  or  Soldier  Can  Not  be  Taxed  for  Pay  or  Property  Used  in 

Connection  with  Military  Duties Page  1019 

B.  Above  Rule  Applies  to  Retired  Officers  and  Soldiers Page  1021 

C.  Poll  Tax  Can  Not  be  Imposed  on  Officers  and  Soldiers. 

D.  Officers  and  Soldiers  Taxable  for  Property  Not  Military. 

E.  Residence  Depends  Upon  Intent. 

F.  Former  Soldiers,  Pensioners,  and  Inmates  of  Soldiers'  Homes  Not 

for  That  Reason  Exempt Page  1022 

G.  Ex-SoLDiERS  Not  Exempt  from  License  Fee. 
n.  TAXATION  OF  GOVERNMENT  EMPLOYEES. 

A.  Civilian  Employee  Can  Not  be  Compelled  to  Work  on  Roads  for 

Failure  to  Pay  Tax. 

B.  Civilian  Employee  Residing  on  a  Reservation  in  a  Territory  is 

Liable  for  Payment  of  School  Tax. 

^  Prepared  by  Maj.  H.  M.  Morrow,  judge  advocate,  assistant  to  Judge  Advocate 
General,  U.  S.  Army. 


TAX   I  A.  1019 

m.  TAXATION  OF  PRIVATE  PROPERTY  ON  MILITARY  RESERVATIONS, 
AND  OF  PROPERTY  OF  THE  UNITED  STATES  AND  ITS 
AGENCIES. 

A.  State  Can  Not  Tax  Government  Property Page  1023 

B.  Taxes  Which  Were  Lien  on  Land  When  Conveyed  Not  Enforceable 

WHEN  Exclusive  Jurisdiction  Has  Been  Ceded. 

0.  In  Act  Ceding  Jurisdiction  State  May  Reserve  Power  to  Tax  Persons 

and  Corporations  in  Reservation. 
T>.  Where  Exclusive  Jurisdiction  Not  Ceded,  State  May  Tax  Sale  of 
Liquor  in  "Canteen." 

E.  Private  Improvements  on  Reservation  Taxable  where  Exclusive 

Jurisdiction  Not  Ceded. 

F.  Government  Property  Not  Subject  to  Tax  for  Street  Improvements. 

G.  Althouoh  United  States  Can  Not  be  Taxed  for  Construction  of 

Sewer,  It  Can  Not  Use  Sewer  W'ithout  Paying  Privilege.  Page  1024 
H.  A  State  Tax  on  Sales   of  Real   Estate    Not   Operative   Against 
United  States. 

1.  "Consumption  Tax"  on  Sugar  Purchased  in  Porto  Rico  Not  Opera- 

tive Against  United  States. 
J.  United  States  Can  Not  be  Compelled  to  Pay  Local  Authorities  Fee 

FOR  Inspection  Services  in  Accordance  With  State  Laws,  But 

May  Enter  into  Contract  to  Have  Such  Inspection  Made. 
K.  United  States  Not  Subject  to  Fee  for  .Quarantine  Inspection  and 

Harbor  Regulation Page  1025 

L.  United  States  Not  Subject  to  Fee  for  Health  Certificates  Required 

BY  State  Authorities  for  Soldiers  While  Being  Transported  to 

Another  Station Page  1026 

M.  United  States  not  Subject  to  Payment  op  Local  License  Fee  for 

Selling  Damaged  Property  as  Authorized  by  United  States  Laws. 
N.  United  States  Not  Subject  to  Payment  of  State  License  Fee  for 

Automobile  Used  in  Service  of  United  States. 
O.  United  States  Not  Subject  to  Tax  in  District  of  Columbia  for  License 

FOR  Government  Vehicle. 
P.  Government  Instrumentality  Not  Subject  to  State  or  Municipal 

Taxation. 
IV.  MISCELLANEOUS. 

A.  Government  Disbursing  Officer  Can  Not  Withhold  Money  From  a 

Contractor  or  Employee  to  Pay  Their  Territorial  School  Tax. 

B.  A  Notice  of  a  Territorial  School  Tax  May  be  Posted  on  a  Military 

Reservation  in  a  Territory  if  it  Does  Not  Interfere  With  Mili- 
tary Administration. 

I  A.  The  authorities  of  a  State  or  Territory  (or,  of  course,  of  a 
county,  town,  etc.)  are  not  empowered  to  tax  an  officer  or  soldier 
of  the  Army  on  account  of  his  pay,  or  for  any  personal  property 
in  his  possession  properly  required  for  the  due  exercise  of  his  office 
or  performance  of  his  military  duties.  Officers  and  soldiers  of  the 
Army  are  instrumentalities  provided  by  law  to  enable  or  assist  the 
President  to  exercise  his  constitutional  function  of  Commander  in 
Chief  and  Executive  of  the  Nation.  The  pay  and  emoluments  fur- 
nished them  by  Congress  are  means  to  make  their  services  possible 
and  effective,  and  their  right  to  receive  and  enjoy  the  same  can 
not  in  any  degree  be  impaired  or  infringed  upon  by  the  authorities 
of  a  State,  which  is  a  distinct  and  inferior  sovereignty,  or  of  a  Ter- 


1020  TAX  I  A. 

ritory,  which  is  another  instrumentality  of  the  United  States.  And 
the  same  principle  of  exemption  properly  applies  to  their  arms, 
equipments,  horses,  and  other  personal  property  required  to  be 
possessed  and  employed  by  them  in  the  military  service.^  R.  30, 
215,  Mar.  31,  1870;  39,  663,  June  3,  1878;  C.  3574,  Mar.  14,  1902, 
Jan.  9,  1905,  and  Feb.  13,  1911;  14582,  May  1,  1903;  22521,  Dec.  19, 
1907,  and  May  8,  1908;  2334-3,  June  6,  1908.  The  Philippine  Islands 
and  Porto  Rico  are  Territories  within  the  meaning  of  the  above  rule. 
G.  21469,  Apr.  24,  1907.  But,  of  course,  an  instrumentality  of  the 
United  States  may  be  taxed  by  a  State  or  Territory,  if  such  tax  is 

^  In  the  leading  caae  applicable  to  this  subject — Dobbins  v.  Commissioners  of  Erie 
County,  16  Peters,  435 — the  Supreme  Court  of  the  United  States,  in  declaring  to  be 
unconstitutional  a  State  statute,  so  far  as  it  authorized  the  taxing  of  the  office  of  a 
captain  in  the  U.  S.  revenue  service,  held  aa  follows:  "The  compensation  of  an  officer 
of  the  United  States  is  fixed  by  a  law  made  by  Congress.  It  is  in  its  exclusive  dis- 
cretion to  declare  what  shall  be  given.  It  exercises  the  discretion  and  fixes  the 
amount,  and  confers  upon  the  officer  the  right  to  receive  it  when  it  has  been  earned. 
Any  law  of  a  State  imposing  a  tax  upon  the  office,  diminishing  the  recompense,  is 
in  conflict  with  the  law  of  the  United  States  which  secures  the  allowance  to  the 
ofiicer."  Further:  "Taxation  by  a  State  can  not  act  upon  the  instruments,  emolu- 
ments, and  persons  which  the  United  States  may  use  and  employ  aa  necessaiy  and 
proper  means  to  execute  their  sovereign  powers.  *  *  *  The  State  governments 
can  not  lay  a  tax  upon  the  constitutional  means  employed  by  the  Government  of 
the  Union  to  execute  its  constitutional  powers. "  In  a  later  case — Society  for  Savings 
V.  Coite,  6  Wallace,  605,  the  same  court  declares:  "All  subjects  over  which  the  sov- 
ereign power  of  a  State  extends  are,  as  a  general  rule,  proper  subjects  of  taxation, 
but  the  power  of  a  State  to  tax  does  not  extend  to  those  means  which  are  employed 
by  Congress  to  carry  into  execution  the  powers  conferred  in  the  Federal  Constitution. 
Unquestionably  the  taxing  power  of  the  States  is  very  comprehensive  and  pervading, 
but  it  is  not  without  limits.  State  tax  laws  can  not  restrain  the  action  of  the  National 
Government  nor  can  they  abridge  the  operation  of  any  law  which  Congress  may 
constitutionally  pass."  This  general  doctrine  is  applied  by  Attorney  Genenal  Black 
(9  Op.,  477)  as  follows:  "The  authorities  of  a  State  can  not  impose  a  tax  upon  the 
salary  of  a  Federal  ofl^icer,  or  upon  the  compensation  paid  by  the  United  States  to 
any  person  engaged  in  their  service."  And  as  illustrating  the  principle  involved, 
see  also  McCuUoch  v.  Maryland,  4  Wheaton,  316;  Weston  v.  Charlestown,  2  Peters, 
449;  Searight  v.  Stokes,  3  Howard,  151;  Bank  of  Commerce  v.  N.  Y.  City,  2  Black, 
620;  Provident  Inst.  v.  Mass.,  6  Wallace,  611;  The  Banks  v.  The  Mayor,  7  id.,  16; 
Bank  v.  Supervisors,  id.,  26;  McGoon  v.  Scales,  9  Wall.,  23;  Railroad  Co.  v.  Peniston, 
18  id.,  5;  Van  Brocklin  v.  Tennessee,  117  U.  S.,  151;  Wisconsin  Railroad  Co.  v.  Price 
County,  133  U.  S.,  497;  Ohio  v.  Thomas,  173  U.  S.,  276;  Carrol  v.  Perry,  4  McLean,  25; 
Stetson  V.  Bangor,  56  Maine,  274;  Opinion  of  Justices,  53  N.  Hamp.,  634;  United  States 
V.  Weise,  5  Pa.  L.  J.  R.,  61;  West.  Un.  Tel.  Co.  v.  Richmond,  26  Grat.,  1;  State  v. 
Garton,  32  Ind.,  1;  7  Op.  Atty.  Gen.,  578;  14  id.,  199.  In  the  case  of  Railroad  Com- 
pany V.  Peniston,  supra,  it  is  specified  by  Strong,  J.,  that,  "the  States  may  not  levy 
taxes,  the  direct  effect  of  which  shall  be  to  hinder  the  exercise  of  any  powers  which 
belong  to  the  National  Government."  In  Ohio  v.  Thomas,  supra,  the  syllabus  reads 
as  follows:  "In  making  provision  for  feeding  the  inmates  of  the  soldiers'  home  in 
Ohio,  in  accordance  with  the  legislation  of  Congress  in  that  respect,  and  under  the 
direction  of  the  board  of  managers,  the  governor  of  the  home  is  engaged  in  the  internal 
administration  of  a  Federal  institution,  and  the  State  legislature  has  no  constitu- 
tional power  to  interfere  with  the  management  which  is  provided  for  it  by  Congress, 
nor  with  the  provisions  made  by  Congress  for  furnishing  food  to  the  inmates,  nor 
does  the  police  power  of  the  State  enable  it  to  prohibit  or  regulate  the  furnishing 
of  any  article  of  food  approved  by  the  officers  of  the  home,  by  the  board  of  managers, 
and  by  Congress."  In  the  14  Op.  Atty.  Gen.,  199,  it  was  held  that  with  respect 
to  land  owned  by  the  United  States  within  the  limits  of  a  State,  over  which  the  State 
has  not  parted  with  its  jurisdiction,  the  United  States  stands  in  the  relation  of  a 

f)roprietor  simply;  and  the  State  officers  have  the  same  right  to  enter  upon  such 
and,  or  into  the  buildings  located  there,  and  seize  the  personal  property  of  indi- 
viduals for  nonpayment  of  taxes  thereon,  as  they  have  to  enter  upon  the  land  or 
into  the  buildings  of  any  other  proprietor  for  the  same  purpose,  such  right  being 
80  exercised  as  not  to  interfere  with  the  operations  of  the  General  Government. 


TAX  I  B.  1021 

authorized  by  Congress.  For  instance,  the  two  acts  of  August  5, 
1909  (36  Stat.  11,  130),  authorized  the  imposition  of. customs  duties 
and  internal-revenue  taxes  on  supplies  imported  into  the  Philippine 
Islands  for  the  use  of  the  Army.     C.  27U7,^  Mar.  14,  1911. 

I  B.  The  principle  exempting  from  taxation  the  office  or  salary  of 
an  ofiicer  of  the  United  States  applies  to  officers  on  the  retired  list 
equally  with  those  on  the  active  list  of  the  Army.  Retired  officers, 
being  a  part  of  the  Army,  are  a  part  of  the  machinery  of  the  Gov- 
ernment, though  a  part  not  often  called  into  active  operation.  R.  36, 
154,  Dec.  21,  1874;  ^91,  Mar.  2,  1875;  C.  14582,  May  1,  1903.  But 
though  a  retired  officer  can  not  legally  be  taxed  by  State  or  munic- 
ipal authorities  on  account  of  his  Army  pay  as  property  or  income, 
he  is  subject  to  be  taxed  for  other  property  owned  by  nim  like  any 
other  citizen.  R.  42,  669,  June  1,  1880;  C.  3574,  July  23,  1909. 
Similarly  held  with  respect  to  enlisted  men  on  the  retired  list  of 
the  Army.  C.  8016,  Mar.  25,  1897;  6799,  July,  1899;  14582,  May  1, 
1903;  22521,  Dec.  19,  1907,  and  May  8,  1908. 

I  C.  The  imposition  of  a  poU  tax  with  the  alternative  that  if  the 
tax  was  not  paid  the  person  taxed  should  work  upon  the  road  would 
be  a  tax  on  the  earnings  of  an  Army  officer  or  soldier  on  the  active 
list,  or  tax  on  such  an  officer's  time,  and  therefore  can  not  legally  be 
made.^    C.  11873,  June  21,  1909;  22808,  Mar.  24,  1909. 

I  D.  An  officer  or  soldier  of  the  Army,  though  not  taxable  officially, 
may  be  and  often  is  taxable  personally.  He  is  not  taxable  by  a  State 
for  his  pay,  or  for  the  arms,  instruments,  uniform  clothing,  or  other 
property  pertaining  to  his  military  office  or  capacity,  but  as  to  house- 
nold  furniture  and  other  personal  property,  not  military,  he  is  (except 
where  stationed  at  a  place  under  the  exclusive  jurisdiction  of  the 
United  States)  equally  subject  with  other  residents  or  inhabitants  to 
taxation  under  the  local  law.^  R.  53,  598,  Apr.  27,  1888;  55,  623, 
June  8,  1888;  P.  49,  217  Sept.  19,  1891;  C.  472,  Oct.  11,  1894;  3521, 
Sept.  18,  1897;  4888,  Sept.  1,  1898;  3574,  Mar.  14,  1902,  and  Jan.  9, 
1905,  and  Feb.  13,  1911. 

I  E.  The  question  of  residence  is  one  of  personal  intent,  an  act  of 
will  being  necessary  to  acquire  it.  An  officer  or  soldier  on  the  active 
list  can  not  properly  be  taxed  as  a  resident  of  a  State  or  Territory  on 
the  sole  ground  that  he  is  stationed  at  a  post  or  place  within  such 
State  or  Territory.  A  member  of  the  Army  is  commorant  at  his  mili- 
tary station  not  by  his  own  volition  but  in  pursuance  of  the  orders  of 
a  military  superior.  By  further  orders,  also,  he  is  liable  at  any  time 
to  be  removed  to  a  different  station  and  one  in  another  State.  His 
abiding  at  his  station  is  therefore  both  involuntary  and  temporary, 
and  it  is  in  general  much  more  reasonably  presumable  that  an  officer's 

^  See  Pundt  v.  Pendleton,  167  Fed.  Rep.,  997,  where  it  was  held  that  persons 
employed  by  the  Quartermaster's  Department  as  teamsters  were  exempt  from  road 
duty,  the  court  saying:  "This  view  of  the  matter,  however,  is  not  controlling  with  me 
because  I  believe  Pundt  is  exempt  from  this  road  duty  not  only  for  the  reason  just 
mentioned,  but  because  of  the  fact  that  he  is  a  necessarv  instrumentality  in  that  por- 
tion of  the  United  States  Army  stationed  at  Fort  Oglethorpe,  and  that  lie  is  such  an 
important  and  necessary  part  of  the  military  establishment  as  that  the  State  and  the 
county  of  Catoosa  have  no  right  to  call  on  him  to  be  absent  from  the  fort  when  such 
absence  would  interfere  with  the  proper  discharge  of  his  duties  as  a  necessary  and 
important,  even  if  an  humble,  part  of  the  Army  of  the  United  States." 

2  See  Finley  v.  City  of  Philadelphia,  32  Pa.  St.,  381. 


1022  TAX  I  F. 

station  is  not  his  residence  than  that  it  is  such.^  R.  30,  215,  Mar.  81, 
1870;  37,  396,  Mar.  16, 1876;  39,  563,  June  3, 1878;  41,  120,  Feb.  21, 
1878;  G.  3574,  Mar.  14,  1902;  14852,  June  25,  1903;  21091,  Feb.  14, 
1907. 

1  F.  The  fact  that  a  man  has  formerly  been  a  soldier,  or  is  now  in 
the  receipt  of  a  j)ension,  or  is  an  inmate  of  a  National  Home  of  Volun- 
teers can  affect  in  no  manner  his  liability  to  taxation  in  the  State  of 
his  residence  or  habitancy,  unless,  and  only  so  far  as,  he  may  belong  to 
a  class  specially  exempted  from  taxation  by  the  laws  of  the  State. 
There  is  nothing  in  the  laws  of  the  United  States  to  relieve  such  a  per- 
son from  a  per  capita  tax  or  a  tax  on  his  property.  P.  60,  325,  July 
8, 1893;  65, 161,  May  29, 1894;  G.  2513,  Aug.  11, 1896;  3574,  July  23, 
1909;  Feb.  13,  1911;  11063,  Aug.  15,  1901;  13119,  Sept.  6,  1911; 
13515,  Oct.  23,1902;  13880,  Dec.  31, 1903;  17962,  May  3, 1905.  Nor 
is  there  anything  in  the  laws  of  the  United  States  to  relieve  a  dis- 
charged soldier  who  had  become  disabled  in  the  service,  or  is  a  pen- 
sioner, from  paying  a  road  tax  or  working  on  the  public  roads. 
C.  2167,  July  6, 1897;  Feb.  14, 1906. 

I G.  There  is  no  statute  of  the  United  States  exempting  ex- 
soldiers  of  the  regular  or  volunteer  service  from  paying  the  usual 
license  fees  for  selling  or  peddhng  goods  that  may  be  required  by 
State  laws  or  municipal  ordinances.  C.  17962,  May  3, 1905,  Apr.  16, 
1908,  Dec.  11, 1911. 

II  A.  The  superintendent  of  a  national  cemetery  can  not  be  im- 

f)risoned  or  compelled  to  work  upon  the  roads  for  failure  to  pay  a  tax 
evied  by  the  State  authorities .^     C.  29377,  Jan.  17,  1912. 

II  B.  A  Territorial  law  provided  that  every  male  inhabitant  of  the 
Territory  should  be  liable  to  pay  a  school  tax,  and  that  any  person, 

^  That  a  person,  however,  shall  be  a  resident  or  inhabitant  (terms  having  practi- 
cally the  same  meaning  in  law)  of  a  State  is  not  essential  to  render  him  or  his  property 
taxable.  The  power  of  a  State  to  tax,  which  is  "one  of  its  attributes  of  sovereignty, " 
extends  to  all  subjects — ^persons,  property,  or  business  within  its  jurisdiction,  and  it 
may,  as  a  general  rule,  legally  tax  personal  property  held  or  being  within  its  limits, 
without  regard  to  the  domicil  of  the  owner.  See  case  of  State  Tax  on  Foreign-Held 
Bonds,  15  Wallace,  319;  Railroad  Co.  v.  Peniston,  18  id.,  29;  Duer -y.  Small,  4  Blatch., 
263;  People  v.  McCreery,  34  Cal.,  432;  Hanson  v.  Vernon,  27  Iowa,  48;  City  of  Philad. 
V.  Xryon,  35  Pa.  St.,  404;  14  Op.  Atty.  Gen.,  200;  Pundt  v.  Pendleton,  167  Fed.  Rep., 
997.  C.  14335,  Mar.  20,  1905.  In  the  opinion  last  cited,  the  Attorney  General,  upon 
the  question  of  the  authority  of  the  State  of  New  York  to  tax  the  property  of  soldiers 
held  by  them  upon  a  part  of  the  Government  lands  at  West  Point  as  to  which  a  cession 
of  the  State  jurisdiction  had  not  in  fact  then  been  obtained,  held  as  follows:  "If  the 
personal  property  referred  to  is  of  a  kind  subject  to  taxation  by  the  laws  of  the  State, 
and  its  situs  is  within  the  territorial  jurisdiction  of  the  State,  I  do  not  think  that  the 
fact  that  the  owner  is  an  enlisted  man  in  the  service  of  the  United  States  and  has  done 
nothing  to  gain  residence  or  citizenship  in  the  State  is  in  itself  sufficient  to  exempt  the 
property  from  State  taxation."  Audit  is  added:  "In  regard  to  land  owned  by  the 
United  States  within  the  limits  of  a  State,  over  which  the  State  has  not  parted  with 
its  jurisdiction,  the  United  States  stand  in  the  relation  of  a  proprietor;^  and  the  local 
officers  have,  in  my  opinion,  the  same  right  to  enter  upon  such  land,  or  into  the  build- 
ings located  there,  and  seize  the  personal  property  of  individuals  for  nonpayment  of 
taxes  thereon,  as  they  have  to  enter  upon  the  land  or  into  the  buildings  of  any  other 
proprietor  for  the  same  purpose ;  it  being  understood  that  in  the  former  case  the  right 
must  be  so  exercised  as  not  to  interfere  with  the  operations  of  the  General  Govern- 
ment. ' '  And  see  14  Op. ,  27.  Persons,  however,  residing  within  a  reservation  or  place, 
exclusive  jurisdiction  over  which  has  been  ceded  to  or  reserved  by  the  United  States,  are  not 
taxable  by  the  authorities  of  the  State  within  the  limits  of  which  the  post  or  place  is 
situated.  See  Mitchell  v.  Tibbetts,  17  Pick.,  298;  Opinion  of  Justices,  1  Met..  580; 
Commonwealth  v.  Young,  Bright,  302;  6  Op.  Atty.  Gen.,  577. 

2  See  Pundt  v.  Pendleton  (167  Fed.  Rep.,  997),  holding  that  Government  t^amst^rs 
were  exempt  from  work  on  the  public  roads. 


TAX  III  A.  1023 

company,  or  corporation  having  in  his  or  their  employ  any  person 
hable  to  pay  sucn  school  tax  should,  on  demand  by  the  school-tax 
collector,  furnish  a  list  of  the  names  of  such  persons  and  pay  the  tax 
for  them.  Held  that  Government  employees  residing  on  the  reserva- 
tion would  be  Uable  for  the  payment  of  the  school  tax  unless  it 
appeared  that  an  instrumentality  of  the  United  States  was  adversely 
affected  as  the  result  of  the  imposition  of  the  tax.  C.  2334S,  June  6, 
1908,  and  June  9, 1909. 

Ill  A.  In  ceding  to  the  United  States  exclusive  jurisdiction  over  a 
mihtary  reservation,  the  act  of  the  legislature  of  the  State  need  not 
specifically  relinquish  the  right  to  tax  the  propertjr  of  the  United 
States,  as  the  State  independently  of  any  act  of  cession  has  no  right 
to  tax  the  means  or  instrumentalities  whereby  the  Government  of  the 
United  States  performs  its  functions.    P.  64,  330,  Apr.  9,  1894. 

Ill  B.  Where  taxes  are  a  lien  upon  land  at  the  time  it  is  conveyed 
to  the  United  States,  and  exclusive  jurisdiction  has  been  vested  in 
the  United  States,  the  taxes  are  not  enforceable  against  the  property 
of  the  United  States.^     C.  1838,  May  14, 1906. 

Ill  C.  The  act  ceding  jurisdiction  over  the  miUtary  reservation  of 
Fort  D.  A.  Russell  reserved  to  the  State  power  to  tax  persons  and 
corporations  doing  business  on  the  reservation.  Held  that  such  a 
reservation  of  power  was  constitutional.^     C.  27365,  Oct.  15,  1910. 

Ill  D.  Held  that  as  exclusive  jurisdiction  had  not  been  ceded  by 
the  State  of  Nebraska  over  the  mihtary  reservation  of  Sidney  Bar- 
racks, the  State  authorities  could  legally  levy  a  hcense  tax  for  the 
selling  of  beer  at  the  post  canteen.^  R.  50,  153,  Mar.  30, 1886.  And 
similarly  held  as  to  the  authority  of  officials  of  Michigan  to  tax,  under 
the  laws  of  that  State,  the  selling  of  Hquor  at  the  canteen  of  Fort 
Mackinac,  a  post  not  under  the  exclusive  jurisdiction  of  the  United 
States.    P.  36,  161,  Oct.  29,1889. 

Ill  E.  The  Mackinac  National  Park  was  established  by  the  act  of 
Congress  of  March  3,  1875  (18  Stat.  517),  which  also  authorized  the 
Secretary  of  War  to  grant  leases,  for  building  purposes,  of  certain 
small  parcels  of  land  within  the  park.  Under  this  authority  a  num- 
ber of  parcels  were  leased  upon  which  improvements  were  made  by 
the  lessees,  and  the  State  authorities  have  proceeded  to  impose  taxes 
upon  such  improvements.  By  the  act  of  Congress  of  June  15,  1836, 
authorizing  the  admission  of  the  State  of  Michigan,  lands  of  the 
United  States  within  the  State  were  to  be  exempted  from  taxation. 
But  the  State  has  never  ceded  to  the  United  States  exclusive  juris- 
diction over  the  lands  of  this  park,  and  therefore  never  parted  with 
its  authority  to  tax  private  property  located  therein.  Held  that  the 
improvements  referred  to  were  legally  taxable  as  the  private  property 
of  individuals  under  the  laws  of  the  State.     P.  39,  89,  Feb.  26, 1890. 

Ill  F.  Certain  land  was  conveyed  to  the  United  States  by  the 
city  of  St.  Paul,  Minn.,  in  1892,  for  the  erection  thereon  of  a  quarter- 
master and  commissary  depot,  an  appropriation  having  been  made 
by  Congress  for  the  purpose  on  condition  that  the  land  should  be 
conveyed  to  the  United  States  free  of  cost.     Held  that  the  property 

^  15  Op.  Atty.  Gen.,  167;  Martin  v.  House,  39  Fed.  Rep.,  694;  Brannon  v.  Burnea, 
39  id.,  892.     See  XIV  Comp.  Dec,  506. 

2  See  Fort  Leavenworth  R.  R.  Co.  v.  Lowe,  114  U.  S.,  525. 

^  The  "canteen, "  referred  to  in  this  section,  was  not  the  same  as  the  "  post  exchange, " 
which  is  maintained  under  existing  regulations.  See  the  opinion  of  the  Court  of  Claims 
quoted  in  Dugan  v.  United  States,  34  Ct.  Cls.,  458. 


1024  TAX  III   G. 

is  an  instrumentality  of  the  United  States  Government,  and  as  such 
is  not  subject  to  local  taxation  of  any  kind,  and  therefore  not  subject 
to  an  assessment  for  street  improvements.  This  principle,  declared 
by  Chief  Justice  Marshall  in  McCulloch  v.  Maryland  (4  Wheat., 
315),  has  been  applied  in  a  large  number  of  later  cases  and  can  no 
longer  be  questioned.^  (9.  2598,  Sejyt.  10,  1896;  8272,  May  23,  1900; 
10094,  Mar.  29,  1901.  Similarly  lield,  with  respect  to  assessments, 
under  State  legislation  and  municipal  ordinance,  for  the  improve- 
ment of  street  and  sidewalks  adj  acent  to  the  military  reservation  of 
Jackson  Barracks,  La.  C.  2637,  Sept.  25, 1896;  25195,  July  26, 1909. 
So,  held,  with  respect  to  a  municipal  assessment  for  sprinkling  the 
street  in  front  of  the  United  States  clothing  depot  at  St.  Louis. ^ 
C.  11874,  J^^'  ^0,  1902.  Also  lield  that  the  United  States  was  not 
liable  for  an  assessment  for  laying  water  pipes  or  constructing  a 
sewer  ^  along  a  street  adjacent  to  a  national  cemetery.  C.  3930, 
Mar.  12,  1898;  13^28,  Oct.  11,  1902. 

Ill  G.  Although  the  United  States  is  not  liable  to  the  payment 
of  an  assessment  for  the  construction  of  a  sewer  along  the  street 
adjacent  to  its  property,  still  if  it  desires  to  use  a  sewer  constructed 
and  owned  bv  a  town  it  must  pay  for  such  privileges. '^  C.  6831, 
June  24,  1902;  13428,  Oct.  11,  1902. 

Ill  H.  A  tax  on  real  estate  purchases  under  the  laws  of  Tennessee 
would  not  be  operative  against  the  United  States  as  a  purchaser  of 
land  in  that  State  for  the  Shiloh  National  Mihtary  Park.^  C.  2062, 
Apr.  2,  1897. 

Ill  I.  The  United  States  is  not  liable  for  a  ''consumption  tax" 
levied  on  sugar  purchased  in  Porto  Rico  for  the  use  of  Umted  States 
troops.     C.  6054,  Mar.  18,  1899.^ 

Ill  J.  The  board  of  animal  inspectors  at  Honolulu,  appointed 
under  a  statute  of  Hawaii,  submitted  a  claim  for  inspecting  cavalry 
horses  and  draft  mules  of  the  United  States,  amounting  to  the  statu- 
tory fee,  held  that  the  claim  was  in  effect  a  tax  by  the  Territory  of 
Hawaii  on  the  operations  of  the  Government  of  the  United  States; 

^  The  Comptroller  of  the  Treasury,  in  an  opinion  dated  January  30,  1896  (Vol.  II, 
375),  said:  "It  is  well-established  law  that  the  property  of  the  United  States,  or  any 
of  the  instrumentalities  employed  by  them  in  the  performance  of  their  proper  func- 
tions, is  not  the  subject  of  taxation  by  the  States  or  any  subdivisions  thereof.  (Mc- 
Culloch V.  Maryland,  4  WTieat.,  316;  Osborn  v.  Bank  of  the  United  States,  9  Wheat., 
738;  Weston  v.  Charleston,  2  Pet.,  449;  Dobbins  v.  Commissioners,  16  Pet.,  435;  Bank 
of  Commerce  v.  New  York  City,  2  Black,  620;  Bank  Tax  Case,  2  Wall.,  200.)  Most 
of  these  cases  related  to  the  taxation  of  instrumentalities  adopted  by  the  United 
States  for  the  proper  execution  of  the  powers  vested  in  the  Federal  Government. 
The  principle  has  been  specifically  applied  to  the  taxation  of  the  property  of  the 
United  States  (9  Op.  Atty.  Gen.,  291),  has  been  acquiesced  in  by  the  courts  of  all  the 
States  in  which  the  question  has  arisen  (Andrews  v.  Auditor,  28  Grattan,  115;  Chi- 
cago, etc..  Railway  Co.  v.  City  of  Davenport,  51  Iowa,  451),  and  has  also  been 
specifically  applied  to  assessments  for  public  works  from  which  specific  benefits  would 
bederived  (Fagani;.  Chicago,  84  111.,  227)."  See  also  7  FComp.  Dec.  1, 16.  Ithasbeen 
the  policy  of  Congress  to  refuse  appropriations  for  such  assessments.  C.  22781,  Feb. 
24,  1908;  26768,  May  31, 1910;  28164,  Apr.  21, 1911.  But,  of  course,  where  a  sidewalk 
or  other  improvement  adjacent  to  Government  property  is  reasonably  necessary  for 
the  proper  use  or  improvement  of  such  property,  it  may  be  constructed  out  of  any 
appropriation  applicable  thereto. 

2  See  IX  Comp.  Dec,  181,  to  same  effect, 

3  See  XI  Comp.  Dec,  629,  to  same  effect. 

*  See  remark  of  Comptroller  in  XI  Comp.  Dec,  630,  last  sentence  on  page, 
e  See  XIV  Comp,  Dec,  256. 


TAX  III  K.  1025 

that  the  instrumentalities  and  agencies  of  such  Government  are 
exempt  from  local  taxation;  and  that,  therefore,  the  claim  could  not 
legally  be  paid,  but  that  if  the  inspection  provided  for  by  the  statutes 
of  Hawaii  were  valuable  to  the  United  States  it  would  oe  proper  for 
the  United  States  to  enter  into  a  contract  with  the  proper  Hawaiian 
authorities  for  such  inspection  and  to  pay  therefor  a  sum  equal  to  the 
statutory  fee.  C.  5554,  Dec.  SO,  1898;  18851,  July  28,  1905.  So, 
where  the  city  of  Manila  imposed  an  inspection  tax  of  50  cents  on 
each  horse  landed  from  any  vessel  and  it  was  attempted  to  collect 
the  tax  on  private  horses  of  Army  officers  arriving  on  transports 
from  the  Umted  States,  the  horses  being  of  a  class  for  which  forage 
was  furnished  at  the  expense  of  the  Government,  held,  that  reim- 
bursement could  not  be  made  to  officers  for  payment  of  such  charges. 
C.  5554-j  Dec.  SI,  1909;  Jan.  6,  1910.  So,  held,  where  a  claim  was 
made  by  a  State  veterinarian  for  the  statutory  fee  for  inspecting 
and  administering  the  mallein  treatment  to  public  horses  of  the 
United  States.  0.  S554,  Oct.  22, 1910.  So  held,  also,  where  the  city 
of  Manila  claimed  a  fee  for  the  inspection  by  the  city  engineer  of  the 
boilers  in  pubUc  buildings  and  vessels  of  the  United  States.  C.  5554, 
Dec.  8,  1909;  19212,  Feb.  17,  1906.  So,  held,  where  the  city  of 
Manila  claimed  the  right  to  inspect  all  electrical  installations  for 
lighting  purposes  on  a  miUtary  reservation  and  to  charge  fees  for  the 
same.     €.  21469,  Apr.  24,  1907. 

Ill  K.  Where  the  State  authorities  at  Newport  News  attempted 
to  charge  against  an  Army  transport  the  fee  fixed  by  State  laws  for 
ciuarantine  inspection  and  harbor  regulation,  held  that  such  a 
charge  would  constitute  a  tax  on  an  instrumentality  of  the  United 
States  and  could  not  be  imposed.  As  under  its  police  power  a 
State  could  legally  establish  quarantine  and  port  regulations,  a  trans- 
port entering  a  harbor  should  submit  to  such  inspection  and  obey 
such  regulations,  but  no  charge  could  be  imposed  for  such  services, 
as  such  a  charge  would  be  in  the  nature  of  an  impost.  However,  if 
the  inspection  and  port  regulations  are  valuable  to  the  United  States, 
it  would  be  proper  to  enter  into  a  contract  with  the  proper  State 
authorities  whereby  the  State  authorities  would  render  such  service 
and  the  United  States  would  pay  therefor  an  amount  equal  to  the 
statutory  fee.  C.  20564,  Oct.  27,  1906,  and  Nov.  13,  1906.  So, 
where  an  attempt  was  made  to  charge  against  an  Army  transport 
entering  the  harbor  of  Habana  a  fee  of  $5  required  by  a  Cuban 
statute  for  inspection  services,  at  a  time  when  Cuba  was  under 
military  occupation  by  United  States  troops,  held  that  whatever 
might  be  the  character  of  the  government  established  by  the  United 
States  in  Cuba,  it  was  clear  that  such  government,  together  with 
the  United  States  military  forces  and  the  agencies  and  instrumen- 
talities which  accompanied  them,  was  independent  of  the  constitu- 
tion and  laws  of  the  Republic  of  Cuba,  and  not  subject  to  their 
operation.  But  held,  further,  that  the  public  vessels  of  the  United 
States  arriving  in  Cuba  are  not  exempt  from  supervision,  and  that 
it  would  be  proper  for  the  Governor  General  to  call  upon  the  com- 
manding officer  of  the  occupying  forces  to  require  Army  transports 
to  provide  themselves  with  bills  of  health  at  their  respective  ports 
of  origin,  and  for  the  Governor  General  to  require  them  to  suomit 
to  such  inspection  in  Cuban  ports  as  might  be  necessary  to  prevent 
31106°— 12 65 


1026  TAX  III  L. 

the  introduction  of  disease.  Such  requirements  would,  however, 
be  by  the  authority  of  the  United  States  and  not  by  that  of  the 
Government  of  Cuba,  and  no  fee  should  be  charged  for  such  inspec- 
tion.    C.  20564,  Nov.  21,  1906. 

Ill  L.  Where  the  State  authorities  at  Little  Rock,  Ark.,  put  in  a 
claim  for  177  health  certificates  at  50  cents  each  issued  to  soldiers 
transported  through  that  city  to  Memphis,  Tenn.,  claiming  that  it 
was  necessary  for  the  troops  to  have  these  certificates  because  Mem- 
phis was  at  that  time  quarantined  against  Little  Rock,  held  that  the 
police  power  of  a  State  in  the  matter  of  quarantine  can  not  be  exer- 
cised so  as  to  interfere  with  a  movement  of  United  States  troops, 
since  it  is  not  comjjetent  for  a  State  to  fetter  the  operations  of  the 
United  States  in  this  way,  and  therefore  such  claim  is  not  a  proper 
charge  against  the  United  States  and  can  not  be  paid  out  of  the 
appropriation  for  the  contingencies  of  the  Army.  u.  6339,  May  1, 
1899. 

Ill  M.  Held  that  an  officer  of  the  Army,  duly  charged  with  the  duty 
of  making  a  sale  of  damaged,  etc.,  medical  supplies  under  the  authority 
of  section  1241,  R.  S.,  by  which  the  President  is  empowered  to  order 
such  sales  in  certain  cases,  could  not  lawfully  be  required  to  take  out 
and  pay  for  a  Hcense  as  a  merchant  under  the  laws  of  the  State  in 
which  the  sale  was  to  be  made.  Such  a  requirement  would  be  a 
restriction  upon  the  regular  and  legal  execution  of  the  powers  of  the 
General  Government,  and  therefore  beyond  the  authority  of  a  State. 
R.  39,  6,  May  8,  1876. 

Ill  N.  A  State  can  not  legally  impose  a  license  fee  on  a  Govern- 
ment automobile  used  in  the  service  of  the  United  States.  C.  25127, 
July  25,  1909,  June  13,  1909,  Nov.  6,  1909,  Dec.  5,  1910,  and  Oct.  25, 
1911. 

Ill  O.  The  District  of  Columbia  can  not  impose  a  license  fee  on  a 
Government  vehicle  used  in  the  service  of  the  United  States.^  0, 
28165,  Apr.  24,  1911. 

III  P.  A  post  exchange  is  not  legally  liable  for  local  or  municipal 
taxes  or  licenses,  on  the  sale  of  commodities  for  the  exclusive  use  of 
persons  in  the  mihtary  service,  as  such  exchange  is  an  instrumentaUty 
of  the  Government  of  the  United  States.^     C.  7324,  Nov.  21,  1899. 

IV  A.  A  Territorial  law  provided  that  every  male  inhabitant  of  the 
Territory  should  be  liable  to  pay  a  school  tax  and  that  any  person, 
company,  or  corporation  havmg  in  his  or  their  employ  any  person 
liable  to  pay  such  school  tax  should,  on  demand  by  the  school-tax 
collector,  furnish  a  list  of  the  names  of  such  persons  and  pay  the  tax 
for  them.  Held  that  under  the  above  law  a  quartermaster  at  a  post 
in  that  Territory  could  not  act  as  agent  for  the  Territory  in  the  col- 
lection of  its  taxes  by  withholding  from  a  contractor  or  employee  any 
money  that  might  be  due  him  for  the  purpose  of  paying  school  tax. 
C.  23343,  June  6,  1908,  and  June  9,  1909. 

IV  B.  Where  a  Territorial  law  provided  for  the  posting  of  notices 
of  school  tax,  Tield  that  a  notice  of  such  tax  could  legally  be  posted  on 
a  military  reservation  in  the  Territory  so  long  as  it  did  not  interfere 
with  military  administration.  C.  23343,  June  6,  1908,  and  June  9, 
1909. 

^  See  XV  Comp.  Dec,  231,  to  the  same  effect. 
2  See  Dugan  v.  U.  S.,  34  Ct.  Cls.,  458. 


TAX — territories:  synopsis.  1027 

CROSS    REFERENCE. 

Commanding  officers'  duty See  Army  I  B  11. 

Military  government See  War  I  C  6  f  (1);  8  a  (2)  (c)  [1.] 

Military  reservation See  Public  property  V  E  1  a. 

Retired  officer See  Retirement  I  G  2  e. 

Road  tax See  Civilian  employees  III  A. 

TELEGRAM. 

See  Communications  III  A. 

Appropriations  for See  Appropriations  XXVI. 

As  evidence See  Discipline  XI  A  17  b  (2)  (a). 

By  militia See  Militia  XIV  B. 

Commercial See  Territories  III  D  to  E. 

Post  exchanges See  Government  agencies  II  J  6. 

TELEGRAPH  LINES. 

Maintenance See  Appropriations  LVI. 

TELEPHONE  CALLS. 

See  Appropriations  XXVI. 
Hospitals See  Appropriations  XLIII. 

TENURE  OF  OFFICE. 

Army See  Office  III  G. 

Volunteers See  Volunteer  Army  I  B. 

TERM  OF  ENLISTMENT. 

See  Enlistment  I  B  2  to  3. 

Medal  for  serving  beyond See  Insignia  o.p  merit  I  E  2. 

Paid  for  serving  beyond See  Pay  and  allowances  I  A  1  a. 

Retention  of  sick  soldier See  Enlistment  I  B  2  i. 

Retention  of   Volunteers  in  service  after  See  Volunteer  Army  IV  C  to  D. 
organization  mustered  out. 

TERRITORIES. 

I.  STATUTES  OF. 

A.  Operative  on  Reservations  Unless  in  Conflict  with  United  States 

Laws  or  Regulations Page  1028 

B.  Can  Not  Tax  Government  Instrumentality. 
n.  COURTS  OF. 

A.  Military  Must  Obey  Subpoenas. 
m.  ALASKA. 

A.  Citizenship  in  United  States,  How  Obtained  There. 

B.  Use  of  Troops  as  a  Posse  Comitatus Page  1029 

C.  Coal  May  be  Sold  to  Civilians  for  Humane  Reasons. 

D.  Commercial  Telegraph  Business. 

1.  Accepted  for  cash  paid  in  advance. 

2.  Not  privileged. 

E.  Military  Authorities  Can  Not  Issue  Permits  for  Introduction  of 

Liquor  into  Alaska. 

F.  Alaskan  Road  Commission. 

1.  Authority  of. 

G.  Civil  Employees  of  United  States. 

1.  May  be  required  to  work  on  roads Page  1030 


1028  TEKEITOEIES  I  A. 

IV.  PHILIPPINE  ISLANDS. 

A.  Use  of  Regular  Troops.     {See  Army  II to  III.) 

B.  Constabulary. 

1.  Force  of  peace  oflficers. 

2.  Status  of  Army  officers  who  hold  office  in  constabulary. 

a.  May  not  assume  command  of  transport  by  virtue  of  increased 

rank Page  1031 

(1)  But  entitled  to   quarters,    etc.,   in  accordance   with 
increased  rank. 
V.  PANAMA  CANAL  ZONE. 

A.  United  States  Responsible  for  Order. 

I  A.  A  Territorial  statute  is  operative  upon  a  military  reservation 
within  the  Territory  so  long  as  it  does  not  conflict  with  the  laws  of 
the  United  States  or  with  the  military  administration  or  legitimate 
operations  of  the  Government.  Thus,  lield  that  a  statute  of  Arizona 
making  it  penal  to  seU  intoxicating  liquor  to  Indians,  while  it  would 
inhibit  a  post  canteen  from  selling  beer  (if  intoxicating)  to  Indians 
in  general,  could  not  legally  affect  the  sale  of  such  beer  (at  a  time 
when  the  sale  of  beer  to  soldiers  was  permitted)  to  Indians  who 
were  enlisted  soldiers  of  the  United  States,  and  therefore  within  the 
regulations  of  the  Army  allowing  such  sale  to  soldiers  under  certain 
conditions.^  P.  J^8,  ^64,  Aug.,  1891;  51,  199,  Jan.,  1892;  G.  11357, 
Oct  10,  1901;  12700,  June  2,  1902;  14335,  Mar.  20,  1903;  18063, 
Sept.  6,  1905;  21469,  Apr.  24,  1907.  ^     ' 

I  B.  It  is  well  settled  that  the  government  of  a  Territory  or  terri- 
torial possession  of  the  United  States  can  not,  unaided  by  legislation, 
impose  a  tax  upon  an  instrumentality  of  the  United  States. ^ 

Where  the  service  rendered  by  an  agency  of  a  Territorial  or  insular 
government  is  necessary,  recommended  that  it  be  placed  upon  a  con- 
tractual basis,  the  compensation  not  to  exceed  in  any  case  the  rates 
established  by  law.     C.  21469,  Apr.  24,  1907. 

II  A.  The  military  should  obey  the  subpoenas  of  the  district  courts 
of  Territories,  which,  under  section  1910,  R.  S.,  are  vested,  in  all 
cases  arising  under  the  Constitution  and  laws  of  the  United  States, 
with  the  same  jurisdiction  as  the  United  States  circuit  and  district 
courts.  Sections  877  and  911,  R.  S.,  prescribe  as  to  the  form  and 
effect  of  such  subpoenas,  and  where  a  subpoena  served  upon  an  officer 
or  soldier  conforms  substantially  with  these  forms  it  should  be  com- 
plied with.     R.  54,  124,  July,  1887;^  C.  21469,  Apr.  24,  1907. 

III  A.  By  the  treaty  of  cession  with  Russia  subjects  of  that  nation 
inhabiting  the  Territory  of  Alaska  at  the  date  of  the  treaty  and  con- 
tinuing to  remain  such  inhabitants  for  three  years  became  thereupon 
American  citizens.  But  the  treaty  neither  mentions  nor  refers  to 
British  subjects  or  the  subjects  of  any  foreign  nation  other  than  Rus- 
sia; such  persons,  therefore,  residing  in  the  Territory  can  become  citi- 
zens only  m  the  mode  and  form  prescribed  by  the  United  States  natu- 
ralization laws.     R.  38,  555,  Apr.  12,  1877. 

^  See  TJ.  S.  v.  Hurshman  (53  Fed.  Rep.,  543),  in  which  it  was  held  that  an  Indian 
of  the  Nez  Perces  tribe,  a  soldier  in  the  United  States  Army,  was  an  Indian  under 
the  charge  of  an  Indian  superintendent  or  agent  within  the  meaning  of  sec.  2139, 
R.  S.,  which  provides  that  every  person  who  disposes  of  spirituous  liquors  to  any 
Indian  "under  the  charge  of  any  Indian  superintendent  or  agent  *  *  *  shall  be 
punishable    *    *    *." 

2 II  Comp.  Decs.,  375;  4  id.,  116.  i 


TEKRITORTES  III  B.  1029 

III  B.  The  ''posse  comitatus  act"  of  June  18, 1878  (20  Stat.  152), 
is,  by  section  29,  act  of  June  6,  1900  (31  Stat.  330),  made  inoperative 
in  Alaska.  C.  8119,  Apr.  17,  1897;  Apr.  1,  1907.  As  the  United 
States  marshal  is  by  statute  made  the  judge  of  the  necessity  of  using 
military  force  in  Alaska  (act  of  Mar.  3,  1899,  30  Stat.  1324),  the 
commanding  officer  of  military  forces  in  that  Territory  should 
assist  the  marshal  in  maintaining  order,  but  such  order  should  pass 
to  the  local  commanding  officer,  who,  with  the  forces  under  his  com- 
mand and  acting  under  his  orders,  should  carry  the  views  of  the 
marshal  into  effect.  C.  3119,  Feb.  13,  1908.  It  is  for  the  marshal 
to  determine  when  the  emergency  exists  which  necessitates  the 
employment  of  militaiy  force;  and  it  is  for  the  commanding  officer 
of  the  troops  to  direct  their  employment  for  the  accomplishment  of 
the  purposes  so  indicated.     C.  3119,  Feb.  13,  1908. 

Ill  C.  Where  it  is  necessary,  by  reason  of  emergency  and  on 
account  of  the  overruling  demands  oi  humanity,  to  sell  small  amounts 
of  coal-  to  civilians  in  Alaska,  when  the  supply  for  military  purposes 
is  in  excess,  lield  that  such  sales  may  be  made  at  net  cost,  delivered 
at  place  of  sale,  but  that  such  sales  should  be  reported  to  Congress  at 
its  next  meeting.     C.  19307,  Mar.  2  and  Oct.  13,  1906. 

Ill  D  1.  Wlme  a  discretion  is  vested  in  the  Secretary  of  War  by 
the  act  of  May  26,  1900  (31  Stat.  206),  in  the  matter  of  allowing  com- 
mercial telegraph  business  to  be  done  on  credit,  held  that  the  present 
regulations  do  not  authorize  credit  messages,  and  that,  until  new 
regulations  are  published  authorizing  such  credit,  business  over  the 
Alaskan  telegraph  lines  should  be  conducted  on  a  cash  basis.  C. 
20409,  Sept.  21,  1906. 

Ill  D  2.  Authority  was  requested  by  the  United  States  marshal  in 
Alaska  to  examine  telegrams  sent  over  the  Alaskan  telegraph  lines 
by  parties  suspected  of  robbery;  held,  to  be  lawful  upon  request  of 
the  proper  court  or  civil  authority,  as  such  telegrams  are  not  privi- 
leged.    C.  20085,  July  19,  1906. 

Ill  E.  In  view  of  the  terms  of  the  act  of  May  17, 1884  (23  Stat.  24) , 
estabhshing  a  civil  government  for  Alaska,  held  that  the  military 
authorities  could  no  longer  legally  issue  permits  for  the  introduction 
of  Uquors  into  Alaska  under  General  Order  57  of  1874,  section  14  of 
said  act  being  deemed  impUedly  to  repeal,  as  to  Alaska,  that  portion 
of  section  2139,  R.  S.,  which  empowered  the  Secretary  of  War  to 
authorize  such  introduction.^     R.  50, 529,  July,  1886. 

Ill  F  1 .  Held  to  be  within  the  authority  of  the  Alaskan  road  com- 
mission to  construct  a  wooden  tramway  over  portions  of  roads  and 
trails  where  that  form  of  road  will  best  subserve  the  purposes  of 
traffic.     C.  18173,  June  15,  1905. 

The  Alaskan  road  commission  asked  authority  to  transfer  a  certain 
horse,  purchased  out  of  Army  appropriations,  to  the  hst  of  property 
purchased  out  of  tax  funds;  held  that  such  transfer  would  not  be  law- 
ful.    C. 18173, Aug. 2, 1907. 

Authority  was  requested  to  purchase  the  right  of  way  of  the  Copper 
River  &  Northwestern  Railway  Co.  as  part  of  the  road  which  the 
commission  was  authorized  to  construct.  Held,  that  such  a  convey- 
ance in  the  operation  of  a  license  from  the  railroad  company  for  a 
period  of  five  years,  at  the  expiration  of  which  the  roadway  was  to  be 

1  See  U.  S.  V.  Nelson,  29  Fed.  Rep.,  202. 


1080  TERRITORIES  III  G  1. 

restored  to  the  licensor,  would  be  within  the  authority  of  the  commis- 
sion.    C.  18173,  Apr.  10,  1908.  ^ 

III  G  1.  Where  certain  civihan  employees  of  the  United  States 
were  required  to  perform  labor  on  roads  in  Alaska,  in  the  operation  of 
the  act  of  April  27,  1904  (33  Stat.  391),  tieU  that  the  War  Depart- 
ment is  without  the  power  to  excuse  comphance,  but  that  the  em- 
ployee should  present  his  claim  for  exemption  to  the  proper  preciact 
authorities,  accompanied  by  a  certificate  showing  the  character  of  his 
employment,  and  that  his  entire  services  are  necessary  in  the  admin- 
istration of  the  regiment,  post,  or  depot  at  which  he  is  employed  by 
the  United  States.     C.  20327,  Mar.  I4,  Sept.  24,  and  Oct.  1,  1910. 

IV  B  1.  The  Philippine  Constabulary  is  a  force  of  peace  officers 
created  by  an  act  of  the  Philippine  Commission  in  virtue  of  its  power 
to  legislate  in  matters  affecting  the  Philippine  Islands.  The  duties  of 
the  officers  and  men  composing  the  constabulary  are  prescribed  by 
law  and  chiefly  relate  to  the  maintenance  of  public  order  and  the 
enforcement  of  the  laws.  When  resistance  to  such  enforcement  is 
encountered  or  when  the  peace  of  the  islands  is  threatened,  it  is  made 
their  duty  to  overcome  such  opposition  and  to  restore  civil  order, 
using  such  and  so  much  force  as  is  necessary  for  that  purpose.  C, 
17508,  Feb.  16,  1905. 

IV  B  2.  The  status  of  the  Philippine  Constabulary  and  the  officers 
of  the  Army  who  are  by  law  permitted  to  hold  civil  office  in  that  body 
was  made  the  subject  of  an  expression  of  opinion  by  this  office,  under 
date  of  April  8,  1904,  in  which  it  was  said,  with  the  approval  of  the 
Secretary  of  War,  that  ^'The  Philippine  Constabulary  is  a  force  of 
peace  officers  created  by  an  act  of  the  Philippine  Commission,  in 
virtue  of  its  power  to  legislate  in  matters  affecting  the  Philippine 
Islands,  The  duties  of  the  officers  and  men  composing  the  constabu- 
lary are  prescribed  by  law  and  chiefly  relate  to  the  maintenance  of 
pubhc  order  and  the  enforcement  of  the  laws.  When  resistance  to 
such  enforcement  is  encountered  or  when  the  peace  of  the  islands  is 
threatened,  it  is  made  their  duty  to  overcome  such  opposition  and  to 
restore  civil  order,  using  such  and  so  much  force  as  is  necessary  for 
that  purpose. ''  C,  17508,  Feb.  15, 1905.  And  ''The  operation  of  the 
act  of  January  30,  1903  (32  Stat.  783),  has  been  to  vest  in  certain  offi- 
cers of  the  Philippine  Constabulary  the  same  power  of  military  com- 
mand over  companies  of  the  Philippine  Scouts,  which  are  ordered  to 
assist  the  constabulary  in  the  maintenance  of  order,  as  is  habitually 
exercised  by  the  officers  of  the  line  of  the  Army  over  the  commands  to 
which  they  have  been  assigned  by  the  President,  or  by  mihtary  supe- 
riors deriving  their  authority  from  the  President.  The  control  of  the 
Chief  of  the  Phihppine  Constabulary  over  his  subordinates  in  that 
service  is  derived  from  the  legislation  of  the  Philippine  Commission 
and  from  the  orders  of  the  civil  governor,  conveyed  to  such  chief 
either  directly  or  through  the  secretary  of  commerce  and  police ;  and 
his  authority  over  such  companies  of  Phihppine  Scouts  as  are  em- 
ployed, in  support  of  the  constabulary,  in  the  maintenance  of  order  is 
a  strictly  mflitary  command  and  is  derived  from  the  act  of  January  30, 
1903,  which  obviously  has  application  to  cases  in  which  the  disturb- 
ance is  so  limited  and.  localized  that  order  can  be  restored  by  the  em- 
ployment of  the  civil  agencies  provided  for  that  purpose  with  the 
assistance  of  a  detachment  of  Philippine  Scouts;  in  other  words,  the 
extent  and  amount  of  the  disorder  is  known  to  the  civil  governor,  who 


TERBITORIES — THE  ADJUTANT  GENEBAL.  1031 

has  ground  for  the  belief  that  the  constabulary  force,  with  the  assist- 
ance of  one  or  more  companies  of  scouts,  can  restore  order  or  secure 
the  execution  of  the  laws  in  the  disturbed  locality  without  formally 
calling  upon  the  military  commander  for  the  employment  of  troops 
in  the  method  prescribed  in  the  President's  proclamation  of  July  3, 
1902/'     C.  17608,  Feb.  IS,  1905. 

IV  B  2  a.  Where  an  officer  of  the  Philippine  Constabulary,  having 
the  rank  of  colonel  and  assistant  cliief  of  constabulary,  was  prosecut- 
ing a  voyage  to  Manila  on  an  Army  transport,  held  that  he  was  not 
entitled  to  command  the  troops  on  board  in  the  operation  of  the 
one  hundred  and  twenty-second  article  of  war — his  power  to  com- 
mand being  restricted  in  the  operation  of  the  act  of  January  30,  1903 
(32  Stat.  783),  to  the  command  of  Phihppine  troops  in  certain  con- 
ditions of  emergency.     C.  17508,  Feb.  15,  1906. 

IV  B  2  a  (1).  The  rank  of  colonel,  which  has  been  conferred  upon 
an  Army  officer  as  assistant  chief  of  the  Phihppine  Constabulary, 
entitles  the  officer  upon  whom  it  has  been  conferred  to  the  same 
precedence,  dignities,  and  privileges  to  which  a  colonel  in  the  line  or 
staff  of  the  Army  is  entitled  by  law,  regulations,  or  the  orders  of  the 
War  Department;  and  he  is  also  entitled  to  the  same  consideration  in 
the  assignment  of  stateroom  accommodations  upon  an  Army  trans- 
port to  which  a  colonel  of  the  fine  or  staff  would  be  entitled  under 
the  same  circumstances.     C.  17508,  Feb.  15,  1905. 

V  A.  It  is  the  duty  of  the  State  of  Panama  to  maintain  public  order 
within  its  territory,  and  in  the  execution  of  that  duty  it  may  enact 
and  enforce  such  laws  as  are  calculated  to  attain  that  end.  It  is 
assumed  that  such  a  body  of  laws  and  regulations  exists  in  the  State, 
and  that  their  due  and  proper  enforcement  will  suffice  to  maintain 
pubfic  order.  If  those  laws  are  set  at  defiance,  or  if  their  execution 
IS  hindered  or  prevented  by  any  persons,  or  combinations  of  persons, 
and  the  existence  of  that  fact  has  been  determined  to  the  satisfaction 
of  the  President,  then  it  becomes  his  duty  to  remove  such  hindrances 
and  to  take  such  steps  as  are,  in  his  opinion,  necessary  to  give  such 
fuU  and  unimpeded  operation  to  the  laws  as  will  restore  and  secure 
the  maintenance  of  civil  order  within  the  territorial  limits  to  which 
his  jurisdiction  under  the  treaty  extends. 

It  is  also  the  opinion  of  this  office  that  the  President  can  give  such 
directions  to  the  Secretary  of  War  as  in  his  judgment  are  necessary  to 
secure  due  execution  of  the  treaty,  and  that  the  Secretary  of  War, 
by  the  issue  of  appropriate  instructions  in  the  name  of  the  President 
to  the  commanding  officer  of  the  forces  stationed  in  the  Canal  Zone, 
can  cause  such  steps  to  be  taken  as  will  be  calculated  to  remove  or 
overcome  the  obstacles  to  the  execution  of  the  laws,  and  thus  secure 
the  restoration  of  pubfic  order  within  the  fimits  of  such  zone,  and 
in  the  cities  of  Colon  and  Panama  and  the  territories  adjacent  thereto. 
C.  17164,  Nov.  15,  1904. 

CROSS    REFERENCES, 

Hawaii See  Militia  X  D. 

Laws  of,  on  military  reservations See  Public  property  V  H  2  to  3. 

School  tax See  Tax  IV  B . 

THE  ADJUTANT  GENERAL. 

Chief  of  corps See  Insignia  of  merit  II  H  1. 

CiLstodian  of  records See  Volunteer  Army  IV  H  1. 

Duties  of See  Army  I  G  3  a  (2). 

Pay  and  allowances  I  C  2. 


1032  THEATER  TICKETS — TEANSFER  OF  OFFICERS. 

THEATER  TICKET. 

Owned  and  used  by  soldiers See  Uniform  I  B  2  to  3. 

THE  NATIONAL  MATCH. 

See  Militia  VI  C  2  c. 
Transportation  of  teams See  Militia  VII  D. 

TICKETS. 

Streetcar See  Army  I  G  3  b  (2)  (a)  [1]. 

Theater See  Uniform  I  B  2  to  3. 

TIME  OF  PEACE. 

Enlistments  in See  Enlistment  I  C  to  D. 

Punishment  in See  Discipline  XII  B  1  a. 

TIME  OF  WAR. 

Boxer  uprising.. See  Articles  of  War  CIII  F  2  a. 

Department  commander  as  reviewing  au-  See  Articles  op  War  C VI  A. 
thority. 

Deserter's  release See  Desertion  XVII  E. 

Desertion See  Articles  of  War  CIII  F  2. 

Desertion  V  F;  X  B;  XVIII  A;  B. 

Extra  duty See  Pay  and  allowances  I  C  6  c  to  e. 

Judicial  notice See  Discipline  II  D  15  a. 

Mitigation  during See  Articles  of  War  CXII  A  1  a  (1). 

Offense  in See  Discipline  XIV  E  9  a  (13). 

Philippines See  Articles  of  War  LXXIII  A  2. 

Under  fifty-ninth  article  of  war See  Articles  of  War  LIX  I  1. 

TITLE. 

Against  United  States See  Public  property  II  B  3  to  4. 

Attorney  General  approves See  Public  property  II  A  6  to  7. 

Balloon  found See  Public  property  I  A  6. 

Ca'ptured  property See  War  I  C  6  c  (3) . 

Joint See  Public  property  II  A  5. 

Occupied  property See  War  I  C  6  a  (2). 

Officers '  pay See  Pay  and  allowances  III  C  1  a  (1) 

(a)  [2]. 

Payment  for  abstract  of. See  Appropriations  XV. 

Public  movable  property See  War  I  D  1. 

Soldiers'  pay See  Pay  and  allowances  I  CI;  1  a  (1) 

(«)[2]. 
Submerged  land , See  Navigable  waters  II  to  III. 

TOLL. 

Navigable  waters See  Navigable  waters  I  A  1  a. 

TORTS  OF  GOVERNMENT  AGENTS. 

See  Militia  VI  B  2  n. 
United  States  not  responsible  for See  Claims  IV;  VII  B  2;  C  1. 

TRADEMARK. 

Can  not  include  flag See  Flag  II. 

TRANSFER  OF  OFFICERS. 

See  Office  III  C  to  D;  D  4. 


TRANSFER  OF  SOLDIERS — TREES.  1033 

TRANSFER  OF  SOLDIERS. 
VolurUeers  to  Regular  Army See  Volunteer  Army  III  B  1. 

TRANSPORT. 

See  Army  I  G  3  b  (2)  (a)  [3]  to  [41. 

Crew See  Civilian  employees  v  A;  XV  A. 

End  of  voyage See  Absence  I  B  1  i. 

Loss  of  mail  on See  Claims  XII  K. 

Quarantine  ins])ection  and  harbor  regulation.  See  Tax  III  K. 

Service  in  Philippine  Islands See  Retirement  II  A  4  b  (2). 

Summary  court See  Discipline  XVI  E  6. 

TRANSPORTATION. 

See  Army  I  G  3  b  (2)  (a)  to  (6). 

Appropriations  XX. 

Civilian  employees  IX  to  X. 

Allies See  Claims  VII  B  6. 

Automobile See  Militia  VI  B  2  f . 

Borrounng  from  allies See  War  I  C  6  d  (1 ). 

Deserter See  Desertion  V  D  3  to  E  6. 

Dock,  repair  of. See  Appropriations  LII. 

Insane  soldier See  Insanity  I  B  1. 

Militia See  Militia  VI  B  2  e;  VII  to  VIII. 

Mustered  out  volunteers See  Volunteer  Army  I V  B  4. 

Recruit See  Desertion  XXII  A. 

Retired  officer See  Retirement  I  N  4;  Q. 

Retired  soldier See  Retirement  II  B  7. 

Seizure See  War  I  C  6  b  (1)  (b). 

Soldiers See  Absence  I  C4  e  (1);  4  h. 

Soldiers'  Home  I  E. 
Under  fifty-ninth  article  of  war See  Article  op  War  LIX  G  1  a;  1  b. 

TRANSPORT  COMMANDER. 

Authority See  Command  V  B  1. 

Discipline See  Command  V  B  2  a;  b;  c;  V  B  3. 

Eligibility  for See  Command  V  B  4. 

Articles  of  War  CXXII  A. 
Summary  court See  Discipline  XVI  E  6. 

TRANSPORT  QUARTERMASTER. 

Eligibility  to  command See  Command  V  B  4. 

TRAVEL  ALLOWANCE. 

Discharge  without  honor See  Army  I  G  3  b  (2)  (a)  [3]  [a]. 

Forfeiture  of See  Pay  and  allowances  III  C  1  f ;    2  c 

tod. 

TREATY. 

China  and  United  States See  Army  V  A 

Cuba  and  United  States See  War  I  C  8  c  (1)  to  (2). 

Effect  on  military  government See  War  I  C  8  b. 

Peace,  ratification  ends  war See  War  I  F  2. 

Peace  rule  as  to  movable  property See  War  I  D  1. 

TREES, 
Title  to See  Public  property  II  F  to  G. 


1034  TKESPASS — UNIFORM  I  A  1. 

TRESPASS. 
Ejection  by  owner See  Navigable  waters  X  D  4. 

TROOPS. 
Right  to  salvage See  Claims  VI  D. 

TRUST. 

Debts  paid  by  bailee See  Private  debts  VIIT. 

Money See  Discipline  XII  B  3  e  (3). 

Property  held  in,  lost See  Public  property  I  F  2. 

Soldier's  pay See  Pay  and  allowances  I  C  1;  III  B  6. 

TWICE  IN  JEOPARDY. 

See  Articles  of  war  CI  I  A  to  I. 

See  Discipline  XII  B  1  a  (1)  (b). 

At  own  request See  Discipline  XIV  K  1. 

Previous  trial  null See  Discharge  XVI  G;  G  2. 

TYPEWRITING  MACHINES. 

IsstLe  to  militia See  Militia  XVI I  3. 

UNAUTHORIZED  FORCES. 

See  Militia  IV  to  V. 
UNCONDITIONAL  CONTRACT. 
Difficulty  in  performing See  Contracts  X  B. 

UNIFORM. 

I.  Protection  of  dignity. 

A.  Within  United  States  Jurisdiction. 

1,  Soldier  excluded  from  skating  rink Page  1034 

B.  Within  State  Jurisdiction. 

1.  If  laws  permit. 

a.  Prosecution  by  commanding  officer Page  1035 

2.  Right  of  ticket  holder. 

a.  Theater  ticket  defined. 

C.  Prosecution  for  Criminal  Impersonation  of  an  Officer. 

I  A  1 .  Held  that  the  exclusion  of  soldiers  from  a  skating  rink  in  a 
Territory  because  they  were  in  uniform  was  a  violation  of  the  act  of 
March  1,  1911  (36  Stat.  963),  for  the  protection  of  the  dignity  and 
honor  of  the  uniform  of  the  United  States.^     C.  18968,  Bee.  7,  1911. 

^  The  proprietor  was  tried  and  convicted  for  the  offense  in  the  United  States  District 
Court  of  the  Fourth  Judicial  District  of  the  Territory  of  Arizona  and  punished. 

The  indictment  in  this  case  reads  as  follows: 

*'Did  knowingly,  wrongfully,  willfully,  and  unlawfully  discriminate  against  one 
D.  K.  M — ,  jr.,  he,  the  said  D.  K.  M — ,  jr.,  then  and  there  lawfully  wearing  the' 
uniform  of  the  Army  of  the  United  States  of  America,  they,  the  said  defendants,  being 
then  and  there  the  proprietors  of  a  public  place  of  amusement,  to  wit,  a  skating  rink, 
by  then  and  there  refusing  to  permit  him,  the  said  D.  K.  M — ,  jr.,  to  skate  at  said 
skating  rink  because  of  said  umform  so  worn  as  aforesaid  by  said  D.  K.  M — ,  jr." 


UNIFORM — U.   S.   MILITARY  ACADEMY.  1085 

I  B  1  a.  The  proprietor  of  a  skating  rink  attempted  to  exclude 
soldiers  because  they  were  in  uniform.  Held  that  the  commanding 
oihcer  pursued  the  proper  course  in  instituting  a  prosecution  against 
the  proprietor  for  a  violation  of  the  laws  of  the  State.  C,  18958, 
Jan.  23,  1907, 

I  B  2.  Held  that  the  rights  of  persons  to  purchase  tickets  to  a 
place  of  amusement  or  the  rights  of  ticket  holders  to  enter  a  place  of 
amusement  for  wloich  they  hold  tickets  is  one  which  turns  entirely 
on  the  laws  of  the  various  States.     C.  18958,  Nov.  28,  1906. 

I  B  2  a.  A  theater  ticket  is  a  license  which  may  be  revoked  by  the 
licensor,  before  it  has  been  tendered  at  the  door  of  the  theater.^ 
Held,  Jiowever,  that  the  purchaser  of  a  particular  seat  has  more  than 
a  license  his  right  of  entrance  being  in  the  nature  of  a  lease,^  and  his 
right  is  affected  in  no  way  by  the  fact  that  he  may  be  a  soldier  in 
uniform.     C.  18958,  Dec.  14,  1905. 

I  C.  Held  that  when  it  appears  that  any  person  with  intent  to 
defraud  either  the  United  States  or  any  person  falsely  assumes^  or 
pretends  to  be  an  officer  or  employee,  by  the  wearing  of  a  uniform  or 
otherwise,  the  case  should  be  referred  to  the  Department  of  Justice 
for  prosecution  under  the  act  of  April  18,  1884  (23  Stat.  11).  C. 
14779,  June  26,  1906,  Aug.  28,  1906,  Oct.  13,  1906,  Dec.  23,  1907, 
Feb.  4,  1908,  Apr.  29, 1908,  May  2,  1908,  and  Aug.  H,  1909. 

CROSS    REFERENCE. 

Campaign  badges,  part  of See  Insignia  of  Merit  III  B  1. 

Militia  XIII  B. 

Furlough See  Absence  I  C  4  c. 

Militia See  Militia  XIII  to  XIV;  XVI  F. 

Offenses  while  in See  articles  of  War  LXII  C  5  a;  LXII 

C16. 

Possession  of  by  civilian See  Command  V  A  3  e. 

President  prescribes See  Pay  and  Allowances  II  A  3  a  (4)  (d) 

[1]  [«]. 

Retired  officer See  Retirement  I  F. 

Wearing  of  unauthorized  badges  on See  Insignia  of  merit  II  A  2  a;  b. 

UNION  LABOR. 

Competition  with See  Army  bands  I  A  5, 

TJ.  S.  COMMISSIONER. 

Can  not  discharge  soldier See  Discharge  XVI  D  1. 

Turning  offenders  over  to See  Command  V  A  3  c  (1). 

IT.  S.  MILITARY  ACADEMY. 

See  Army  I  D  to  E. 
Authority  of  superintendent See  Command  V  A  3  d  (1). 

1  See  McCrea  v.  Marsh  (78  Mass.,  211). 

2  See  Drew  v.  Peer  (93  Pa.,  234). 

^  See  U.  S.  1?.  Ballard  (118  Fed.  Rep.,  757).  Also  an  impostor  who  by  impersonation 
of  an  officer  through  wearing  a  uniform  was  convicted  in  the  western  district  of  Penn- 
sylvania and  sentenced  to  two  years  in  the  penitentiary.  See  C.  14779,  Oct.  27,  1909, 
Judge  Advocate  General's  office. 


1036  UNLIQUIDATED  DAMAGES — VOLUNTARY   ARMY:   SYNOPSIS. 

UNLIQUIDATED  DAMAGES. 

Claim  for See  Claims  II. 

USELESS  PAPERS. 

Destmction  of. See  Official  papers  I  C  1  a. 

VACATION  OF  OFFICE. 

Active  list See  Office  IV  to  V. 

Retired  list See  Retirement  I  G  2  f . 

Volunteers See  Office  V  A  7. 

VAJtlANCE. 

Acceptance  and  bid See  Contracts  VI  M. 

Advertisement  and  bid See  Contracts  VI  L. 

Charge  and  copy See  Discipline  V  D  4. 

Charge  and  evidence See  Discipline  XIV  E  4  c. 

Charge  and  sentence See  Discipline  XII  B  3  c ;  XIV  E  9  a  (3) 

Contract  and  requirements See  Contracts  X  A. 

VESSEL. 

Foreign  built See  Contracts  XX  C  2. 

Wreck See  Claims  II. 

VESTING  OF  OFFICE. 

See  Office  III  A  6  to  7;  B3to4;  V  A  5  to  6. 

Detailed  staff. See  Office  III  D  1  to  2. 

Volunteers See  Office  V  A  5  to  6. 

Volunteer  Army  II  F  1  a  (1). 

VESTING  OF  RIGHT  OF  WAY. 

See  Public  property  VI  A. 

VESTING  OF  TITLE. 

See  Public  property  II  A  6  e. 

VETERINARIAN. 

Appointment See  Office  III  E  1. 

Eligibility  for  gratuity See  Gratuity  I  B  3  b. 

Leave See  Absence  I  B  1  g  (2). 

Militia See  Militia  X  E. 

VOLUNTARY  SERVICE. 

See  Contracts  XL. 
VOLUNTEER  ARMY. 

I.  DEFINED  AND  DESCRIBED Page  10S8 

A.  Usual  Meaning — Force  Raised  Independent  op  States...  Page  1039 

B.  Not  a  Part  of  the  Militia Page  1040 

C.  Officers  are  Officers  of  United  States. 

D.  Soldiers  are  Enlisted  into  Service  of  United  States. 
n.  MUSTER  IN. 

A.  Previous  to  Civil  War, 

1.  Before  muster  in  under  exclusive  control  of  governor. 

2.  Muster  for  pay  not  a  muster  in Page  1041 


VOLUNTARY  ARMY:  SYNOPSIS.  1037 

n.  MUSTER  IN— Continued. 

B.  During  Civil  War. 

1.  Enlisted  men. 

a.  Mustering  recruits  not  a  muster  in. 

b.  Enrollment  not  a  muster  in. 

c.  Muster  in  without  signing  enlistment  papers. 

d.  Constructive  muster. 

(1)  Enrollment  and  acceptance  of  service. 

e.  Consolidation  of  regiments Page  1042 

i.  Drafted  men. 

(1)  Muster  in  not  required. 

2.  Militia. 

a.  Muster  in  necessary  to  entry  in  the  United  States  service. 
(1)  Constructive. 

C.  Spanish  War  Volunteers. 

1.  Date  of  muster  in  determines  date  of  entering  the  service. 

2.  United  States  Volunteers  not  mustered  in,  but  enlisted  directly  in 

6'jrvice  of  United  States. 

D.  MusTBR-iN  Rolls. 

1.  Formal  muster-in  roll  is  ofl&cial  record Page  1043 

E.  Irrevocable  Unless  Tainted  with  Fraud. 

F.  Remuster. 

1.  Not  allowed  for  following  reasons. 

a.  Man  never  mustered  in. 

(1)  Even  though  commissioned. 

(2)  State  recruiting  officer. 

b.  Organization  never  existed. 

(1)  Seventeenth  New  Hampshire  Volunteers. 

(2)  Pierrepont  Rifles. 

(3)  Quartermaster  Volunteers,  1864. 

c.  Office  never  existed Page  1044 

m.  ORGANIZATION. 

A.  Engineer  Brigade. 

1.  May  have  three  regular  officers,  two  engineers,  and  one  other. 

B.  Enlisted  Force. 

1.  May  transfer  to  Regular  Army. 

2.  Cooks  may  be  colored. 
IV.  MUSTER  OUT. 

A.  Authority  to  Muster  Out. 

1.  War  Department  order  has  force  of  law. 

B.  Is  Termination  op  Military  Service 

1.  Of  an  organization  as  such. 

2.  Of  an  officer Page  1045 

3.  Of  an  enlisted  man. 

4.  Even  if  organization  not  disbanded  until  later. 

5.  No  discharge  certificate  required. 

C.  Retention  in  Service  After  Organization  Mustered  Out. 

*  1.  Authority  to  muster  out  can  retain. 

a.  Retained  if  military  control  exercised  over  him  by  competent 

authority. 

(1)  As  long  as  under  such  control. 

(2)  Competent  authority  defined. 

(a)  Under  General  Order  108,  1863. 

(b)  Under  General  Order  13,  1899. .  Page  1046 

b.  Certain  classes  not  retained,  viz,  deserters,  absentees,  absent 

sick,  etc. 

c.  Proper  to  retain  men  for  trial. 


1038  VOLUNTEER   ARMY   I. 

IV.  MUSTER  OUT— Continued. 

D.  Date  of  Muster  Out. 

1.  When  not  retained  in  service  after  muster  out  of  organization. 

a.  True  date  is  actual  date  of  muster  out. 

(1)  Regardless  of  date  fixed  in  advance  or  entered  in  dis- 

charge certificate  or  date  of  payment. 

(2)  Date  fixed  in  advance. 

(a)  Executively. 
(6)  Legislatively. 

[1]  Act  provides  * '  that  volunteer  force  continue 
in  service  not  later  than  July  1,  1901,"  is 

mandatory Page  1047 

[2]  Act  provides  ''that  bands  shall  be  mustered 
out  within  thirty  days  after  passage  of  the 
act,"  is  directory. 

(3)  Term  of  service  expires  before  organization  mustered 

out — notice  fixes  date  of  muster  out. 

(4)  Absentees. 

(a)  General  rule — same  date  as  date  of  muster  out 

of  organization. 
(6)  Without  leave, 
(c)  Prisoners  of  war. 

(5)  Men  not  subject  to  muster  out  as  already  out  of  service. 

(a)  Officer  because  ofl&ce  abolished. 

(6)  Enlisted  man  dropped  as  a  deserter. . .  Page  1048 

2.  When  retained  in  service  a,fter  muster  out. 

a.  Date  is  date  of  notice. 

(1)  Officer  ordered  home  for  discharge. 

(2)  Ordered  to  report  to  mustering  officer  for  discharge. 

(3)  Rule — if  after    being    retained  he  withdraws  himself 

from  service. 

3.  Date  can  not  be  changed. 

a.  Muster  out  can  not  be  nunc  pro  tunc. 

b.  Even  if  officer  was  retained  for  trial Page  1049 

c.  The  record  of  muster  out  can  not  be  changed. 

E.  Rank  at  Muster  Out. 

F.  If  Legal,  Irrevocable. 

G.  If  Illegal,  Revocable. 

1.  Secured  by  fraud. 

a.  Government  may  ignore  or  revoke  muster  out. 
H.  Records  of  Organizations. 

1.  Deposited  in  War  Department. 

2.  Finding  of  board  as  to  service  of  officer  being  "honest  and  faithful" 

at  discharge Page  1050 

I.  The  term  ''Volunteer  Army"  (as  comprehensively  used)  means 
that  temporary  military  organization  or  body  of  men  which  the 
Government  usually  employs  and  maintains  in  the  military  service 
in  time  of  war  or  other  public  danger.  It  is  made  up  of  (1)  persons 
who  voluntarily  make  their  engagements  directly  with  the  United 
States  to  serve;  (2)  persons  who  are  conscripted  directly  by  the 
United  States  and  forced  to  serve;  (3)  persons  who  voluntarily 
engage  with  a  State  to  serve  in  a  State  militia  organization,  and  are 
(together  with  that  organization)   called  into   the  United  State? 


VOLUNTEER  ARMY   I   A.  1039 

service  as  State  militia  b}^  the  President;  (4)  persons  who  are  drafted 
by  a  State  and  forced  into  a  State  militia  organization,  and  are 
(together  with  that  organization)  called  into  the  United  States 
service  as  State  militia  by  the  President.  Those  who  make  volunteer 
engagements  directly  with  the  United  States  to  serve,  and  those  who 
are  conscripted  directly  by  the  United  States  and  forced  to  serve, 
constitute  organizations  which  (as  well  as  the  Regular  Army)  are 
called  into  existence  by  Congress  under  its  constitutional  power,  ' '  to 
raise  and  support  armies."  The  State  organizations  are  made  a  part 
of  the  Army  of  the  United  States  under  authority  of  a  different  pro- 
vision of  the  Constitution,  which  provides  for '  'calling  forth  the  militia 
to  execute  the  laws  of  the  Union,  suppress  insurrection,  and  repel 
invasion."  These  organizations  are  usually  formed  (either  oy 
volunteer  engagement  on  the  part  of  the  men  or  by  conscription  bv 
the  State  authorities)  to  serve  the  State  but  the  President  can  call 
them  from  the  service  of  the  State  into  the  service  of  the  United 
States.  And  sometimes  the  State  organizations  are  formed  (either 
by  volunteer  engagement  on  the  part  of  the  men  or  by  conscription 
by  the  State  authorities)  with  the  purpose  in  view  of  their  being 
transferred  to  the  service  of  the  United  States  (under  the  call  of  the 
President)  as  soon  as  the  organizations  are  formed.  But  under  all  of 
these  circumstances  these  militia  organizations  retain  their  character 
of  State  militia,  and  yet  are  at  the  same  time  (while  in  the  active 
service  of  the  United  States  under  a  call  of  the  President)  a  part  of 
the  Army  of  the  United  States,  and  for  general  purposes,  are  con- 
sidered as  belonging  to  that  branch  of  the  United  States  Army  known 
as  the ''Volunteer  Army,"^  and  this,  notwithstanding  the  men  may 
have  been  conscripted  and  forced  into  the  State  militia  organization 
by  the  State  (to  serve  the  State  or  to  be  transferred  into  the  service 
ot  the  United  States),  and  then  called  into  the  service  of  the  United 
States  against  their  will  and  under  their  protest.  After  State  militia- 
men, caUed  into  the  United  States  service  by  the  President,  once  get 
iato  that  service,  no  distiaction  is  made  between  the  two  classes  on 
account  of  the  manner  ia  which  the  State  got  them  uito  its  organiza- 
tion— whether  by  volunteer  engagement  or  by  conscription.  All  of 
them  are  designated  as  militia  called  into  the  service  of  the  United 
States.     C.  1301,  May,  1895;  2U06,  Apr.  19,  1907. 

1  A.  The  term  "volunteers"  is,  however,  usually  applied  to  soldiers 
of  a  temporary  United  States  Army — an  army  raised  and  organized 
and  supported  and  maintained  for  a  limited  period  by  the  United 
States  mdependently  of  any  St  ate. ^  This  kiad  of  an  army  the  Presi- 
dent can  not  raise  and  maintain  at  any  time  without  express  authority 
of  Congress.  He  has  a  general  authority  given  him  hy^  Congress  to 
call  the  militia  of  the  States  into  the  United  States  service  whenever 
it  becomes  necessary  for  the  purposes  mentioned  in  the  statute.  But 
he  has  not  such  an  authority  to  engage  or  employ  what  are  usually 
called  "Volunteers."  It  follows,  therefore,  that  evidences  that  they 
were  "called  into  service"  by  the  President  are  not  so  important  in 

^  Compare  the  provisions  relating  to  organization  of  the  "Volunteer  Army,"  in  the 
act  of  Apr.  22,  1898,  and  see  V  Comp.  Dec,  25. 

2  For  mstances  of  such  "Volunteers,"  see  act  of  May  11,  1898,  to  provide  for  a 
volunteer  brigade  of  engineers,  and  an  additional  force  of  ten  thousand  men  specially 
accustomed  to  tropical  climates;  also  sec.  12  of  the  act  of  Mar.  2,  1899,  for  increasing 
the  efficiency  of  the  Army  and  for  other  purposes. 


1040  VOLUNTEER  ARMY  I  B. 

the  case  of  Volunteers  as  they  are  in  the  case  of  militia.  If  it  be 
found  that  Volunteers  actually  performed  service  at  a  time  when  an 
act  of  Congress  authorized  them  to  be  raised  and  maintained  and 
employed,  their  status  is  usually  determined  to  be  that  of  Volunteers. 
But  if  there  be  no  statute  which  authorized  them  to  be  raised  and 
mamtained  and  employed  at  that  time,  or  authorized  their  recognition 
since,  their  claim  to  a  status  as  Volunteers,  rather  than  militia  called 
into  the  service  of  the  United  States,  must  fall,  no  matter  how  often 
they  were  paid  as  such  or  how  much  or  how  long  they  have  been 
recognized  by  the  executive  branch  of  the  Government.  G.  1377, 
May,  1895;  17678,  Mar.  10,  1905. 

I  B.  The  Volunteer  force  during  the  Civil  War  was  not  apart  of  the 
militia,  but  of  the  Army  of  the  United  States.  Though  assunilated  to 
the  militia  in  some  respects,  as,  for  example,  in  the  mode  of  original 
appointment  of  regimental  and  company  officers,  it  was  as  distinct  in 
law  from  the  militia  as  was  the  so-called  ''Ke^ular''  contingent  of  the 
Army.i  Volunteer  officers,  once  mustered  into  the  service  of  the 
United  States,  and  while  they  remained  in  that  service,  did  not  differ 
substantially  from  Regular  officers  in  their  status,  rights,  or  other- 
wise. Their  tenure  of  office  was  indeed  briefer;  this,  however,  was 
not  a  material  legal  distinction,  since  the  term  of  Regular  officers  was 
also  in  some  cases  limited  by  statute  to  a  de&iite  period — as  the 
duration  of  the  existing  war.     R.  34,  4^9,  Sept.,  1873. 

I  C.  Held,  that  all  the  officers  of  the  Volunteer  Army  are  officers 
of  the  United  States.     C.  5075,  Sept.  28,  1898. 

I  D.  Held,  that,  under  the  law  relating  to  the  raising  of  a  Volunteer 
Army,  recruits  are  mustered  directly  into  the  service  of  the  United 
States.     C.  4631,  July  22,  1898.  _ 

II  A  1.  The  practice  of  receiving  volunteer  organizations  into  the 
mihtary  service  through  the  operation  of  ''muster  in"  was  well  estab- 
lished at  the  outbreak  of  hostihties  in  1861.  Volunteer  forces  had 
been  employed  in  Indian  hostilities  upon  several  occasions  prior  to 
1846,  and  a  number  of  volunteer  regiments,  raised  and  tendered  by 
the  States,  were  received  into  the  mihtary  service  during  the  War 
with  Mexico.  Held  that  no  regiment,  company,  or  other  organiza- 
tion of  Volunteers  could,  under  the  law  and  regulations  which  con- 
trolled muster  in,  be  regarded  as  having  been  ''accepted"  or  received 
into  the  military  service  of  the  United  States  until  it  had  been  form- 
ally mustered  into  such  service  by  a  commissioned  officer  of  the  Army, 
duly  authorized  thereto  by  the  Secretary  of  War.  Held,  further,  that 
previous  to  such  muster  in  such  persons  as  had  enrolled  themselves, 
or  otherwise  indicated  their  intention  to  enter  the  volunteer  service 
continued  subject  to  the  exclusive  jurisdiction  and  control  of  the 
governors  of  their  respective  States.  By  undergoing  the  process 
of  "muster  in"  such  organizations  of  Volunteers  were  "accepted" 
into  the  military  service  of  the  United  States  and  passed  out  of  State 
control  and  into  the  exclusive  control  and  jurisdiction  of  the  United 
States  as  part  of  its  volunteer  forces.  Over  regiments  and  other 
commands,  while  in  process  of  recruitment  and  organization,  the 

■  ^  As  illustrating  the  distinction  made  in  sec.  8,  Art.  I,  of  the  Constitution,  between 
the  Army  and  militia,  and  indicating  the  status  of  the  Volunteers,  during  the  Civil 
War,  as  a  part  of  the  former,  see  Kerr  v.  Jones,  19  Ind.,  351;  Wantlan  v.  White,  id., 
471;  In  the  matter  of  Kimball,  9  Law  Rep.,  503;  Burroughs  v.  Peyton,  16  Grat., 
483,  485. 


VOLUNTEER  ARMY  II  A  2.  1041 

jurisdiction  of  the  several  States  was  plenary,  but  it  ceased  to  be 
exercised,  save  as  to  the  appointment  of  commissioned  officers  to 
vacancies  in  completed  organizations,  from  the  instant  of  their  muster 
into  the  military  service  of  the  United  States.  C.  25831,  Nov,  22, 
1909. 

II  A  2.  In  1846,  after  Ohio  had  furnished  its  quota  of  Volunteers 
and  they  had  been  accepted,  certain  other  organizations  called  '^Camp 
Wasliington  Volunteers"  assembled  near  Cincinnati.  Their  services 
were  not  requested  or  required.  Congress  on  August  8,  1846,  by  a 
joint  resolution  directed  the  Secretary  of  War  'Ho  cause  to  be  paid 
*  *  *  to  the  companies  of  Ohio  Volunteers  assembled  at  Camp 
Washington  near  Cincinnati,  and  who  claim  to  have  been  mustered 
into  service,  one  day's  pay  and  allowances  for  every  day  detained  in 
service,  and  the  usual  travehng  allowance,  and  no  more."  The  Adju- 
tant General  detailed  an  officer  to  pay  the  Camp  Washington  Volun- 
teers and  incorrectly  instructed  him  to  muster  tnem  as  in  the  service, 
as  he  beheved  that  an  assemblage  of  civilian  volunteers  could  not  be 
paid.  Tliis  detailed  officer  did  actually  muster  the  Camp  Washington 
Volunteers  for  pay  and  paid  them.  Held  that  although  they  were 
listed  on  a  muster  roll  by  this  officer  in  obedience  to  the  order  of  the 
Adjutant  General  they  were  not  mustered  into  the  service  of  the 
United  States,  as  there  was  no  authority  for  their  muster  into  the 
service  of  the  United  States.  Held,  further,  that  the  Adjutant  Gen- 
eral incorrectly  interpreted  the  law  in  directing  that  they  should  be 
mustered  for  pay,  as  the  law  merely  intended  their  payment  without 
muster  into  tne  service.  Held,  further,  that  the  (Tamp  Washington 
Volunteers  were  not  mustered  into  the  service  by  the  act  of  the 
detailed  officer  in  mustering  them  for  pay.     C.  2351,  June  13,  1895. 

II  B  1  a.  Held  that  the  mustering  of  recruits  by  a  State  official 
during  the  Civil  War  is  an  act  which  has  no  connection  with  the  mus- 
ter in  of  a  volunteer  organization  when  presented  to  a  duly  authorized 
mustering  ofiicer  of  the  War  Department  with  a  view  to  its  accept- 
ance as  an  organized  part  of  the  volunteer  forces  of  the  United  States. 
C.  25831,  Nov.  22,  1909. 

II  B  1  b.  A  volunteer  soldier's  entry  into  service  depends  upon  two 
acts  of  volition,  one  being  the  offer  to  enter  the  service  and  the  other 
the  accepting  and  carrying  out  of  the  offer.  Held  that  the  enroll- 
ment for  service  is  only  a  proposal  to  enter  such  service  ^  a  declaration 
or  readiness  to  do  so,  and  before  a  man  who  makes  such  declaration 
can  become  a  soldier  in  the  military  service  of  the  United  States  it  is 
necessary  that  his  proposal  be  accepted  by  a  duly  authorized  repre- 
sentative of  the  United  States.  This  acceptance  is  manifested  by 
muster  in.     P.  54,  313,  July  9,  1892;  C.  7050,  Oct.  6,  1900. 

II  B  1  c.  A  man  who  has  been  duly  mustered  into  the  service 
of  the  United  States  and  has  received  the  pay  and  performed  the 
duties  of  a  soldier  should  be  treated  as  duly  enlisted,  though  he  may 
not  have  signed  enlistment  articles.     R.  3,  84,  June  24,  1863. 

II  B  1  d  (1).  A  muster  in  is  not  necessarily  formal.  In  some  cases, 
indeed,  there  was  no  formal  muster  in,  but  Tield  that  placing  a  man  on 
duty,  or  availing  of  his  services,  or  treating  him  as  duly  in  the  mili- 
tary service,  or  paying  him  as  a  soldier,  or  taking  up  his  name  upon 
the  roUs  and  accepting  his  services  as  a  soldier,  was  a  constructive 

1  See  23  Op.  Atty.  Gen.,  406. 
31106°— 12 66 


1042  VOLUNTEER  ARMY  II  B  1  e. 

muster  in.  P.  4I,  136,  June  3,  1890;  5J^,  313,  July  9,  1892;  C.  186, 
Aug.,  1894;  1067,  Apr.  25,  1895;  2293,  June  2,  1896;  2643,  Sept.  26, 
1896;  7050,  Oct.  6,  1900;  9159,  Oct.,  1900;  20237,  Aug.  15,  1906. 

II  B  1  e.  Where  a  regiment  is  consolidated  with  another, 
under  the  name  of  the  latter,  no  remuster  or  change  of  any  kind 
taking  place  in  the  status  of  the  enlisted  men  of  either  regiment,  the 
men  of  each  organization  become  members  of  the  new  regiment,  not 
by  virtue  of  any  consent  on  their  part,  but  because  of  the  conditions 
of  their  original  enlistment  and  muster  into  the  United  States  serv- 
ice.    R.  5,  595,  Dec.  31,  1863. 

II  B  1  f  (IX  A  muster  in  is  not  necessary  in  the  case  of  a  drafted 
man  or  a  substitute.  Held  that  examining  him  and  holding  him  to 
service  and  actually  putting  him  on  duty  takes  the  place  of  the 
''muster  in."  P.  45,  72,  Jan.  13,  1891;  C.  1570,  July,  1895;  2033, 
Aug.  4, 1896. 

il  B  2  a.  In  1862  Gen.  Morgan  recommended  to  the  Secretary 
of  War  that  the  ''Kentucky  Home  Guards"  be  called  into  immediate 
service  to  the  number  of  5,000  men.  The  Secretary  of  War  acknowl- 
edged receipt,  but  did  not  call  this  militia  forth.  The  Kentucky 
Home  Guards,  however,  began  service  May  7,  1862,  under  the  com- 
mand of  Gen.  Morgan,  and  continued  such  service  until  July  7,  1862. 
They  were  not  mustered  in  by  a  United  States  mustering  officer. 
They  were  later  paid  for  their  services  under  joint  resolution  of  Feb- 
ruary 8,  1867.  Held  that  they  were  not  mustered  into  the  service  of 
the  United  States.^     C.  783,  Apr.  24,  1895. 

II  B  2  a  (1).  Certain  organizations  of  Alabama  Territory  militia 
in  1817  and  1818  served  in  the  Seminole  War  without  being  formally 
mustered  in.  They  were,  however,  mustered  out  of  the  service  of 
the  United  States  by  officers  of  the  Regular  Army  and  paid  from 
naoney  appropriated  in  the  Army  appropriation  acts,  and  were  recog- 
nized fully  at  the  time  by  both  the  Territorial  and  National  authori- 
ties as  bemg  in  the  military  service  of  the  United  States.  Held  that 
such  recognition  should  at  this  time  be  deemed  binding  upon  the 
United  States.     C.  232,  Mar.,  1895. 

II  C  1.  State  volunteers  were  enrolled  in  1898,  during  the  war 
with  Spain,  in  many  instances  preceding  the  dates  of  muster  in. 
Held  that  the  date  of  muster  in  and  not  that  of  enrollment  was  the 
date  of  entry  into  the  service  of  the  United  States.  Held  further 
that  the  remedial  legislation  by  Congress  for  the  purpose  of  paying 
such  Volunteers  the  same  pay  as  would  have  been  given  to  officers 
and  soldiers  of  the  Regular  Army  was  a  specific  recognition  by  Con- 
gress of  the  fact  that  they  were  not  officers  and  soldiers  during  that 
period,  since  if  they  had  been,  no  remedial  legislation  would  have  been 
needed  in  their  behalf.  C.  7050,  Oct.  6,  1900;^  9159,  Oct.  20,  1900; 
25831,  Nov.  22,  1909. 

II.  C  2.  Held  that  under  the  laws  relating  to  the  raising  of  United 
States  Volunteers  during  the  Spanish  War,  recruits  are  enhsted  directly 
into  the  service  of  the  United  States  and  become  soldiers  in  such  service 

1  Militia  in  which  the  officers  were  appointed  and  commissioned  in  accordance  with 
the  laws  of  their  States  were  called  out  under  laws  enacted  by  Congress,  and  such 
troops  were  mustered  in  by  regiments  and  in  some  instances  by  brigades.  See  R.  &  P. 
456829;  see  also  21  id.,  Op.  Atty.  Gen.,  130,  24,  651. 

2  This  opinion  was  approved  by  the  Secretary  of  War  and  published  in  circular 
form,  dated  War  Department,  Mar.  23,  1901.     See  23  Op.  Atty.  Gen.,  406. 


VOLUNTEER   ARMY   II  D  1.  1043 

on  the  completion  of  enlistment  by  taking  the  oath  of  allegiance. 
a  4631,  July  22,1898. 

II  D  1 .  The  record  of  a  formal  muster  in  is  an  official  record,  duly 
made  by  the  proper  officers  pursuant  to  law,  of  an  official  act  per- 
formed under  the  law.  It  is  therefore,  in  the  absence  of  fraud,  con- 
clusive evidence  of  the  facts  recorded,  and  no  other  eviclence  is  ad- 
missible to  show  a  different  state  of  facts.  Great  uncertainty  would 
ensue  could  such  records  be  set  aside  by  parol  or  other  evidence. 
P.  60, 394,  July,  1893;  C.  10061,  Mar.  26, 1901;  17810,  Apr.  19, 1906; 
20237,  Aug.  I4,  1906. 

II  E.  A  muster  in  is  the  final  act  which  closes  a  contract  between  a 
person  and  the  Government  and  fixes  certain  relations  between  them. 
Ileld  that  a  legal  muster  in  is  irrevocable.  Held  further  that  a  muster 
in  may  be  rescinded  during  the  continuance  of  the  contract  if  tainted 
with  fraud.     P.  44,  60,  Nov.  19,  1890. 

IIFla(l).  A  private  of  the  One  hundred  and  twenty-sixth  New 
York  Infantry  Volunteers  was  commissioned  a  second  lieutenant  of 
that  regiment  by  the  governor  of  New  York  under  the  act  of  July  22, 
1861  (12  Stat.  261).  The  mustering  officer  refused  to  muster  in  this 
appointee  as  a  second  lieutenant.  Held  that  the  appointee  did  not 
become  vested  with  the  office  of  second  lieutenant.  Held  further  that 
as  he  did  not  at  any  time  act  as  a  lieutenant  under  a  valid  commission 
he  is  not  entitled  to  a  remuster  under  the  act  of  February  24,  1897  (29 
Stat.  593).^     a  14587,  Jan.  12,  1904;  16516,  July  5,  1904. 

IIF  1  a  (2).  A  man  holding  a  recruiting  commission  under  the 
appointment  of  the  governor  of  a  State,  but  not  formally  mustered 
into  the  service  of  the  United  States,  is  not,  in  the  absence  of  a  special 
provision  by  Congress  including  him  as  a  part  of  the  Volunteer  Army, 
m  the  mihtary  service  of  the  United  States.     C.  20237,  Aug.  15, 1906. 

IIFlb(l).  A  man  claimed  recognition  as  colonel  in  the  Seven- 
teenth New  Hampshire  Volunteers.  Held  that  as  there  was  never  a 
completion  of  the  organization  no  such  United  States  office  ever 
existed  as  that  of  colonel  in  that  regiment.  Held,  therefore,  that  the 
United  States  could  not  have  accepted  into  its  service  a  man  as  colonel 
of  such  regiment.     P.  4O,  288,  Apr.  22,  1890. 

II  F  1  b  (2) .  A  man  claimed  recognition  as  captain  in  the  Pierre- 
pont  Rifles.  Held  that  as  no  such  such  organization  was  ever  law- 
fully mustered  into  the  mihtary  service  of  the  United  States,  no  such 
office  as  captain  in  that  organization  ever  existed  in  the  mihtary  serv- 
ice of  the  United  States,  and  that  therefore  the  claimant  could  not  be 
recognized  as  an  officer  holding  such  office.     C.  25831,  Nov.  22,  1909. 

IIF  1  b  (3).  The  so-called  Quartermaster's  Volunteers  of  1864, 
composed  of  clerks  and  other  civilian  employees  of  the  War  Depart- 
ment, were  not  authorized  by  statute  to  be  formed  into  a  volunteer 

^  The  Attorney  General  has  held  that  "to  give  a  citizen  the  status  of  the  United 
States  soldier  in  the  Volunteer  Army,  his  consent  and  that  of  the  United  States  are  both 
necessary,  and  the  formality  which  marks  this  agreement  of  the  two  parties  to  the  con- 
tract and  the  commencement  of  the  obligations  thereunder  is  the  muster  in. "  (23  Op. 
Atty .  Gen . ,  408 . )  He  has  also  held  that  "it  is  evident  that  those  who  are  physically  and 
mentally  incapacitated  for  military  duty  should  never  be  received  into  the  military 
service  of  the  tlnited  States,  and  the  question  of  fitness  und  unfitness  of  a  militiaman 
reporting  under  a  call,  can  only  be  determined  at  the  inspection  which  is  required  to 
be  made  as  preliminarjr  to  muster  in;  the  purpose  of  the  law  being  to  prevent  the 
acceptance  into  the  military  service  of  the  United  States  of  officers  and  men  unfit  for 
that  service . "    (24  id . ,  661 . ) 


1044  VOLUNTEER  ARMY  II  F  1  C. 

organization,  nor  were  they  authorized  to  be  paid;  nor  were  they 
mustered  into  the  military  service,  nor  mustered  out  or  discharged 
from  it.  They  were  merely  a  civilian  body  organized  with  a  view  to 
service  during  the  temporary  emergency  that  might  arise  through  the 
invasion  of  Maryland  by  the  enemy,  ueld  that  the  officers  of  such  a 
force  did  not  hold  office  in  the  military  estabhshment.  P.  32,  /^2, 
Apr.  22,  1889;  38,  435,^  Feb.  12,  1890. 

II  F  1  c.  A  man  claimed  that  he  was  a  volunteer  aid-de-camp  in 
the  Civil  War,  and  asked  that  his  name  be  placed  on  the  muster  rolls 
and  a  discharge  issued  to  him.  Held  that  since  there  was  no  such 
office  or  position  known  to  the  law  at  the  time  as  volunteer  aid-de- 
camp, and  since  he  had  made  no  engagement  with  the  Government 
and  was  not  mustered  into  the  service  in  any  capacity  or  borne  on 
United  States  muster  rolls  or  reports  as  being  attached  to  such  service, 
he  could  not  be  regarded  as  having  been  the  occupant  of  such  a  place 
or  office.     P.  37,  462,  Jan.  9, 1890. 

III  A  1.  Section  13  of  the  act  of  April  22, 1898  (30  Stat.  363),  pro- 
vided that  ''Not  more  than  one  officer  of  the  Regular  Army  snail 
hold  a  commission  in  one  regiment  of  the  Volunteer  Army  at  the 
same  time."  The  act  of  May  11,  1898  (30  Stat.  405),  which  provided 
for  the  organization  of  a  volunteer  brigade  of  engineers  in  addition  to 
the  Volunteer  Army  authorized  in  the  act  of  April  22,  1898,  provided 
that  "Not  to  exceed  three  officers  of  the  Corps  of  Engineers  of  the 
Regular  Army  may  hold  volunteer  commissions  in  any  one  regiment  of 
the  volunteer  brigade  of  engineers  at  the  same  time."  Held  that  under 
these  two  laws  two  officers  might  be  taken  from  the  Engineers  and 
one  from  another  branch  of  the  Regular  Army  for  appointment  in 
the  volunteer  brigade  of  engineers.     C.  4^71,  June  18,  1898. 

Ill  B  1.  Held  that  volunteer  soldiers  may  be  transferred  to  the 
Regular  Army  and  there  serve  the  unexpired  term.  C.  4245,  June  3j 
1898.  And,  under  the  act  of  March  1,  1887  (27  Stat.  435),  to  the 
Hospital  Corps.     C.  4122,  May  17, 1898. 

III  B  2.  Held  that  there  is  no  legislation  which  would  prevent  the 
enlistment  of  colored  cooks  in  white  regiments  of  volunteers,  and 
that  therefore  such  enlistment  would  be  legal.     C.  4'^i5j  Aug.  1,  1898. 

IV  A  1.  An  order  issued  by  the  War  Department  directing  the 
muster  out  of  volunteer  troops  must  be  regarded  as  promulgated  by 
authority,  since  it  can  be  issued  only  by  authority  of  the  Secretary  of 
War.  Held  that  such  order  is  a  regulation  with  reference  to  the 
administration  of  the  Army  which  the  President  has  the  constitu- 
tional authority  to  make,  and,  as  such,  it  has  the  force  of  law.^  R.  5, 
f.  319,  Nov.  19,  1863;  C.  6980  and  8962,  Sept,  1900. 

IV  B  1.  Paragraph  1  of  General  Orders,  No.  108,  Adjutant  General's 
Office,  paragraph  15  of  General  Orders,  No.  124,  of  1898,  and  paragraph 
2,  General  Orders,  No.  13,  Adjutant  General's  Office,  1899,  provided 
that  when  an  organization  is  mustered  out  the  whole  organization 
will  be  considered  to  have  been  mustered  out  except  certain  classes  of 
absentees.  Held  that  General  Orders,  No.  124,  of  1898  had  the  same 
effect  as  General  Orders,  No.  108,  of  1863,  viz,  to  discharge  all  absentees 
not  retained  in  service  by  competent  authority,  and  that  the  Regula- 
tions of  1899  accomplished  nothing  more  except  that  under  the  Regu- 
lations of  1899  the  retention  in  service  after  muster  out  of  an  organi- 

*  Published  in  War  Department  circular  of  Sept.  20,  1900. 


VOLUNTEER  ARMY  IV  B  2.  1045 

zation  must,  in  order  to  be  valid,  be  by  special  authority  of  the  War 
Department.  C.  8962,  Sept.  I4,  1900;'  6980,  Sept.,  1900;  IOI4I, 
Apr.  2,  1901;  13103,  Aug.  9,  1902. 

IV  B  2.  An  order  purported  to  dismiss  an  officer  who  has  been 
mustered  out  of  the  service.  Held  that  it  was  absolutely  void.  P. 
45,57,  Jan.  12,1891. 

IV  B  3.  The  muster  out  is  a  formal  discharge  from  the  Army, 
making  a  soldier  a  civilian  and  terminating  all  military  authority  and 
jurisdiction  over  him;  even  as  the  muster  in  converted  the  civilian 
mto  a  soldier,  so  the  muster  out  converts  the  soldier  into  a  civilian. 
P.  46,  237,  Mar.  30,  1891;  65,  105,  May  23,  1894;  C.  9596,  Jan.  2, 
1901, 10037,  Mar.  22, 1901;  10865,  July  15, 1901. 

IV  B  4.  The  United  States  may  have  as  a  matter  of  fairness  pro- 
vided for  the  transportation  to  their  homes  and  the  subsistence 
en  route  of  pei*sons  mustered  out  of  the  service.  Held  that  this  was 
not  because  they  were  soldiers,  but  because  they  had  been  soldiers. 
Held  further  that  if  it  had  been  intended  that  they  should  remain  in 
the  service  until  the  ''disbandment"  they  would  not  have  been  mus- 
tered out  until  then.     P.  51,  210,  Jan.  5,  1892. 

IV  B  5.  Held  that  a  discharge  certificate  is  not  necessary  to  effect 
a  muster  out,  as  the  muster  out  is  a  formal  discharge.  P.  65,  105, 
May  23,  1894;  O.  9556,  Jan.  2,  1901. 

IV  C.  Held  that  as  an  officer  in  a  regiment  of  Volunteers  is  not  an 
officer  of  the  regiment  merely,  but  an  officer  of  the  Volunteer  branch 
of  the  Army,  he  may  be  held  in  service  after  the  muster  out  of  his 
regiment.     C.  5075,  Sept.  28,  1898. 

IV  C  1.  General  Orders  108,  Adjutant  General's  Office,  1863,  pre- 
scribed that  whenever  Volunteer  troops  were  mustered  out  of  the 
service  the  entire  regiment  or  other  organization,  except  prisoners  of 
war,  would  be  considered  as  mustered  out  at  the  same  time  and  place, 
but  lield  that  neither  that  regulation  nor  similar  provisions  incor- 
porated in  General  Orders  124,  Adjutant  General's  Office,  1898,  and 
General  Orders  13,  Adjutant  General's  Office,  1898,  are  applicable  to 
officers  and  enlisted  men  specially  retained  in  service  after  the  muster 
out  of  the  organizations  to  which  they  belonged,  because  in  such  case 
the  exceptions  are  ordered  contemporaneously  by  the  same  authority 
that  made  the  rule.     C.  8962,  Sept.  I4,  1900.^ 

IV  C  1  a  (1).  As  a  general  rule  an  officer  or  enlisted  man  of  Volun- 
teers, who  was  not  actually  mustered  out  of  service  with  his  com- 
mand, must  be  considered  as  having  been  retained  in  the  military 
service  of  the  United  States,  notwithstanding  General  Orders  No.  108 
of  1863,  and  other  orders  and  circulars,  of  similar  import,  provided 
that  he  was  retained  in  service,  or  military  control  was  exercised  over 
him,  by  competent  authority.     C.  5075,  "Sept.  28,  1898. 

IV  C  1  a  (2).  An  officer  or  enlisted  man  so  retained  in  service,  or 
subjected  to  military  control,  must  be  considered  to  have  been  in 
service  so  long  as  he  was  actually  so  retained  or  subjected  to  control. 
C.  5075,  Sept.  28,  1898. 

IV  C  1  a  (2)  (a).  Under  General  Order  108,  Adjutant  General's 
Office,  1863,  all  men,  both  present  and  absent,  who  belonged  to  a 
certain  organization  were  mustered  out  on  the  date  of  the  muster 

^  Published  in  War  Department  circular  dated  Sept,  20,  1900. 

2  This  opinion  was  published  in  War  Department  circular  of  Sept.  20,  1900. 


1046  VOLUNTEER  ARMY  IV  C  1  a  (2)  (b). 

out  of  the  organization  to  which  they  belonged,  unless  they  were 
retained  in  service  by  competent  authority,  u.  8962,  Sept.  14,  1900. 
Held  that  a  '^competent  authonty^^  was  the  order  of  any  superior 
whom  it  was  the  duty  of  the  person  kept  in  the  service  to  respect  and 
obey  while  in  the  service,  and  who  would  have  had  authority  to  issue 
such  order  to,  or  exercise  control  over,  the  subordinate  officer  or 
enlisted  man,  while  the  latter  was  in  the  service.     C.  5075.  Sept.,  1898. 

IV  CI  a  (2)  (6).  General  Order  13,  Adjutant  General's  Office,  1899 
made  provision  for  the  execution  of  the  act  of  January  12,  1899 
(30  Stat.  784) ,  which  provided  that  the  discharge  of  officers  and 
enlisted  men  from  the  Volunteer  forces  of  the  United  States  should 
as  far  as  practicable,  take  effect  on  the  date  of  the  muster  out  of  the 
organization  to  which  they  belonged.  Held  that  under  this  regu- 
lation the  Secretary  of  War  had  authority  to  retain  in  service  officers 
and  enlisted  men.  C.  5075,  Sept.,  1898;  6621,  July  7,  1899;  7593,'- 
Jan.  29,  1900;  8962,  Sept.  I4,  1900;  6980,  Sept.  18,  1900. 

IV  C  1  b.  Held  that  officers  and  enlisted  men  who  were  retained 
for  the  service  or  convenience  of  the  Government,  or  by  reason  of  the 
refusal  or  neglect  of  superior  officers  to  cause  them  to  be  discharged 
were  not  mustered  out  at  date  of  muster  out  of  organization ;  but  that 
deserters  at  large  or  absentees  with  or  without  leave,  at  the  date  of 
muster  out  of  their  commands,  or  any  persons  who,  through  fault  or 
neglect  of  their  own,  failed  to  be  mustered  out  or  discharged  at  the 
proper  time,  or  those  who  were  permitted  to  remain  under  partial 
military  control  solely  for  their  own  comfort,  convenience,  or  safety, 
such  as  sick  or  wounded  men  undergoing  treatment  in  hospital  or 
elsewhere,  were  not  so  retained  in  the  service.     0.  5075,  Sept.  28, 1898. 

IV  C  1  c.  Held  that  it  was  proper  to  retain  in  the  service  officers  or 
.enlisted  men  of  the  Volunteer  forces  after  the  muster  out  of  their 
regiments  in  1899,  for  the  purpose  of  bringing  them  to  trial  by  court- 
martial  for  offenses  charged.     C.  5767,  Jan.  31,  1899. 

IV  D  1  a.  Held  that  the  true  date  of  muster  out  is  the  date  when 
the  organization  or  individual  was  actually  mustered  out.  R.  16, 
4O6,  July  22,  1865;  P.  U,  450,  Jan.,  1891;  46,  101,  223,  243,  Mar. 
and  Apr.,  1891;  51,  126,  Dec,  1891;  C.  2888,  Jan.,  1897;  6621,  July, 
1899;  7451,  Dec,  18  1899;  8722,  Aug.  3, 1890;  8962,  Sept.  I4, 1900.^ 

IV  D  1  a  (1).  When  it  is  clearly  shown  by  the  official  records  that 
a  Volunteer  organization  was  actually  mustered  out  of  the  military 
service  of  the  United  States  on  a  certain  date,  held  that  that  date 
should  be  accepted  as  the  true  date  of  the  muster  out,  regardless  of 
the  date  which  may  have  been  fixed  in  advance  for  the  muster  out,  or 
of  the  date  to  which  payment  was  made,  or  of  the  date  of  discharge 
entered  upon  the  discharge  certificates  that  may  have  been  given 
to  men  mustered  out  of  the  organization.  C.  74^51,  Dec  18,  1899; 
8722,  Aug.  3,  1900. 

IV  D  1  a  (2)  (a).  Certain  Volunteer  officers  who  were  absent  with 
leave  from  their  commands  were  ordered  by  the  President,  on  May 
6,  1865,  to  be  honorably  mustered  out  of  the  service,  to  date  *'the 
fifteenth  instant,"  and  to  apply  immediately  by  letter  for  their 
muster-out  and  discharge  certificates.  Held,  that  the  muster  out 
operated  in  that  case  on  the  15th  instant,  though  the  muster-out  and 

»  See  G.  0.  108,  A.  G.  0.,  1863;  G.  0.  13,  A.  G.  0.,  1898,  and  G.  0.  124,  A.  G.  O., 
1898,  for  muster  out  regulations. 
2  This  opinion  was  published  in  War  Department  circular  of  Sept.  20,  1900. 


VOLUNTEER  ARMY  IV  D  1  a  (2)  (6)  [l].  1047 

discharge  papere  may  not  have  reached  these  officers  until  after  that 
date.     C.  1636,  Oct,  1895;  1945,  Dec,  1895;  IOI4I,  Apr.  2,  1901. 

IV  D  1  a  (2)  (&)  [1].  Section  12  of  the  act  of  March  2,  1899  (30  Stat. 
980),  provided  that  ''such  increased  Regular  and  Volunteer  force 
shall  continue  in  service  only  during  the  necessity  therefor,  and  not 
later  than  July  1,  1901."  Held,  that  officers  and  enlisted  men  of  such 
force,  in  the  absence  of  remedial  legislation,  ceased  to  be  in  the  military 
service  on  the  30th  of  June,  1901.     C.  11860,  Jan.  6,  1902."^ 

IV  D  1  a  (2)  Q))  [2].  The  act  of  July  17,  1862  (12  Stat.  594),  pro- 
vided that  the  men  composing  regimental  bands  should  be  mustered 
out  of  the  service  within  30  days  after  the  passage  of  the  act.  Held, 
that  the  act  was  directory  only,  and  did  not  invalidate  service  con- 
tinued beyond  the  time  indicated  by  reason  of  the  failure  of  the 
proper  officer  to  muster  out  the  men  at  the  time  when  the  law  pro- 
vided that  it  should  be  done.     P.  52,  392,  Mar.  18,  1892. 

IV  D  1  a  (3).  A  Volunteer  soldier  was  absent  at  the  date  when  the 
expiration  of  his  term  of  service  arrived.  A  detachment  from  his 
organization,  whose  service  ended  on  the  same  date,  was  mustered 
out  on  that  date  on  the  detachment  roll.  Held,  that  the  absent 
soldier  was  not  mustered  out  as  of  that  date,  under  the  provisions  of 
General  Order  No.  108,  Adjutant  General's  Office,  1863,  but  was  mus- 
tered out  at  a  later  date  when  he  received  notice  of  his  discharge  in 
the  hospital,  where  he  was  being  treated  for  wounds.  C.  1297,  June 
19, 1895. 

IV  D  1  a  (4)  (a).  General  Orders  Nos.  108  of  1863, 124  of  1898,  and  13 
of  1899,  Adjutant  General's  Office,  fix  the  general  policy  that  Volun- 
teers who  are  absent  at  the  date  of  muster  out  of  their  organizations 
shall  be  held  to  have  been  mustered  out  at  the  date  of  muster  out 
of  the  organization  to  which  they  belonged.  C.  6980,  Sept.,  1900; 
8962,^  Sept.  I4,  1900;  IOI4I,  Apr.  2,  1901;  13103,  Aug.  9,  1902. 

IV  D  1  a  (4)  Q)).  A  Volunteer  soldier  was  absent  without  leave 
at  the  time  his  regiment  was  mustered  out  and  the  Volunteer  forces 
were  disbanded.  Held,  that  upon  the  muster  out  of  the  Volunteer 
forces  he  became  a  civilian,  and  that,  being  no  longer  in  the  service, 
he  could  not  later  be  discharged,  but  that  a  certificate  to  that  effect 
may  be  given  him  by  the  War  Department.^     C.  12464,  July  8,  1902. 

IV  D  1  a  (4)  (c).  Under  the  provisions  of  General  Orders,  No.  108, 
Adjutant  General's  Office,  1863,  soldiers  who  were  prisoners  of  war 
when  their  company  was  mustered  out  were  to  ''be  considered  as  in 
the  service  until  their  arrival  in  a  loyal  State,  with  an  allowance  of 
time  necessary  for  their  return  to  their  respective  places  of  enroll- 
ment." Held,  in  the  case  of  a  soldier  who  was  a  prisoner  of  war  at 
the  time  his  company  was  mustered  out  but  who,  after  release  from 
captivity,  was  furloughed  and  ordered  to  report  at  a  mHitary  post 
on  a  certain  date,  that  he  was  in  the  service  until  the  date  designated 
for  him  to  report  at  such  post.  Held  further  that  he  should  be  con- 
sidered to  have  been  mustered  out  on  that  designated  date.  P.  64, 
430,  Apr.  25, 1894. 

IV  D  1  a  (5)  {a).  A  person  held  the  office  of  supernumerary  second 
lieutenant  of  Company  G,  Eleventh  Kentucky  Cavaliy,  which  office 
was  abolished  by  the  act  of  March  3,  1863.     Held,  that  at  the  abolition 

^  Published  in  War  Department  circular  of  May  26,  1902. 
2  Published  in  War  Department  circular  of  Sept.  20,  1900. 
2  See  War  Department  circular  of  June  1,  1901. 


1048  VOLUNTEEB  ARMY  IVDla(5)(&). 

of  the  office  the  occupant  reverted  to  the  status  of  citizen  and  that 
no  muster  out  was  necessary.     P.  53,  4^2,  May  21,  1892. 

IV  D  1  a  (5)  (6).  Held,  that  volunteers  who  had  been  dropped 
from  the  rolls  as  deserters  preceding  the  muster  out  of  their  orgamza- 
tions  were  not  mustered  out  at  the  date  of  muster  out  of  their  organ- 
izations, but  were  separated  from  the  service  by  the  operation  of 
being  dropped  from  the  rolls.  C.  6980,  Sept.,  1900;  8962,^  Sept.  I4, 
1900;  10141,  Apr.  2,  1901;  13103,  Aug.  9,  1902. 

IV  D  2  a.  In  the  case  of  a  Volunteer  soldier  held  in  the  service, 
by  proper  authority,  after  the  muster  out  of  his  organization,  held, 
that  his  discharge  takes  effect  on  the  date  when  he  receives  notice 
that  he  has  been  discharged,  but  that  if  he  be  not  held  in  service  by 
proper  authority  his  discharge  takes  effect  on  the  date  of  the  muster 
out  of  the  organization  to  which  he  belongs.  C.  6980,  Sept.  18,  1900; 
8962,  Sept.  I4, 1900;  9556,  Jan.  2, 1901. 

IV  D  2  a  (1).  An  officer  who,  having  been  retained  in  service 
after  his  command  has  been  mustered  out,  was  ordered  by  The 
Adjutant  General,  or  by  other  competent  authority,  to  proceed  to 
his  home  and  report  by  letter  to  The  Adjutant  General  for  discharge, 
must  be  considered  to  have  been  in  service  until  he  received  the 
order  for  his  discharge,  or,  in  case  it  can  not  be  ascertained  when  he 
received  notice  of  his  discharge,  until  the  date  of  the  order  directing 
his  discharge,  provided  that  it  appears  that  upon  receiving  the  order 
to  go  to  his  home  and  report  he  obeyed  the  order  without  delay. 
C.  5075,  Sept.  28, 1898;  2940,  Feb.  12, 1897. 

IV  D  2  a  (2).  An  officer  or  enlisted  man  who  was  retained  in 
service  after  the  muster  out  of  his  command  and  was  subsequently 
ordered  to  report  to  the  chief  mustering  officer  of  his  State  ror  dis- 
charge, must  be  considered  to  have  been  in  service  until  the  date  of 
the  issue  of  that  discharge,  provided  that  it  appears  that  he  obeyed 
his  order  and  reported  to  the  chief  mustering  officer  of  his  State 
without  delay.     C.  5075,  Sept.  28,  1898. 

IV  D  2  a  (3).  Neither  an  officer  nor  an  enHsted  man,  retained  in 
service  or  subjected  to  military  control  after  the  muster  out  of  his 
command,  who  voluntarily  withdrew  himself  from  such  service  or 
control  without  permission  from  the  proper  authority,  or  who  failed 
to  promptly  obey  an  order  to  proceed  to  his  home  and  report  to  The 
Adjutant  General,  or  an  order  to  report  to  the  chief  mustering  officer 
of  his  State,  must  be  considered  to  have  been  separated  from  the 
service  on  the  date  on  which  he  withdrew  himself  from  miHtary  con- 
trol or  was  relieved  from  duty;  and  if  that  date  is  not  ascertainable, 
then  his  service  must  be  considered  to  have  terminated  on  the  date  of 
the  last  official  order  issued,  or  the  last  official  act  done  to  or  concern- 
ing him,  while  he  was  still  actually  rendering  miUtary  service  or  was 
under  actual  miUtary  control.  C.  5075,  Sept.  28,  1898,  2940,  Feb.  11, 
1897. 

IV  D  3  a.  There  can  be  no  such  thing  as  a  man's  being  mustered  out 
from  the  mihtary  service  nunc  pro  tunc  any  more  than  a  man  can  die 
nunc  pro  tunc.  Even  as  a  man  has  to  live  until  he  dies  and  can  not 
be  killed  after  he  has  ceased  to  Uve,  so  a  soldier  must  remain  a  soldier 
until  he  changes  to  the  status  of  civilian,  and  can  not  be  changed  to 
the  status  of  civilian  years  after  he  has  ceased  to  be  a  soldier.  P.  4^ 
232,   Mar.  30,  1891.     Held,  that  we  can  not  by  order  create  a  fact 

*  Published  in  War  Department  circulars  of  June  1  and  Sept.  20,  1900. 


VOLUNTEER  ARMY  IV  D  3  b.  1049 

to-day  and  carry  the  same  back  to  a  date  and  there  set  it  up  as  a  fact 
occurring  on  that  date,  whereas  in  reaUty  no  such  fact  then  occurred. 
R.  16,  406,  July  22,  1865;  P.  U,  ¥0,  Jan.,  1891;  46,  101,  223,  243, 
Mar.  and  Apr.,  1891;  51,  126,  Dec,  1891;  C.  2888,  Jan.,  1897;  7451, 
Dec.  18,  1899;  8722,  Aug.  3,  1900;  8962,  Sept.,  1900.' 

IV  D  3  b.  An  officer  was  retained  in  the  service  after  the  muster 
out  of  his  organization  for  the  purpose  of  liis  trial  by  court-martial. 
Held,  in  one  case,  that  pending  liis  trial  he  may  not  be  mustered  out 
as  of  a  date  previous  to  the  trial.  E.  12,  672,  Sept.  25,  1865.  Held, 
in  another  case,  where  the  officer  was  acquitted,  that  he  may  not  be 
mustered  out  as  of  a  date  prior  to  the  proceedings  of  the  court. 
R.  16,  4O6,  July  22,  1865. 

IV  D  3  c.  Held  that  after  a  Volunteer  Army  has  passed  out  of 
existence  there  is  no  authoritv  of  law  under  which  the  War  Depart- 
ment can  change  the  record  of  muster  out  of  a  soldier  so  as  to  make  it 
appear  otherwise  than  as  shown  by  the  official  records.  P.  35,  355, 
Oct.  3,  1889;  C.  9170,  Oct.  24,  1900. 

IV  E.  Held  that  an  officer  will  be  mustered  out  with  the  rank  which 
he  actually  has  in  connection  with  the  office  into  which  he  has  been 
mustered,  and  that  he  can  not  be  mustered  out  with  a  certain  grade 
simply  because  he  is  performing  the  duties  of  an  officer  of  that  grade.^ 
C.9774,  Feh.25,1901. 

IV  F.  A  legal  muster  out  of  service  of  an  officer  can  not  be  revoked. 
R.  6,  478,  Nov.  5,  1864;  11,  197,  May  1,  1865;  25,  541,  May  8,  1868; 
P.  35,  303,  Sept.  30, 1889.  While  the  Volunteer  Army  was  in  exist- 
ence a  muster  out  not  secured  by  fraud  through  misrepresentation 
{R.  6,  661,  Dec.  28, 1864),  or  through  withholding  evidence  {R.  20, 584, 
May  1,  1866),  was  irrevocable.  But  held  that  after  the  Volunteer 
Army  had  passed  out  of  existence  there  is  no  authority  of  law  under 
whicn  the  War  Department  can  change  the  record  of  a  soldier  so  as  to 
make  it  appear  otherwise  than  as  shown  by  the  official  records. 
P.  35,  355,  Oct.  3,  1889.^ 

IV  G  1 .  Held  that  while  a  volunteer  army  was  in  existence  a  muster 
out  secured  by  fraud,  misrepresentation,  or  withholding  evidence, 
was  revocable.  R.  6,  661,  Dec.  28,  1864;  H,  463,  Feb.  21,  1865;  20, 
584,  May  1,  1866;  23,  169,  Aug.  11,  1866. 

IV  G  1  a.  As  it  is  a  general  principle  that  fraud  vitiates  any  com- 
pact, and  that  no  party  is  bound  by  an  engagement  or  obligation  into 
which  he  has  been  induced  to  enter  through  the  fraud  or  false  repre- 
sentation of  another,  held  that  in  cases  of  fraudulent  muster  out,  the 
Government  may  elect  to  treat  the  mustering  out  order  as  of  no  effect; 
or  it  may  revoke  it,  or  discharge  without  honor  or  dismiss  the  officer, 
or,  order  him  to  be  tried  by  court-martial  for  his  offense,  at  any  time 
preceding  the  passing  out  of  existence  of  the  volunteer  army  to  which 
the  officer  belonged.  R.  11,  463,  Feh.  21,  1865;  23  id.,  121,  July  19, 
1866;  25  id.,  394,  Mar.  14,  1868;  P.  35,  35,  Sept.  30,  1889. 

IV  H  1.  The  War  Department  (The  Adjutant  General's  office)  is 
merely  the  custodian  of  the  records  of  disbanded  volunteer  organiza- 
tions. Undoubtedly  there  were  many  things  which  should  have  been 
recorded  but  which  were  not  recorded  while  the  organizations  to 
which  the  records  pertain  were  still  in  the  service  of  the  United  States. 
This  fact  however  does  not  by  any  means  justify  the  department  in 

^  See  War  Department  circular  of  Sept.  20,  1900. 

^  Published  in  War  Department  circular  of  Mar.  25,  1901. 


1050  VOLUNTEER  ARMY — VOLUNTEER  BANDS. 

undertaking  to  alter  or  amend  the  original  records  in  its  custody  so 
as  to  make  them  show  what  it  may  now  be  thought  they  ought  to 
have  been  made  to  show  originally.  If  such  a  procedure  were  per- 
missible with  regard  to  one  subject,  such,  for  mstance,  as  that  of 
charges  against  the  pay  of  enlisted  men,  it  would  be  equally  permis- 
sible with  regard  to  an  infinite  number  of  other  subjects;  and  there 
would  be  no  end  to  the  alterations  and  amendments  to  which  the 
records  might  be  subjected  in  the  course  of  years.^  C.  9170,  Oct, 1900. 
IV  H  2.  By  General  Orders,  No.  13,  Adjutant  GeneraPs  office,  1899, 
paragraph  148,  Army  Regulations,  was  extended  to  officers  of  volun- 
teers. Section  3  of  this  order  is  a  regulation  in  aid  of  a  statute,  viz, 
the  ''act  granting  extra  pay  to  officers  and  enlisted  men  of  United 
States  volunteers,"  approved  January  12,  1899,  and  with  Army 
Regulations  148,  provides  a  means  of  determining  whether  an  officer's 
or  soldier's  service  has  been  honest  and  faithful.  Held,  therefore, 
that  when  under  these  regulations  a  board  is  appointed,  its  approved 
finding  should  be  held  conclusive,  as  should  also  the  decision  of  the 
commanding  officer  when  no  board  has  been  appointed  or  applied 
for.2     C.  6408,  May,  1899. 

CROSS   REFERENCE. 

Appointments  by  President See  Office  III  A  4  b. 

Army See  Volunteer  Army. 

Enlistment  in See  Enlistment  I  B  2  d ;  e. 

Examination  for  commission See  Militia  XVII  to  XVIII. 

Office See  Office  V  to  VI. 

Office  in,  abolished See  Office  II  A  1. 

Public  property  carried  into See  Militia  IX  J. 

Regular  officer See  Office  IV  A  2  d  (3);  (3)  (a). 

Relative  rank See  Rank  II  B  to  C. 

Service  in  counts  for  retirement See  Retirement  II  A  3. 

Trial See  Discipline  XV  1 1. 

VOLUNTEER  BANDS. 

See  Army  Bands  I  D  to  E. 

Funds  of. See  Government  agencies  VIII. 

Instruments See  Public  property  VIII  A  6. 

Music See  Appropriations  LX. 

Post  exchange  profits See  Government  agencies  IIJ  11 ;  12. 

1  Under  date  of  Mar.  2,  1889,  the  Secretary  of  War  held  that  "a  record  can  not  be 
altered  unless  there  is  express  provision  of  law  authorizing  such  alteration.  Where 
evidence  is  filed  which  convinces  the  officer  whose  duty  it  is  to  report  upon  a  record 
that  the  record  is  not  correct,  the  fact  as  shown  by  the  record  will  be  stated,  followed 
by  a  remark  showing  what  in  his  opinion  the  correct  record  should  be.  It  is  entirely 
proper  to  make  a  note  opposite  the  record  believed  to  be  erroneous,  to  show  what 
the  correct  record  is,  and  where  the  evidence  to  substantiate  the  fact  may_  be  found. 
This  decision  should  not  be  construed  to  prohibit  the  correction  of  errors  in  a  report 
or  record  of  current  or  recent  date  where  the  officer  who  made  the  record  makes  satis- 
factory explanation  in  writing  of  such  erroneous  record  and  authorizes  its  correction." 

2  This  opinion  was  concurred  in  by  the  War  Department  and  the  following  action 
noted:  ''Hereafter  in  the  case  of  any  officer  or  enlisted  man  of  a  volunteer  organi- 
zation that  has  been  mustered  out  of  service  a  record  of  'service  not  honest  and  faithful ' 
that  has  been  made  against  such  officer  or  enlisted  man  at  the  time  of  his  discharge, 
in  accordance  with  paragraph  148,  Army  Regulations,  and  section  3,  of  General  Orders, 
No.  13,  A.  G.  0.,  1899,  will  be  held  to  be  conclusive.  No  cancellation,  alteration,  or 
amendment  of  such  a  record  will  be  made,  and  all  applications  for  the  cancellation, 
alteration,  or  amendment  of  such  a  record  will  be  denied,  regardless  of  any  and  all 
testimony  that  may  be  submitted  in  support  thereof,  on  the  ground  that  the  War 
Department  has  no'  lawful  authority  to  review  the  decision  that  was  made  in  such  a 
case  or  to  change  the  record  of  that  decision." 


VOTE — war:  synopsis.  1051 

VOTE. 

I.  LOSS  OF  ON  CONVICTION. 

A.  Means  Conviction  by  Civil  Court. 
I  A.  Where  a  State  statute  imposed  the  disability  of  loss  of  the 
right  of  the  suffrage  upon  persons  convicted  of  larceny,  held  that  the 
conviction  intended  was  a  conviction  by  a  civil  court,  and  that  a 
conviction  of  this  crime  by  a  military  court  (even  if  convened 
within  the  State)  did  not  work  such  disability,  or — to  enable  the 
soldier  to  vote  in  the  State — require  a  pardon  by  the  President. 
P.  27,  65,  Sept.,  1888. 

cross  reference. 

See  Residence. 

By  civilian  employees See  Eight-Hour  law  IX. 

By  deserter See  Desertion  XIV  B. 

Member  of  general  court-fnartial See  Articles  op  War  LXXXIV  C  I ;  2. 

Discipline  IX  K  1  to  3. 

VOUCHER. 

Certification  of  by  Assistant  and  Chief  Clerk 

of  War  Department See  Civilian  employees  XVI  C. 

Forged See  Public  money  II  B  2. 

Lost See  Discipline  X  I  7 

WAIVER. 

Accused  right  to  be  present  at  trial See  Discipline  VIII  H  2. 

Amount  of  bond See  Bonds  III  E. 

Bond  of  contractor See  Bonds  III  A. 

By  adm  ission See  Discipline  V  H  2. 

By  pleading  general  issue See  Discipline  V  E;  IX  F  2  a. 

Defects  in  bidders'  guaranties See  Bonds  I  C. 

Defects  in  bonds See  Bonds. 

Examination  requirements See  Laws  II  A  1. 

Guaranties See  Contracts  XI  F. 

Guarantor  for  copartner See  Bonds  I  D. 

Plea  in  bar See  Discipline  IX  F  1  a  (1). 

Pmrilege  by  witness See  Discipline  X  H  1. 

Rvght  to  appear  before  retiring  board See  Retirement  I  N  2. 

Right  to  discharge See  Discharge  IX  D. 

Right  to  pension See  Office  III  A  5. 

Sample  with  bids See  Contracts  VI  I. 

Time  limits See  Contracts  VII J  10, 

Travel  allowance  in  discharge  by  favor See  Pay  and  allowances  III  C  2  c  (3). 

Trial  by  Government See  Discipline  V  A. 

Variance See  Discipline  V  D  4. 

WAR. 
I.  DEFINED Page  1054 

A.  Classes. 

1.  Perfect. 

2.  Imperfect. 

3.  Civil. 

4.  Mixed. 

5.  Indian Page  1055 

a.  Declaration  not  required . 

B.  Beginning  of  War. 

1.  Declaration  not  necessary.    ■ 

2.  Spanish  War. 

3.  Philippine  insurrection. 

4.  Boxer  uprising. 

5.  Proclamation. 

a.  Should  call  on  citizens  to  cooperate. 


1052  war:  synopsis. 

I.  DEFINED— Continued. 
C.  Laws  of  War. 

1.  Defined. 

2.  Rule  of  nonintercourse. 

a.  Civilians  may  be  put  under  surveillance Page  1056 

b.  Applies  to  aliens. 

c.  Enforcible  as  to  newspapers  in  occupied  territory. 

d.  Violation  of,  is  not  offense  of  spy Page  1057 

3.  Spies. 

a.  Must  he  captured  in  flagrante  delicto. 

b.  Hostile  officer. 

c.  Hostile  straggler. 

d.  Gravamen  of  offense. 

4.  Newspapers. 

a.  May  be  suppressed Page  1058 

5.  Weapons. 

a.  Saber  may  be  sharpened. 

6.  As  to  property. 

a.  Destruction  of,  in  battle. 

(1)  Must  be  borne  by  sufferers. 

(2)  Any  compensation  is  bounty  rather  than  right. 

b.  Use  of. 

(1)  Real  property. 

(a)  Public  buildings Page  1059 

(b)  Transportation, 
c;  Captured  property. 

(1)  Not  violation  of  article  5,  amendments  to  Constitution. 

(2)  Not  impressed  under  section  3483,  Revised  Statutes. 

(3)  Title  accrues  to  United  States. 

(a)  Civilian  can  not  convert  to  own  use Page  1060 

(b)  Disposed  of  only  by  Congress. 

(c)  No  prize  money  in  Army. 

(d)  Personal  appropriation  of  property  is  a  military 

offense. 

(e)  Disposition  of  recaptured  property. 

[1]  Of  loyal  owner Page  1061 

[2]  Of  a  regimental  flag. 
(/)  Immovable  can  not  be  alienated. 

[1]  Use  of,  may  be  licensed Page  1062 

d.  Borrowed  property. 

(1)  Fi-om  allies. 

e.  Seizing  of  property. 

(1)  Of  money  in  bank. 

f.  Taxes. 

(1)  Become  payable  to  military  occupant. 

g.  Mapping,  etc. 

(1)  Photographing  fortifications  forbidden Page  106S 

h.  Destruction  of  property  as  a  military  necessity. 

7.  Enemy's  government. 

a.  Courts  enforce  local  law  until  suspended . 

8.  Military  government. 

a.  War  power — source  of  and  execution  of. 

(1)  Any  proper  law  of  military  government  after  promulga- 
tion is  valid  law Page  1064 


war:  synopsis.  1053 

DEFINE  D— Continued . 
C.  Laws  op  War — Continued. 

8.  Military  government — Continued. 

a.  War  power — source  of  and  execution  of — Continued. 

(2)  Commanding  general. 

(a)  May  appoint  civil  courts. 

(6)  May  remove  civil  officials Page  1065 

(c)  May  collect  tariff Page  1066 

[1]  On  cotton. 

(d)  May  deport  persons  for  cause. 

(3)  Military  commissions. 

(a)  Are  criminal  law  courts. 
(6)  Jurisdiction. 

[1]  Source Page  1067 

[2]  Cases  that  arise  before  organization  of  military 
government. 

[3]  Offenses  of  spy Page  1068 

[4]  Continues  until  peace. 

[5]  Special  statutory  jurisdiction  under  act  of 
March  3,  1867. 

(c)  Lack  of  jurisdiction. 

[1]  Not  under  military  government . .  Page  1069 

[a]  Even  over  offenses  at  prison  camp, 
[2]  Over  civil  suits. 
[3]  Concurrently  with  courts-martial. 

(d)  Procedure. 

[1]  Of  court-martial  applicable Page  1070 

[2]  Action  by  convening  authority. 
[3]  Types  of  principal  cases  during  Civil  War. 
[4]  Types  of  crimes  during  Civil  War.  Page  1071 
[5]  Types  of  offense  against  prisoners  of  war. 
(g)  Sentence Page  1072 

(4)  Provost  courts. 

b.  Continues  until  Congress  makes  other  provision. 

c.  In  Cuba  by  intervention. 

(1)  Duty  is  an  executive  one. 

(a)  Question  of  intervention  arises,  How?...  Page  1073 
(6)  Steps  to  be  taken. 
9.  Retaliation Page  1074 

10.  Flag  of  truce. 

11.  Prisoners  of  war. 

a.  Unnecessary  taking  of  prisoner's  life  is  murder. 

b.  Violation  of  parol  is  capital  offense Page  1075 

c.  Taken  from  enemy. 

(1)  Civil  employees. 

(2)  May  be  turned  over  to  civil  courts  for  trial  of  murder  com- 

mitted in  a  prison. 

(3)  Civil  courts  may  pass  on  status  of  prisoner  of  war  if  such 

prisoner  has  become  subject  to  the  court's  jurisdiction. 

(4)  Parol  does  not  authorize  prisoner  to  come  within  our  lines. 

(5)  Grounds  for  remission  of  sentence  of  prisoner  of  war. 

(a)  Enemy's  chaplain  entered  line  to  purchase  bibles. 

(6)  Termination  of  status. 

(a)  By  enlistment Page  1076 


1054  WAR  I. 

I.  DEFINED— Continued. 

C.  Laws  of  War — Continued. 

11.  Prisoners  of  war — Continued. 

d.  Taken  by  the  enemy. 

(1)  If  under  sentence  of  dismissal  remain  in  service  until 

notice  of  dismissal. 

(2)  Parol. 

(a)  Returns  to  duty  status. 

(6)  Paroled  prisoner  not  required  to  return  to  regiment. 

(c)  May  be  assigned  to  duty  not  in  contact  with  enemy. 

(3)  Enlisting  in  enemy's  army. 

12.  Writ  of  habeas  corpus  may  be  suspended Page  1077 

a.  Revocation  of Page  1078 

D.  Treaty. 

1.  Public  movable  property  not  mentioned  remains  property  of  former 
owner. 

E.  Martial  Law. 

1.  Defined. 

a.  Modified  degree  of  law  of  war Page  1079 

(1)  Military  power  supreme. 

b.  Exists  when  military  government  takes  control. 

c.  Commanding  general  supreme  governor Page  1080 

(1)  May  stop  suits  against  United  States. 

d.  When  emergency  ceases  occasion  for  martial  law  passes. 

e.  Revocation  of  suspension  of  writ  of  habeas  corpus. 

f .  When  Federal  troops  protect  State  they  are  not  under  command 

of  State  authorities Page  1081 

F.  Ending  of  War. 

1.  State  judge  can  not  decide  when  war  ends. 

2.  Spanish  War. 

3.  Philippine  insurrection Page  1082 

4.  Boxer  uprising. 

G.  Newspaper  Correspondents. 

1.  Subject  to  military  control. 

I.  War  is  that  state  in  which  a  nation  prosecutes  its  right  by  force. 
Parties  belligerent  in  a  war  are  independent  nations,  but  it  is  not 
necessary  to  constitute  war  that  both  parties  be  acknowledged  as 
independent  nations  or  soverei^  States.  War  may  exist  if  one  of 
belligerent  parties  claims  sovereign  rights  against  the  other.*  C.  7721 , 
May  9,  1907;  17609^  Mar.  21,  1905. 

I  A  1 .  A  perfect  war  is  one  which  disturbs  the  national  peace  and 
tranquillity  and  lays  the  foundation  of  every  possible  act  of  hostility. 
C.7721,  May  9,1907. 

I  A  2.  An  imperfect  war  is  said  to  be  that  which  does  not  entirely 
disturb  the  public  tranquillity,  but  interrupts  it  only  in  some  particu- 
lars, as  in  the  case  of  reprisals.*     C.  7721,  May  9,  1907. 

I  A  3.  A  civil  war  is  a  war  de  facto  existing  within  the  borders  of  a 
State.2     0.7721,  May  9, 1907. 

1  A  4.  A  mixed  war  is  described  as  a  war  carried  on  between  a 
nation  on  one  side  and  private  individuals  on  the  other.  0.  7721, 
May  9,  1907. 

^  The  Bank  of  the  Commonwealth  v.  The  Commissioner  of  Taxes,  67  U.  S.,  635. 

2  Four  Federal  cases,  384. 


WAR   I  A  5.  1055 

I  A  5.  Active  hostilities  with  Indians  do  not  constitute  a  state  of 
foreign  war,  tlie  Indian  tribes,  even  where  distinct  political  communi- 
ties, being  subject  to  the  sovereignty  of  the  United  States.*  Warfare 
inaugurated  by  Indians  is  thus  a  species  of  domestic  rebellion,  but  it 
is  so.iar  assimilated  to  foreign  war  that  during  its  pendency  and  on  its 
theater  the  laws  and  usages  which  govern  and  apply  to  persons  during 
tlie  existence  of  a  foreign  war  are  to  be  recognized  as  m  general  pre- 
vailing and  operative.  Held  that  the  mere  making  of  predatory 
incursions  by  parties  of  Indians  with  whose  tribe  no  general  nostilities 
have  been  inaugurated  does  not  constitute  an  Indian  war.  C.  20570, 
Nov.  27,  1906. 

I  A  5  a.  No  formal  declaration  of  war  by  Congress  or  proclamation 
by  the  President  is  necessary  to  define  and  characterize  an  Indian 
war.  It  is  sufficient  that  hostilities  exist  and  military  operations 
are  carried  on.^     C.  7721,  May  9,  1907. 

I B  1 .  Held  that  a  state  of  actual  war  may  exist  without  any 
formal  declaration  by  either  party,  and  this  is  true  of  both  civil  and 
foreign  war.^     C.  17609,  Mar.  21,  1905. 

I  B  2.  The  act  of  April  25,  1898  (30  Stat.  364),  declared  ''that  war 
has  existed  since  April  21,  1898."  Held  that  a  state  of  war  between 
the  United  States  and  Spain  began  on  April  21,  1898.  C.  5424,  Dec. 
1,  1898;  15754,  Dec.  23,  1904. 

I  B  3.  Held  that  the  insurrection  in  the  Philippine  Islands  was 
fully  initiated  as  a  state  of  war  by  the  battle  of  Manila  on  February  4, 
1899,*  and  that  there  followed  a  rebellion  in  which  a  hostile  party 
occupied,  and  held  in  a  hostile  mamier,  a  certain  portion  of  territory, 
declared  their  independence,  organized  armies  and  engaged  the 
troops  of  the  United  States  in  hostilities  in  which  thirty  or  forty  thou- 
sand men  were  mvolved.  C.  8197,  May  3,  1900;  10002,  Mar.  18, 
1901;  12184,  Mar.  12,  1902;  15754,  Dec.  23,  1903;  19734,  May  15, 
1906. 

I B  4.  Held  that  a  wat  status  existed  in  behalf  of  officers  and 
enlisted  men  of  the  Army  of  the  United  States  who  were  in  China 
beginning  with  May  26,  1900.  This  gave  them  the  increased  allow- 
ance of  pay  for  service  in  time  of  war.     C.  16596,  Feb.  10,  1905. 

I  B  5  a  (1).  Held  that  if  a  stage  is  reached  where  in  the  performance 
of  his  duty  "to  execute  the  laws  of  the  Union"  it  becomes  necessar}^ 
for  the  President  of  the  United  States  to  issue  a  proclamation  calling 
upon  the  insurgents  and  other  evil-disposed  persons  to  retire  to  their 
homes,  it  would  be  advisable  to  incorporate  into  such  proclamation  a 
clause  calling  upon  all  citizens  to  cooperate  in  the  effective  suppression 
of  unlawful  violence.^     C.  20396,  Sept.  17,  1906. 

I  C  1.  The  law  of  war  is,  in  brief,  the  law  of  military  government 
and  authority  as  exercised  in  time  of  war,  foreign  or  civil.  Its  usual 
field  is  the  territory  of  a  conquered  country  in  the  occupation  of  a 
hostile  army;  it  is  sometimes  extended,  however,  though  generally  in 

1  See  Worcester  v.  Georgia,  6  Peters,  515. 

2  Alaire  v.  The  United  States,  1  Ct.  Cls.,  238,  and  Marks  v.  The  United  States,  28 
Ct.  Cls.,  147. 

3  Prize  Cases,  67  U.  S.,  636.  See  Hague  Conventions  of  1907;  36  Stat.  2241;  also 
Military  Laws  of  United  States  with  Supplement  of  1911,  p.  1461. 

"  See  Thomas  v.  U.  S.,  39  Ct.  Cb.,  1. 

^  This  was  done  by  President  Washington  in  his  proclamation  dated  Sept.  1,  1794, 
and  bj^  President  Lincoln  in  his  proclamations  dated  Apr.  15  and  May  3,  1861, 
respectively. 


1056  WAR  I  c  2  a. 

a  milder  form,  to  localities  under  ''martial  law."  It  is  properly  a 
part  of  the  law  of  nations,  though  its  application  may  be  materially 
varied  by  the  circumstances  of  the  country  or  the  people  brought 
under  its  sway. 

It  is  a  fundamental  principle  of  the  law  of  war  that,  during  a  state 
of  war,  all  commercial  intercourse  between  the  belligerents  is  inter- 
dicted and  made  illegal  except  when  and  where  it  may  be  expressly 
authorized  by  the  Government.  During  the  Civil  War,  which,  as 
respects  the  application  in  general  of  the  laws  and  usages  of  war,  was 
assimilated  to  a  foreign  war,^  all  trade  or  intercourse  with  the  enemy, 
except  so  far  as  permitted  by  the  President  under  authority  from 
Congress  (or  in  rare  cases  by  a  commanding  general  in  the  field  repre- 
senting the  President)  was  necessarily  suspended.^  R.  11,  638,  6J^7, 
651,  Mar.  and  Apr.,  1865;  12,  259,  Jan.,  1865;  14,  2^1,  Mar.,  1865; 
16,  572,  Sept.,  1865;  19,  673,  July,  1866;  30,  846,  May,  1870. 

I  C  2  a.  Where  a  party  arrested  in  attempting  without  authority  to 
cross  the  Potomac  for  the  purpose  of  holding  communication  with 
persons  in  the  enemy's  country,  was  ordered  by  the  department  com- 
mander— his  offense  having  been  committed  in  a  district  in  military 
occupation — to  be  placed  under  military  surveillance  and  to  furnish  a 
bond  with  sufficient  sureties,  obliging  him  not  to  attempt  again  during 
the  war  to  join  or  hold  intercourse  with  the  enemy,  liela  that  such 
proceeding  was  warranted  by  the  laws  and  customs  of  war.  R.  3,  255, 
July,  1863. 

I  C  2  b.  Offenses  against  the  law  of  nonintercourse  between  the  bel- 
ligerents in  time  of  war  are  no  less  such  when  committed  by  foreigners 
than  when  committed  by  citizens.  Thus  where  certain  persons  made 
their  way  early  in  the  civil  war  from  Scotland  to  South  Carolina, 
engaged  for  a  considerable  period  in  the  manufacture  of  treasury  notes 
for  the  Confederate  authorities,  and  at  the  end  of  their  employment 
came  secretly  and  without  authority  into  our  lines  with  the  design  of 
returning  to  their  home,  held  that,  though  British  subjects,  they  had 
identified  themselves  with  the  cause  of  the  enemy,  and  were  properly 
amenable  to  trial  for  the  offense  of  penetrating  our  military  lines  in 
violation  of  the  laws  of  war.     R.  15, 112,  Mar.,  1865. 

I  C  2  c.  Held  that  a  system  of  correspondence  which  had  been  con- 
certed and  maintained  between  northern  and  southern  newspapers  by 
means  of  an  interchange  of  published  communications  entitled  ''Per- 
sonals," was  an  evasion  of  the  rule  interdicting  intercourse  with  the 
enemy  in  time  of  war,  and,  not  being  within  the  regulations  established 

1  See  Prize  Cases,  2  Black.,  666-9;  Dow  v.  Johnson,  10  Otto,  164;  Brown  v.  Hiatt,  1 
Dillon,  372;  Philips  i;.  Hatch,  id.,  571;  Sanderson  v.  Mor^n,  39  N.  York,  231;  Perkins 
V.  Rogers,  35  Ind.,  124;  Leathers  v.  Com.  Ins.  Co.,  2  Bush,  639;  Hedges  v.  Price, 
2  West  Va.   192. 

2  The  Ouachita  Cotton,  6  Wallace,  521;  Coppell  v.  Hall,  7  id.,  542,  554;  McKee  v. 
United  States,  8  id.,  163;  United  States  v.  Grossmayer,  9  id.,  72;  Montgomery  v. 
United  States,  15  id.,  395;  Hamilton  v.  Dillin,  21  id.,  73;  Mitchell  v.  United  States, 
id.,  350;  Matthews'?;.  McStea,  1  Otto,  7;  Dow  v.  Johnson,  10  id.,  164;  Kershaw  v.  Kel- 
sey,  100  Mass.,  561;  Lieber's  Instructions,  G.  0. 100,  War  Dept.,  1863,  par.  86.  Besides 
the  suspension  incident  to  the  state  of  war,  a  suspension  of  commercial  intercourse 
with  the  enemy  was  specially  directed  by  act  of  Congress  of  July  13,  1861,  and  pro- 
claimed by  the  President  on  Aug.  16,  1861.  By  authority  conferred  by  the  same 
statute,  general  regulations,  concerning  commercial  intercourse  with  and  in  the 
States  declared  in  msurrection,  were  approved  by  the  President,  .fan,  26,  1864,  and 
published  in  G.  O.  53,  Dept.  of  the  Gulf,  of  Apr.  29, 1864. 


WAR  I  c  2  d.  1057 

for  correspondence  by  letter  between  the  lines  bv  flag  of  truce,  should 
not,  however  innocent  might  be  many  or  most  or  the  communications, 
be  sanctioned  by  the  Government,  but  that  the  proprietors  of  the 
nortliern  newspapers  concerned  should  be  notified  that  unless  the 
practice  were  discontinued,  they  would  be  liable  to  be  proceeded 
against  for  promoting  correspondence  with  the  enemy  in  violation  of 
the  laws  of  war  or  of  the  special  act  of  February  25,  1863.^  R.  12, 
259,  Jan.,  1865. 

I  C  2  d.  A  mere  violation  of  the  law  of  war  prohibiting  intercourse 
between  belligerents,  committed  by  a  civilian  in  coming  without 
authority  within  our  lines  from  the  enemy's  country,  can  not  properly 
be  regarded  as  attaching  to  him  the  character  of  the  spy.  u.,  9,  95, 
May  9, 1864. 

I  C  3  a.  The  spy  must  be  taken  in  flagrante  delicto.  If  he  succeeds 
in  making  his  return  to  his  own  army  or  country,  the  crime,  according 
to  a  well-settled  principle  of  public  law,  does  not  follow  him,  and,  if 
subsequently  captured  in  battle  or  otherwise,  he  can  not  properly  be 
brought  to  trial  as  a  spy.^  R.  5,  248,  286,  Nov.,  1863;  9,  100,  May, 
1864;  2S,  459,  May,  1867;  C.  2644,  Seft,  1896;  21529,  May  14, 1907, 
Oct.  20,  1908. 

I  C  3  b.  Where  an  ofiicer  of  the  enemy's  army,  arrested  while 
lurking  in  the  State  of  New  York  in  the  disguise  of  a  citizen's  dress, 
was  shown  to  have  been  in  the  habit  of  passmg,  for  hostile  purposes, 
to  and  from  Canada,  where  he  held  communication  with  agents  of 
the  enemy  and  conveyed  inteUigence  to  them,  held  that  he  was 
amenable  to  trial  as  a  spy  before  a  mUitary  court  under  the  statute. 
R.  11,  474,  Feb.,  1865;  C.  21529,  May  I4,  1907,  and  Oct.  20,  1908.  ^ 

I  C  3  c.  Where  a  soldier  of  the  enemy's  army,  separated  from  it 
on  its  retreat  from  Maryland  in  1864,  was  arrested  after  wandering 
about  in  disguise  within  our  lines  for  a  month,  seeking  for  an  oppor- 
tunity to  make  his  way  to  the  enemy's  forces  and  join  his  regiment, 
held  that  he  was  not  properly  chargeable  with  the  offense  of  the  spy, 
but  should,  because  of  his  disguise,  be  punished  for  a  violation  of  the 
laws  of  war.  R.  11,  82,  Oct,  1864;  O.  21529,  May  I4,  1907,  and 
Oct.  20,  1908. 

I  C  3  d.  Section  1343,  R.  S.,^  is  one  of  the  few  provisions  of  our 
statute  law  authorizing  the  trial,  in  time  of  war,  of  civilians,  by  mili- 
tary courts.  The  majority,  however,  of  the  persons  brought  to  trial 
as  spies  during  the  Civil  War  were  members  of  the  army  of  the  enemy. 
The  gravamen  of  the  offense  of  the  spy  is  the  treachery  or  deception 
practiced — the  being  in  disguise  or  acting  under  false  pretenses.*    An 

1  See  G.  O.  10,  Dept.  of  the  East,  1865. 

^  The  leading  case  on  this  point  in  this  country  is,  In  the  matter  of  Martin,  reported 
in  45  Barb.  (N.  Y.),  142,  and  31  How.  Pr.,  228.  See  also  par.  104,  G.  0.  100,  A.  G.  O., 
of  1863. 

See  also  Hague  convention  of  1907,  36  Stat,  at  L.,  2241;  also  Military  Laws  of 
United  States,  with  Supplement  of  1911,  p.  1461.  Spies  must  be  tried  (Hague  con- 
vention, 1907). 

^  This  section  provides:  "All  persons  who,  in  time  of  war,  or  of  rebellion  against  the 
supreme  authority  of  the  United  States,  shall  be  found  lurking  or  acting  as  spies,  in 
or  about  any  of  the  fortifications,  posts,  quarters,  or  encampments  of  any  of  the  armies 
of  the  United  States,  or  elsewhere,  shall  be  triable  by  a  general  court-martial,  or  by  a 
military  commission,  and  shall,  on  conviction  thereof,  surfer  death." 

''  Halleck,  Int.  Law,  406  and  407. 

31106°— 12 67 


1058  WAR  I  c  4  a. 

officer  or  soldier  of  the  enemy  discovered  ''lurking"  in  or  near  a 
camp  or  post  of  our  Army,  disguised  in  the  uniform  or  overcoat  of  a 
United  States  soldier,  is  frima facie  a  spy,  and  liable  to  trial  as  such. 
R.  14,  579,  June,  1865.  So  an  officer  or  soldier  of  the  enemy  who, 
without  authority  and  covertly  penetrates  within  our  lines  disguised 
in  the  dress  of  a  civilian,  may  ordinarily  be  presumed  to  have  come 
in  the  character  of  a  spy,  unless,  by  satisfactory  evidence  that  he 
came  for  some  comparatively  venial  purpose,  as  to  visit  his  family, 
and  not  for  the  purpose  of  obtaining  information,  he  may  rebut  the 
presumption  agamst  him  and  show  that  his  offense  was  a  simple  vio- 
lation of  the  laws  of  war.  R.  2,  580,  June,  1863;  4,  307,  and  5,  315, 
Nov.,  1863;  5,  572,  and  7,  66,  Jan.,  1864;  15,  I4,  Feb.,  1865. 

I C  4  a.  There  can  be  no  doubt  as  to  the  authority  of  the  commander 
of  an  army,  in  occupation  and  government  of  the  enemy's  country,  to 
suppress  a  newspaper  or  other  publication  deemed  by  him  to  be 
injurious  to  the  public  interests  in  exciting  opposition  to  the  dominant 
authority  or  encouraging  the  support  of  the  enemy's  cause  on  the  part 
of  the  inhabitants.     A  newspaper  may  be  a  powerful  agent  for  such  a 

Eurpose,  and,  when  it  is  so,  it  may,  under  the  laws  of  war,  as  legally 
e  silenced  as  may  a  fort  or  battery  of  the  enemy  in  the  field.  R.  2j 
585,  June,  1863. 

I  C  5  a.  Held  that  the  sharpening  of  sabers  is  not  a  violation  of  the 
laws  of  war  nor  is  it  a  violation  of  any  of  the  conventions  which  have 
been  accepted  by  the  United  States  either  expressly  or  by  implica- 
tion for  the  government  of  its  military  forces  when  engaged  in  actual 
military  operation.     C.  I4OOO,  Jan.  19,  1903. 

I  C  6  a  (1).  The  destruction  or  injury  of  private  property  in  battle 
or  the  bombardment  of  cities  and  towns  has  to  be  borne  by  the 
sufferers  as  one  of  the  consequences  of  war.  Whatever  would 
embarrass  or  impede  the  advance  of  the  enemy,  as  the  breaking 
up  of  roads  or  the  burning  of  bridges,  or  would  cripple  and  defeat 
him,  as  destroying  his  means  of  subsistence,  may  be  lawfully  ordered 
by  the  commanding  general.  The  necessities  of  war  justify  all  this. 
The  safety  of  the  State  in  such  cases  overrides  all  considerations  of 
private  loss.  Salus  populi  is  then  in  truth  suprema  lex.^  So  lield 
that  the  United  States  was  not  legally  responsible  for  damages  to 
the  house  of  a  resident  and  citizen  of  Santiago,  Cuba,  caused  *'by 
a  shell  fired  from  an  American  war  ship  on  or  about  the  fifth  day 
of  July,  1898,  during  the  bombardment  of  the  city."  C.  5619,  Jan. 
5,  1899;  11181,  Sept.  12,  1901. 

I  C  6  a  (2).  During  the  Civil  War  the  commanding  officer  of  the 
United  States  forces  at  Paducah,  Ky.,  ordered  the  destruction  of  a 
dwelling  house  and  its  contents  in  order  that  he  might  secure  an 
open  range  for  the  guns  of  the  United  States  fort,  and  because,  with 
other  houses  also  destroyed,  it  had  been  used  as  a  cover  for  Confed- 
erate troops  attacking  the  fort.  The  Congress  appropriated  $25,000 
to  indemnify  the  owner  of  that  house.  The  President  vetoed  the 
bill.^  Concerning  this  destruction  of  property  it  was  held  that  it  is 
a  general  principle  of  both  international  and  municipal  law  that  all 

1  See  U.  S.  V.  Pacific  Railroad,  120  U.  S.,  227,  and  authorities  cited. 

2  See  Messages  and  Papers  of  the  President,  Vol.  VII,  pp.  172-173;  see  also  Vattel's 
Law  of  Nations,  Book  III,  Ch.  V,  p.  321. 


WAB  I  c  6  b  (i)  (a),  1059 

property  is  held  subject,  only  to  be  taken  by  the  Government  for 
public  uses,  in  whicn  case  under  the  Constitution  of  the  United 
States  the  owner  is  entitled  to  just  compensation,  but  also  subject 
to  be  temporarily  occupied,  or  even  actually  destroyed,  in  times  of 
great  public  danger  and  when  the  pubhc  safety  demands  it;  and  in 
this  latter  case  Governments  do  not  admit  a  legal  obligation  on 
their  part  to  compensate  the  owner.  The  temporarv  occupation  of, 
injuries  to,  and  destruction  of  property  caused  by  mutual  and 
necessary  mihtary  operations  are  generally  considerea  to  fall  witliin 
the  last-mentioned  principle.  If  the  Government  makes  compensa- 
tion under  such  circumstances  it  is  a  matter  of  bounty  rather  than 
of  strict  legal  right.     C.  14292,  Mar.  12,  1903. 

I  C  6  b  (1)  (a).  Held  that  where  a  state  of  war  exists  the  right  of 
an  army  to  occupy  pubhc  building  without  compensation  in  the 
territory  affected  can  not  be  questioned.  Public  buildings  include 
buildings  of  a  municipahty  as  well  as  those  of  a  State.  C.  16318, 
May  7,  1906;  6076,  Sept.  29,  1898;  6^67,  Dec.  8,  1899. 

I  C  6  b  (1)  (h).  As  there  is  no  doubt  of  a  beUigerent's  right  to  take 
forcible  possession  of  a  railway  or  other  means  of  transportation  and 
to  use  the  same  in  his  military  operations,  held  that  the  same  right 
exists  where  several  powers  cooperating  against  a  common  enemy, 
though  not  formally  allied,  make  a  similar  seizure  of  means  of  trans- 
portation.i     C.  11107,  Aug.  19, 1901. 

I  C  6  0  (1).  Held  that  the  property  of  enemies,  captured  jure  heUi 
in  a  civil  war,  did  not  belong  to  the  class  of  property  indicated  in 
Article  V  of  the  amendments  to  the  Constitution,  the  taking  of 
which  ''for  pubhc  use  without  just  compensation"  is  prohibited. 
R.  30,  231,  Apr.,  1870;  C.  10787,  July  17,  1901;  11683,  Nov.  12, 
1901;  16US,  Nov.  6,  1903. 

I  C  6  c  (2).  The  owner  of  property  captured  jure  belli  is  not  entitled 
to  recover  its  value  under  the  provisions  of  section  3483,  R.  S.,  as 
being  property  impressed  in  the  mihtary  service.^  R.  38,  Ji76,  Feb., 
1877. 

I  C  6  c  (3).  It  is  a  general  principle  that  captured  property  of  an 
enemy  with  whom  we  are  at  war  accrues  to  the  United  States. 
The  apphcation,  however,  of  this  principle  during  the  late  Civil  War 
was  affected  by  the  operation  of  certain  acts  of  Congress.  Personal 
property,  indeed,  of  the  Confederate  States,  or  of  one  of  them,  became 
on  capture  by  the  Federal  forces  the  property  jure  belli  of  the  United 
States.  So  the  title  to  their  real  estate,  occupied  by  the  United 
States  Army  at  some  period  of  the  war  and  held  tiU  its  end,  was 
completed  in  the  United  States  by  the  subjection  and  dissolution  of 
the  hostile  Government,  and  became  public  property,  subject  to  the 
disposition  of  Congress.  But  real  estate  of  individual  enemies 
(including  private  corporations),  while  subject  to  be  sold,  etc.,  under 
the  act  of  July  2,  1864,  could  not  in  general  become  vested  in  the 
United  States  except  through  the  judgment  of  a  competent  court, 
confiscating  the  same  upon  proceedings  instituted  under  the  act  of 

^  See  Hague  Conventions  of  1907,  36  Stat.,  2241;  also  Military  Laws  of  United  States 
with  Supplement  of  1911,  p.  1461. 
^  As  to  the  distinction  between  capture  and  impressment,  see  11  Op.  Atty.  Gen.,  378. 


1060  WAR  I  0  6  c  (3)  (a). 

July  17,  1862.  As  to  the  personal  property  of  individuals,  this 
(though  in  some  instances  made  the  subject  of  proceedings  for  con- 
fiscation) was  mostly  disposed  of  by  and  under  the  act  of  March  12, 
1863,  known  as  the  ' 'Captured  and  abandoned  property  act,"  by 
which  such  property  (except  munitions  of  war  and  other  material 
used  or  intended  to  be  used  m  prosecuting  the  war  against  the  United 
States,  and  which  were  of  course  subject  to  seizure  by  the  Army  and 
became  on  capture  the  property  of  the  United  States)  was  required 
to  be  collected,  sold,  and  the  proceeds  paid  into  the  Treasury,  subject 
to  the  claims  therefor  of  parties  who  should  establish  their  owner- 
ship of  the  property  and  the  fact  that  they  had  not  ^' given  aid  or 
comfort  to  the  rebellion."  ^  R.  18,  611,  Feb.,  1866;  19,  162,  Nov., 
1865;  23,  90,  July,  1866;  26,  160,  Nov.,  1867;  28,  610,  May,  1869; 
29,  6,  364,  J'^ne  and  Oct.,  1869;  42,  64O,  Mar.,  1880;  43,  I64,  Jan., 
1880;  C.  5076,  Sept.  29,  1898;  5457,  Dec.  6,  1898;  10787,  July  3, 
1901. 

I  C  6,c  (3)  (a).  Held  that  a  civilian  into  whose  hands  had  come, 
at  the  end  of  the  Civil  War,  certain  captured  personal  property  of 
the  enemy  was  not  entitled  to  convert  it  to  his  own  use  or  to 
demand  compensation  as  a  condition  of  its  surrender  to  the  United 
States  authorities.     R.21,  479,  June,  1866;  C.  12951,  July  18,  1902. 

I  C  6  c  (3)  (b).  Section  5586,  R.  S.,  authorizes  the  delivery  to  the 
Smithsonian  Institution  of  certain  kinds  of  property,  to  be  delivered 
to  such  persons  as  may  be  authorized  by  the  Board  of  Regents  to 
receive  the  same.  Upon  a  request  from  the  Secretary  of  the  Institu- 
tion that  a  small  Spanish  cannon  captured  in  the  trenches  before 
Santiago,  Cuba,  by  United  States  Volunteers,  and  brought  by  them  to 
Washington,  D.  C.,  be  assigned  to  the  United  States  Museum  at  the 
Institution,  lield,  that  the  provisions  of  section  5586  did  not  apply  to 
the  property  named;  that  the  same  being  public  military  stores 
captured  from  the  enemy  was  property  of  the  United  States,  and  that 
the  power  to  dispose  of  all  property  of  the  United  States  was  exclu- 
sively vested  by  the  Constitution  in  Congress.  0.  5033,  Sept.,  1898; 
11131,  Oct.  11,  1901. 

I  C  6  c  (3)  (c) .  All  property  captured  from  the  enemy  becomes  the 
property  of  the  United  States  subject  to  disposition  by  Congress. 
Where  it  inures  to  the  benefit  of  individuals  it  is  in  consequence  of  a 
grant  by  Congress.  But  there  is  no  act  of  Congress  which  extends  to 
members  of  the  Army,  Regular  or  Volunteer,  the  right  to  share  in  prize 
money  resulting  from  captures  by  the  Navy  of  public  or  private  ves- 
sels of  the  enemy,  though  the  Army  may  have  aided  in  the  operations 
which  led  to  the  capture.     0.  5250,  Nov.,  1898;  12951,  July  18,  1902. 

I  C  6  c  (3)  (d).  The  provision  in  the  9th  article  of  war  that  ''all 
public  stores  taken  from  the  enemy  shall  be  secured  for  the  service  of 
the  United  States"  is  in  accordance  with  the  principle  of  the  law  of 
nations  and  of  war.     "Private  persons  can  not  capture  for  their  own 

'  1  See  under  this  paragraph,  United  States  v.  Padelford,  9  Wallace,  531,  538;  United 
States  V.  Klein,  13  id.,  128,  136;  United  States  v.  Huckabee,  16  id.,  414;  Haycraft 
V.  United  States,  22  id.,  81;  Lamar  v.  Browne,  2  Otto,  187;  Williams  v.  Bmffy,  6  id., 
176,  188;  Young  v.  United  States,  7  id.,  39,  60;  Ford  v.  Surget,  id.,  594;  Dow  v. 
Johnson,  10  id.,  158;  Porte  v.  United  States,  Devereux  (Ct.  Cls.),  109;  Winchester 
V.  United  States,  14  Ct.  Cls.,  13;  United  States  v.  A  Tract  of  Land,  1  Woods,  475; 
Atkinson  v.  Central  Ga.  Mfg.  Co.,  58  Ga.,  227. 


WAR  T  c  c  c  (3)  (e)  [1].  1061 

benefit."*  Military  stores  taken  from  the  enemy  becoming  upon  cap- 
ture the  property  of  the  United  States,  Congress,  wliich,  by  the  Con- 
stitution, is  exclusively  vested  with  the  power  to  dispose  of  the  public 
property,  as  well  as  to  make  rules  concerning  captures  on  land  and 
water,  can  alone  authorize  the  sale  or  transfer  of  the  same.  An  officer 
or  soldier  of  the  Army  who  assumes  of  his  own  authority  to  appropriate 
such  articles  renders  himself  chargeable  with  a  military  offense.^  R.  2, 
41,  Feb.,  1863;  C.  12019,  Feh.  8,  1902. 

I  C  6  c  (3)  {e)  [1].  The  property  of  a  loyal  owner  captured. by  the 
enemy  during  the  Civil  War,  and  afterwards  recaptured  by  the  Federal 
forces,  may  DO  turned  over  to  him  by  executive  authority,  where 
clearly  identified  as  belonj^ing  to  him,  and  he  should  in  general  be 
allowed  to  receive  it  free  from  any  charge  in  tlie  nature  of  salvage.^ 
R.  1,  424,  428,  456,  Nov.  and  Dec,,  1862;  11,  266,  Dec,  1864;  20,  485, 
Mar.,  1866. 

I  C  6  c  (3)  {e)  [2].  Section  218,  R.  S.,  in  requiring  the  Secretary 
of  War  to  collect,  etc.,  **all  such  flags,  standards,  and  colors  as  are 
taken  by  the  Army  from  the  enemies  of  the  United  States,"  is  believed 
to  have  reference  to  the  flags  of  the  enemy.  So  advised,  that  a  flag 
of  a  Massachusetts  regiment,  captured  by  the  enemy,  and  retaken  at 
the  end  of  the  war  at  Richmond,  was  not  to  be  considered  as  one  of 
the  class  placed  by  the  statute  under  the  charge  of  the  Secretary  of 
War,  and  might  therefore  properly  be  returned  to  the  State  or  the 
regiment,  if  originally  belonging  to  or  furnished  by  the  same.  Other- 
wise, if  furnished  by  the  United  States :  in  such  case  the  flag  is  prop- 
erty of  the  United  States  disposable  only  by  Congress.  P.  58,  119, 
Feb.,  1893. 

1  C  6  c  (3)  (/) .  Under  the  law  of  war  a  government  by  military 
occupation  has  no  power  to  alienate  immovable  property  so  as  to 
render  such  alienation  effective  after  the  reinstatement  of  the  former 
government.*  And  it  would  seem  that  the  same  rule  should  apply  to 
the  granting  of  franchises  to  railways,  electric-light  plants,  etc. 
Whether  the  effect  of  a  treaty  of  peace  substituting  the  sovereignty 
of  the  United  States  for  that  of  the  former  government  would  be  to 
render  such  alienations  and  grants  binding  is  doubtful.  Upon  this 
point  the  authorities  do  not  seem  to  agree,  but  it  is  laid  down  in  the 
''Instructions  for  the  Government  of  the  Armies  of  the  United  States 
in  the  Field"  (G.  O.  100,  A.  G.  O.  1863,  par.  31)  that  ''a  victorious 
army  appropriates  all  public  money,  seizes  all  public  movable  prop- 

^  Although  the  general  or  express  consent  of  Congress  is  necessary  for  the  sale  or  other 
disposition  of  captured  property,  it  is  within  the  authority  of  the  Secretary  of  War  to 
allow  its  custody  to  remain  in  the  State  or  other  government.  The  custody  of  the 
fixed  ammunition  in  the  fortification  at  Habana  was  left  in  the  Cuban  Government  on 
the  evacuation  of  the  island  in  1902;  so  also  as  to  certain  obsolete  artillery  at  Santiago, 
Cuba. 

2  United  States  v.  Klein,  13  Wallace,  128,  136;  Decatur  v.  United  States,  Devereux 
(Ct.  Cls.),  110;  Wnhite  v.  Red  Chief,  1  Woods,  40;  Bianner  v.  Felkner,  1  Heisk.,  232; 
Worthy  v.  Kinamon,  44  Ga.,  299;  Huff  v.  Odom,  49  id.,  395;  13  Op.  Attv.  Gen., 
105;  Hough  (Practice),  329,  330,  G.  O.  54,  Hdqrs.  of  Army,  Mexico,  1848;  C.  O.  21, 
War  Dept.,  1848;  do.,  64,  107,  id.,  1862.  And  see  also  Lamar  v.  Browne,  2  Otto,  187, 
195,  in  regard  to  the  same  principle  as  illustrated  by  the  captured  and  abandoned 
propertv  act  of  Mar.  12,  1863. 

3  See  Wilson  v.  United  States,  4  Ct.  Cls.,  559. 

*  Wheaton  Int.  Law,  third  Eng.  edition  by  Boyd,  p.  469;  Hall's  Int.  Law,  fourth 
edition,  482-508;  Birkhimer's  Military  Government  and  Martial  Law,  197. 


1062  WAR  I  C  6  C  (3)  (/)  [1]. 

erty  until  further  direction  by  its  Government  and  sequesters  for  its 
own  benefit  or  that  of  its  Government,  all  the  revenues  of  real  property 
belonging  to  the  hostile  Government  or  nation.  The  title  to  such  real 
property  remains  in  abeyance  during  military  occupation  and  until 
the  conquest  is  made  complete."  If  the  title  to  real  property  is  in 
abeyance  as  stated,  it  would  seem  that  the  mihtary  authorities  would 
be  without  power  to  make  an  alienation  of  it  by  the  granting  of 
franchises  or  otherwise  which  would  be  valid  after  the  termination  of 
the  government  by  military  occupation.  C.  5076,  Sept.,  1898;  6457, 
Dec,  1898. 

I  C  6  0  (3)  (/)  [1].  When  the  treaty  of  peace  with  Spain  took  effect, 
April  11,  1899,  the  military  government  was  in  control  in  Porto  Rico, 
and  rightfully  continued  as  the  de  facto  government  of  the  island  exer- 
cising both  executive  and  legislative  powers,^  subject  to  such  consti- 
tutional limitations  as  were  applicable.  As  the  island  had  become 
territory  of  the  United  States,  under  the  treaty,  the  Secretary  of 
War  was  without  power  in  the  absence  of  congressional  authority  to 
alienate  any  part  of  the  public  domain,  but  lield  that  he  could,  as 
representative  of  the  President,  lawfully  license  the  temporary  use 
of  the  same  during  the  occupancy  and  government  of  the  island  by 
the  military  authorities.^     C.  6990,  Nov.,  1899. 

I  C  6  d  (1).  Held  that  when  the  forces  of  several  States  are  coop- 
erating against  a  common  enemy,  whether  in  the  execution  of  a  treaty 
of  alliance  or  in  the  mere  attainment  of  a  common  purpose  only,  one 
may  furnish  the  other  with  military  assistance  in  the  way  of  arms, 
military  supplies,  transportation,  medical  aid,  etc.,  in  the  form  of 
loans,  gifts,  or  sale.  Held  further  that  reimbursement  will  be  made 
in  such  a  case  by  the  proper  staff  department  upon  the  presentation 
of  the  proper  claim.     C.  11107,  Apr.,  19,  1901. 

I  C  6  e  (1).  The  taking  possession,  by  the  order  of  the  commander 
of  the  military  department  at  New  Orleans,  for  the  use  of  the  military 
service  in  the  prosecution  of  the  war,  of  moneys  belonging  to  enemies 
on  deposit  in  the  banks  of  that  city,  while  occupied  (in  1863)  by  our 
Army,  held  an  act  justified  by  the  strict  law  of  war.^  R.  19,  612, 
May,  1866. 

1  C  6  f  (1).  As  a  result  of  military  occupation  the  taxes  and  duties 
payable  by  the  inhabitants  to  the  former  government  become  payable 
to  the  military  occupant  unless  the  latter  sees  fit  to  substitute  for 
them  other  rates  or  modes  of  contribution  to  the  expenses  of  the 
Government.  So,  tield  that  the  President  acted  clearly  within  his 
powers  when  under  date  of  August  8,  1898,  as  Commander  in  Chief  of 
the  Army  and  Navy  he  ordered  and  directed  what  the  tariff  and 
duties  to  be  levied  and  collected  as  a  military  contribution  upon  the 
occupation  and  posesssion  of  any  ports  and  places  in  the  Island  of 
Cuba  by  the  forces  of  the  United  States  should  be;  that  regulations 

'  Cross  V.  Harrison,  16  Howard,  164,  193. 

2  See  opinion  of  Atty.  Genl.  of  July  26,  1899  (22  Op.,  544). 

2  See  New  Orleans  v.  Steamship  Co.,  20  Wallace,  394;  Witherspoon  v.  Farmers' 
Bank,  2  Duvall,  497.  But  in  Planters'  Bank  v.  Union  Bank,  16  Wallace,  483,  this  par- 
ticular order  was  held  to  have  been  an  exceeding  of  authority,  not  because  unauthor- 
ized by  the  law  of  war,  but  for  the  reason  that  a  previous  commander — Gen.  Butler — 
on  first  occupying  the  city,  by  his  proclamation  of  May  1,  1862,  had  pledged  the 
Government  to  the  holdiug  inviolate  of  all  rights  of  property.  And  see  The  Venice,  2 
Wallace,  258. 


WAR  I  C   6   g(l).  1063 

for  the  administration  of  such  tariff  and  duties  should  take  effect  and 
be  in  force  in  the  ports  and  places  when  so  occupied;  and  that  ques- 
tions arising  under  said  tariff  and  regulations  should  be  decided  by  the 
general  in  command  of  the  United  States  forces  in  said  island.  C. 
6268,  Nov.,  1898. 

I  C  6  g  (1).  Held  that  a  person  taking  photographs  of  fortifications 
in  time  of  war  runs  the  risk  of  being  treated  as  a  spy,  or  at  the  least  of 
doing  a  thing  forbidden  by  the  law  of  war.  His  arrest  outside  the 
limits  of  a  military  reservation  would  not  be  a  trespass;  nor  would  the 
seizure  and  retention  of  the  photographic  plates  be  unlawful.  Their 
retention  would  be  proper  though  no  notice  to  the  public  prohibiting 
the  taking  of  such  photographs  had  been  given.  C.  Jpl8J^,  Aug.,  1898; 
7362,  Nov.  28,  1899;  13188,  Aug.  23,  1902. 

I  C  6  h.  It  having  been  established  that  the  owner  of  certain  prop- 
erty at  Santo  Domingo,  P.  I.,  was  holding  communication  with  and 
forwarding  supplies  to  the  insurgents  his  house  was  burned.  Held 
that  as  the  property  was  destroyed  as  a  military  necessity  the  United 
States  could  not  be  held  pecuniarily  responsible  therefor.  C.  14972, 
July  25,  1908.  Similarly  lield  with  regard  to  the  destruction  of  a 
market  house  at  Bauan,  Luzon,  P.  I.,  in  which  a  native  who  was 
friendly  to  the  American  cause  was  murdered  because  of  such  friend- 
ship, the  burniug  of  the  market  house  being  held  to  be  a  necessary 
military  measure  to  prevent  such  future  lawless  acts.  C.  14972,  July 
22,  1903,  and  Jan.  27,  1904. 

I  C  7  a.  It  is  a  principle  of  the  law  of  war  that  the  municipal  laws 
of  a  conquered  country  continue  in  force  during  the  military  occuj)a- 
tion  by  tne  conqueror,  except  in  so  far  as  the  same  may  necessarily 
be  suspended  or  their  operation  be  affected  by  his  acts.^  So,  where  a 
testator  had  executed  in  Vicksburg,  Miss.,  after  its  capture  and  during 
its  occupation  by  our  forces  a  will  devising  real  estate;  but  such  will, 
in  not  being  attested  by  the  required  number  of  witnesses,  was  invalid 
under  the  State  law;  tield,^  that  as  this  law  was  in  no  respect  modified 
upon  the  capture,  the  devisee  under  the  will,  however  loyal,  could  not 
properly  be  invested  by  military  authority  with  the  legal  title  to  such 
estate  against  the  heirs  at  law.     R.  19,  474,  Mar.,  1866. 

I C  8  a.  The  war  power  of  the  United  States  is  vested  in  Congress 
by  Article  I,  section  8,  paragraphs  11,  12,  13,  14,  15,  and  16,  of  the 
Constitution.  The  President,  as  Executive  and  Commander  in  Chief 
of  the  Army  and  Navy,  becomes  authorized,  in  time  of  war,  to  execute 
this  power  under  the  public  acts  of  Congress  initiating  and  defining 
the  same.     An  official  of  a  State  can  no  more  lawfully  exercise  any 

1  "  By  the  well-recognized  principles  of  international  law,  the  mere  military  occu- 
pation of  a  country  by  a  belligerent  power  or  a  conqueror  does  not  ipso  facto  displace 
the  municipal  laws.  Such  conqueror  or  belligerent  occupier  may  suspend  or  supersede 
them  for  the  time  being,  but  m  the  absence  of  orders  to  that  effect  the^  remain  in 
force. "^  Wingfield  v.  Crosby,  5  Coldw.,  246.  "Supreme  military  authority  in  a  city 
is  not  incompatible  with  the  existence  and  authority  of  courts  of  civil  jurisdiction 
and  procedure."  Pepin  v.  Lachenmeyer,  45  N.  Y.,  27.  And  see  Kimball  v.  Taylor, 
2  Woods,  37;  Rutledge  v.  Fogg,  3  Coldw.,  554;  Hefferman  v.  Porter,  6  id.,  391;  Murrell 
V.  Jones,  40  Miss.,  566;  Dow  v.  Johnson,  10  Otto,  158,  166.  But  where  the  courts  of 
a  hostile  country  are  left  open  by  the  conqueror  it  is  only  the  citizens  of  such  country 
that  are  subject  to  their  jurisdiction;  the  officers  and  soldiers  of  the  occupying  army- 
are  in  no  manner  amenable  to  the  same.  This  principle  was  illustrated  by  the  Supreme 
Court  in  the  cases  of  Coleman  v.  Tennessee,  7  Otto,  509;  Dow  v.  Johnson,  The  Philip- 
pine Sugar  Estates  Development  Co.  v.  United  States.,  39  Ct.  Cls.,  225. 


1064  WAR  I  c  8  a  (i). 

part  of  such  function  than  can  an  individual  citizen.*  Thus,  where, 
during  the  civil  war,  the  governor  of  a  State  of  his  own  authority 
caused  to  be  arrested  and  confined  at  hard  labor  in  a  chain-gang  cer- 
tain inhabitants  of  the  State  suspected  of  sympathizing  with  and 
giving  aid  to  the  public  enemy — announcing  that  they  would  be  so 
confined  until  certain  civilians  and  military  officers,  who  were  resi- 
dents of  such  State  and  had  been  seized  by  the  enemy,  should  be 
released;  held,  that  such  proceeding  was  a  transcending  of  the  police 

Eower  of  the  State  and  an  assumption  of  an  exercise  of  the  war  power 
elonging  exclusively  to  the  Government  of  the  United  States,  and 
was  therefore  unauthorized  and  illegal.  R.  2,511,  June,  1863.  And 
similarly  lield,  that  the  seizing  and  holding  by  a  governor  of  a  State, 
of  certain  persons  as  '^  hostages,"  in  reprisal  for  citizens  of  that  State 
captured  by  the  enemy,  was  an  exercise  of  the  war-making  power 
belonging  to  the  General  Government  and  could  not  be  recognized 
as  legal  by  the  Secretary  of  War.     R.  3,  258,  July,  1863. 

I  C  8  a  (1) .  Anything  that  may  properly  be  made  alaw  of  a  military 
government,  and  which  is  promulgated  in  any  effective  way  that  the 
supreme  military  commander  may  see  fit  to  promulgate  it,  becomes  a 
valid  law  of  that  government  on  being  so  promulgated  and  must  be 
obeyed  by  all  persons  within  the  territory.  No  rules  or  laws  that  may 
have  been  in  force  in  the  territory  prior  to  its  military  occupation  can 
compel  the  commander  to  adopt  any  particular  manner  of  promulga- 
tion of  the  rules  enjoined  by  him.  The  chief  commander  m  the  ter- 
ritory governed  by  mihtary  government  does  not  fill  any  office  or  posi- 
tion that  formed  a  part  of  the  government  of  the  country  prior  to  the 
military  occupation;  nor  is  he  bound  by  any  rules  or  laws  relating  to 
the  performance  of  official  duties  by  any  governor  or  other  officer  of 
the  government  displaced. ^     0.  5978,  May,  1898. 

I  C  8  a  (2)  {a).  It  is  authorized  by  the  laws  of  war  for  a  mihtary 
officer  commanding  in  time  of  war  in  a  region  in  mihtary  occupation, 
and  where  the  ordinary  courts  are  closed  by  the  exigencies  of  the 
war,  to  appoint  a  special  court  or  judge  for  the  determination  of  cases 
not  properly  cogmzable  by  the  ordinary  military  tribunals.     In  the 

^  While  "war  can  alone  be  entered  into  by  national  authority,"  so  "no  hostilities 
of  any  kind  (except  in  necessary  self-defense)  can  lawfully  be  practised  by  one  indi- 
vidual of  a  nation  against  an  individual  of  any  other  nation  at  enmity  with  it,  but  in 
virtue  of  some  public  authority."     Talbot  v.  Janson,  3  Dallas,  160. 

Cases  on  Military  Government — 

The  Prize  cases  (2  Black,  635);  U.  S.  v.  Reiter  (Fed.  Case,  16146);  Tharington  v. 
Smith  (8  Wallace,  1);  U.  S.  v.  Rice  (4  Wheaton,  246);  Fleming  v.  Page  (9  Howard,  603); 
Cross  V.  Harrison  (16  Howard,  164);  De  Lima  v.  Bidwell  (182  U.  S.,  1);  Dooley  v. 
U.  S.  (182  U.  S.,  222);  Santiago  v.  Nogueras  (214  U.  S.,  260);  Leitensdorfer  v.  Webb 
(20  Howard,  176);  Handlin  v.  Wickliffe  (12  Wallace,  173);  Mrs.  Alexander's  Cotton 
(2  Wallace,  404);  The  Bark  Grapeshot  (2  Wallace,  129);  The  Venice  (2  Wallace,  258); 
New  Orleans  v.  The  Steamship  Co.  (20  Wallace,  387);  The  Sea  Lion  (5  Wallace-,  630); 
The  Reform  (3  Wallace,  617);  U.  S.  v.  Lane  (8  Wallace,  185);  Hall  v.  Coppell  (7  Wal- 
lace, 542);  Hamilton  v.  Dillin  (21  Wallace,  73);  Mitchell  v.  U.  S.  (21  Wallace,  350); 
Matthews  v.  McStea  (91  U.  S.,  7);  The  William  Bagaley  (5  Wallace,  377);  Harmony  v. 
Mitchell  (Fed.  Case,  6082);  Mitchell  v.  Harmony  (13  Howard,  115);  Mechanics'  and 
Traders'  Bank  v.  Union  Bank  (22  Wallace,  276);  Dean  v.  Nelson  (10  Wallace,  158); 
Coleman  -y.  Tennessee  (97  U.  S.,  509);, Dow  v.  Johnson  (100  U.  S.,  158);  Neely  v. 
Henkel  (180  U.  S.,  109);  Brown  v.  U.  S.  (8  Cranch,  110);  Planters'  Bank  v.  Union 
Bank  (16  Wallace,  483);  Gates  v.  Goodloe  (101  U.  S.,  612);  Coolidge  v.  Guthrie  (Fed. 
Case,  3185);  U.  S.  v.  Padelford  (9  Wallace,  531);  Lamar,  Executor,  v.  Brown  (92  U.  S., 
187);  Ford  v.  Surget  (97  U.  S.,  594);  Ex  Parte  Ortiz  (100  Fed.  Rep.,  955).  (These 
citations  were  compiled  by  the  Staff  Class,  Fort  Leavenworth,  Kans.,  1910-11.) 

2  See  the  Havana  (Cuba)  Slaughterhouse  case  where  Gen.  Brooke's  act  was  sustained. 
O'Reilly  de  Camara  v.  Brooke,  142  Fed.  Rep.,  858, 209  U.  S.,  45. 


WAR  I  c  8  a  (2)  (fc).  1065 

Civil  War  such  courts  were  not  unfrequeiitly  constituted  and  were 
commonly  designated  provost  courts.  )?.  2,  I4,  Feb.,  1S63;  15,  519, 
July,  1865.  Such  courts  had  no  jurisdiction  of  purely  military 
offenses  (i.  e.  offenses  which  the  Articles  of  War  make  cognizable  by 
court-martial),  and  were  therefore  not  properly  authorized  to  impose 
forfeitures  of  pay  or  other  strictly  military  punishments  upon  officers 
or  soldiers  of  the  Army.  R.  6,  635,  Dec,  1864;  8,  638,  10,  39  and  560, 
13,  55  and  11 4,  July  to  Dec,  I864.  These  courts  were  in  general 
resorted  to  as  substitutes  for  the  ordinary  poUce  courts  of  cities,  and 
their  jurisdiction  was  in  general  confined  to  cases  of  breaches  of  the 
peace  and  of  violation  of  such  civil  ordinances  or  military  regulations 
as  might  be  in  force  for  the  government  of  the  locality.*  R.  13,  392, 
Feb.,  1865. 

IC8a  (2)  (6).  Held  that  the  militarv  governor  of  a  hostile  city 
may  remove  for  cause  in  time  of  war  the  dulv  elected  alcaldes  and 
may  appoint  others.     C.  5873,  Feb.  17,  1899.  ^ 

^  Some  of  these  courts,  however,  took  cognizance,  in  the  course  of  their  existence 
of  cases  of  very  considerable  importance,  civil  as  well  as  criminal.  See  the  following 
General  Orders  establishing  or  relating  to  Provost  Courts  and  similar  tribunals:  G.  O. 
41,  Dept.  of  Virginia,  1863;  do.  45,  Dept.  of  the  Gulf,  1863;  do.  6,  77,  id.,  1864;  do.,  103, 
146,  Dept.  of  Washington,  1865;  do.,  39,  id.,  1866;  do.  102,  Dept.  of  the  South,  1865;  do, 
30,  38,  49, 68,  Dept.  of  S.  Carolina,  1865;  do.  37,  id.,  1866;  do.  31,  Dept.  of  the  Mississippi, 
1865;  do.  12,  Dept.  of  Arkansas,  1865;  do.  5,  Mil.  Div.  of  the  James,  1865;  do.  31,  First 
MU.  Dist.,  1867;  Circ,  Second  Mil.  Dist.,  May  15,  1867;  G.  0.29,  61,  Second  Mil. 
Dist.,  1868;  do.  4,  Fifth  Mil.  Dist.,  1869;  also  Gen.  Wool's  G.  O.  516  of  1847. 

While  the  majority  of  these  special  tribunals  were  confined  to  the  exercise  of  such 
functions  as  are  commonly  devolved  upon  police  or  justices'  courts,  their  authority 
when  empowered  for  the  purpose  by  a  competent  military  commander,  to  take  cog- 
nizance of  important  civil  actions  has  been  affirmed  by  the  Supreme  Court  of  the 
United  States  in  the  case  of  Mechanics'  &  Traders'  Bk.  v.  Union  Bk.,  22  Wall.,  276,  in 
which  a  "Provost  Court,"  established  at  New  Orleans  by  an  order  of  the  department 
commander,  of  May  1,  1862,  was  held  to  be  a  lawful  tribunal,  and  a  judgment  ren- 
dered by  it  in  an  action  for  the  recovery  of  $130,000,  money  borrowed  by  one  bank 
from  another,  was  recognized  as  legal.     See  this  case  also  in  25  La.  An.,  387. 

So,  the  authority  of  the  "Provisional  Court  of  Louisiana"  (which  succeeded  the 
"Provost  Court"  last  indicated,  and  was  established  by  the  President,  in  an  Execu- 
tive order  of  Oct.  20,  1862)  to  determine  a  cause  in  admiralty,  was  affirmed  by  the 
United  States  Supreme  Court  in  The  Grapeshot,  9  Wallace,  129,  and  later  its  juris- 
diction in  a  civil  action  on  a  mortgage  debt  was  recognized  by  that  tribunal  in  Burke 
V.  Miltenberger,  19  Wallace,  519.  And  see  the  same  case,  as  Burke  v.  Tregree,  in  22 
La.  An.,  629.  The  authority  of  the  same  court  to  take  cognizance  of  a  case  of  murder 
and  one  of  arson  (as  also  of  civil  controversies)  was  maintained  in  an  elaborate  opinion 
of  its  judge,  Hon.  C.  A.  Peabody  (in  1865),  in  the  cases  of  the  United  States  v.  Reiter  & 
Louis,  reported  in  13  Am.  Law  Reg.,  534. 

The  civil  jurisdiction  of  a  similar  war  court — the  "Commission"  established  by  the 
department  commander  in  Memphis  in  1863 — was  similarly  recognized  in  Heffer- 
man  v.  Porter,  6  Coldw.,  391.  And  as  to  the  full  authority  of  this  tribunal  as  a  substi- 
tute for  the  ordinary  civil  courts  of  the  locality,  see  also  State  v.  Stillman,  7  id.,  341. 
But  see,  contra,  Walsh  v.  Porter,  12  Heisk,  401. 

In  the  cases  thus  sustaining  the  action  of  special  tribunals  during  the  Civil  War,  the 
courts  in  general  refer  to  the  earlier  and  leading  case  of  Leitensdorfer  v.  Webb,  20 
Howard,  176,  in  which  was  affirmed  the  authority  of  the  courts  established  in  1846 
in  New  Mexico  as  a  part  of  the  system  of  civil  government  instituted  by  Gen.  Kearney, 
the  military  commander.  With  this  case  consult  also  United  States  v.  Rice,  4  WTieat- 
on,  254;  Cross  v.  Harrison,  16  Howard,  164. 

The  reasoning  upon  which  the  above-cited  later  rulings  is  based  is,  that  the  authority 
to  create  courts  with  a  civil  as  well  as  a  criminal  jurisdiction  in  a  conquered  country  in 
military  occupation  attaches  to  the  dominant  power  by  the  law  of  war  and  of  nations 
as  an  incident  to  the  power  to  establish  a  military  government;  that  it  is  not  only  the 
right  but  the  duty  of  the  conqueror  to  institute  such  courts  "for  the  security  of  per- 
sons and  property  and  for  the  administration  of  justice  " ;  and  that  when  during  the 
Civil  War  such  courts  were  created  by  commanding  generals — such  as  the  commanders 
of  separate  departments  or  armies — the  order  of  the  commander  was  to  be  presumed 
to  be  the  order  and  act  of  the  President. 


1066  WAR  I  c  8  a  (2)  (c), 

I  C  8  a  (2)  (c) .  Held,  when  military  government  is  maintained  within 
an  enemy's  country,  that  a  military  government  may  collect  duties, 
and  that  no  court  can  question  a  right  to  collect  such  duties.  G. 
6138,  Apr.  12,  1899. 

I  C  8  a  (2)  (c)  [1].  Contributions  of  money  exacted  from  the  enemy 
by  competent  military  authority,  being  justified  by  the  law  of  war 
and  conquest,*  held  that  a  tax  or  $5  per  bale,  levied  (in  1864)  by  the 
military  commander  at  New  Orleans,  Gen.  Canby,  upon  cotton 
brought  into  that  city,  and  applied  to  hospital,  sanitary,  and  charit- 
able purposes,  was  authorized  under  the  discretionary  power  with 
which  such  a  commander  was  properly  invested  in  time  of  war.^ 
R.  18,  668,  Mar.,  1866. 

I  C  8  a  (2)  id).  Held  that  when  the  United  States  occupies  hostile 
territory  and  places  in  charge  a  military  governor  he  may,  upon 
proper  cause,  deport  from  that  hostile  territory  persons  "as  a  men- 
ance  to  the  military  situation."     C.  10002,  Mar.  18,  1901. 

1  C  8  a  (3)  (a).  By  a  practice  dating  from  1847  ^  and  renewed  and 
firmly  established  during  the  Civil  War,*  mihtary  commissions  have 
become  adopted  as  authorized  tribunals  in  this  country  in  time  of  war. 
They  are  simply  criminal  war  courts,  resorted  to  for  the  reason  that 
the  jurisdiction  of  courts-martial,  creatures  as  they  are  of  statute,  is 
restricted  by  law,  and  can  not  be  extended  to  include  certain  classes  of 
offenses  which  in  war  would  go  unpunished  in  the  absence  of  a  pro- 
visional forum  for  the  trial  of  the  offenders.  Their  authority  is 
derived  from  the  law  of  war,^  though  in  some  cases  their  powers 
have  been  added  to  by  statute.®    There  competency  has  been  recog- 

*  Lewis  V.  McGuire,  3  Bush,  202;  Clark  v.  Dick,  1  Dillon,  8.  And  see  Maj.  Gen. 
Scott's  order  (G.  O.  395,  Hdqrs.  of  Army,  1847)  levying  assessments  upon  Mexican 
communities  for  the  support  of  the  military  government  and  occupation. 

2  See  Hamilton  v.  Dillm,  21  Wallace,  73. 

3  See  Maj.  Gen.  Scott's  G.  O.  20,  Hdqrs.  of  Army,  Tampico,  Feb.  19,  1847,  repub- 
lished "with  important  additions,"  in  G.  O.  190  and  287  of  the  same  year.  And  see 
the  following  orders  convening  military  commissions,  issued  by  Gen.  Scott:  G.  O. 
81,  83,  121,  124,  147,  171,  194,  215,  239,  267,  270,  273,  292,  334,  335,  380,  392,  1847;  and 
9,  1848,  Hdqrs.  of  Army.  Also  the  following  issued  by  Gen.  Taylor:  G.  O.  66,  106, 
112,  121,  of  1847;  and  the  following  issued  by  Gen.  Wool:  G.  O.  140,  179,  216,  463, 
476,  514,  of  1847. 

In  this  connection,  note  also  the  institution  by  Gen.  Scott  of  ''Councils  of  War'' — 
summary  courts  for  the  punishment  of  certain  violations  of  the  laws  of  war — as  exhib- 
ited in  G.O.,  181,  184,  and  372,  1847,  and  do.  35  and  41,  1848,  Hdqrs.  of  Army. 

"*  The  first  military  commission  of  the  Civil  War  is  believed  to  have  been  that  con- 
vened by  Maj.  Gen.  Fremont,  by  G.  O.  118,  Western  Dept.,  St.  Louis,  Sept.  2,  1861. 

«  See  G.  O.  100,  War  Dept.,  1863,  Sec.  I,  par.  No.  13;  do.  1,  Dept.  of  the  Missouri, 
1862;  do.  20,  Hdqrs.  of  Army,  1847;  United  States  v.  Reiter,  4  Am.  Law.  Reg.  (N.  S.), 
534;  State  v.  Stilhnan,  7  Coldw.,  341;  Hefferman  v.  Porter,  6  id.,  697. 

^  See  act  of  Mar.  3,  1863,  c.  75,  s.  30,  declaring  that,  in  time  of  war,  &c.,  murder, 
manslaughter,  robbery,  larceny,  and  other  specified  crimes,  when  committed  by 
persons  in  the  military  service,  shall  be  punishable  by  sentence  of  court-martial  "or 
military  commission,''^  &c. — an  enactment  repeated,  as  to  courts-martial,  in  the  58th 
article  of  war:  Also,  sec.  38  of  the  same  act  (rei^eated  in  sec.  1343,  R.  S,),  making 
spies  triable  by  general  court-martial  "or  military  commission"  and  punishable 
with  death.  See,  further,  act  of  July  2,  1864,  c.  215,  s.  1,  by  which  commanders  of 
departments  and  commanding  generals  in  the  field  were  authorized  to  carry  into  exe- 
cution sentences  imposed  by  military  commission  upon  guerrillas:  Also,  act  of  July  4, 
1864,  c.  253,  sees.  6  and  8  (not  now  in  force),  making  inspectors  in  the  Quartermaster 
Department  triable  and  punishable  by  sentence  of  court-martial  or  "military  commis- 
sion," for  fraud  or  neglect  of  duty,  as  also  other  employees  and  officers  of  that  depart- 
ment for  accepting  bribes  from  contractors,  &c.  Also  the  reconstruction  act  of  Mar. 
2,  1867,  c.  153,  s.  3,  by  which  commanders  of  military  districts  were  authorized  to 
convene  military  commissions  for  the  trial  of  certain  offenders. 


WAR  I  c  8  a  (3)  (h)  [1].  1067 

nized  not  only  in  acts  of  Congress,*  but  in  executive  proclamations, ^  in 
rulings  of  the  courts,^  and  in  the  opinions  of  the  Attorneys  General.* 
During  the  Civil  War  they  were  employed  in  several  thousand  cases ; 
more  recently  the}^  were  resorted  to  under  the  *' Reconstruction" 
act  of  1867;  and  still  later  one  of  these  courts  has  been  convened  for 
the  trial  of  Indians  as  offenders  against  the  laws  of  war.*  P.  4i ,  12-18, 
May,  1890;  C.  10750,  Aug.  10,  1901;  IIS4I,  Jan.  16, 1902;  17328, 
Jan.  4,  1905;  23136,  Apr.  24,  1908. 

I  C  8  a  (3)  (6)  [1].  The  jurisdiction  of  the  military  commission  is 
derived  primarily  and  mainly  from  the  law  of  war;  that  special 
authority  has  in  some  cases  been  devolved  upon  it  by  express  legis- 
lation has  already  been  noticed.  Military  commissions  are  author- 
ized by  the  laws  of  war  to  exercise  jurisdiction  over  two  classes  of 
offenses,  committed,  whether  by  civilians  ®  or  military  persons,  either 
(1)  in  the  enemy's  country  during  its  occupation  by  our  armies  and 
while  it  remains  under  military  government,  or  (2)  in  a  locality, 
not  within  the  enemy's  country  or  necessarily  within  the  theater  of 
war,  in  which  martial  law  has  been  established  by  competent 
authority.^  The  two  classes  of  offenses  are :  I.  Violations  of  the  laws 
of  war.  II.  Civil  crimes,  which,  because  the  civil  authority  is  super- 
seded by  the  military  and  the  civU  courts  are  closed  or  their  functions 
suspended,  can  not  be  taken  cognizance  of  by  the  ordinary  tribunals. 
In  other  words,  the  military  commission,  oesides  exercising  under 
the  laws  of  war  a  jurisdiction  of  offenses  peculiar  to  war,  may  act 
also  as  a  substitute,  for  the  time,  for  the  regular  criminal  judicature 
of  the  State  or  district.  R.  2,  2^2,  Apr.,  1863;  3,  Ifl4,  Aug.,  1863; 
7,  20,  4I8,  Jan.  and  Mar.,  1864;  8,  153,  529,  Mar.  and  June,  1864; 
20,  502,  Mar.,  1866. 

1  C  8  a  (3)  Q))  [2].  A  military  commission,  whether  exercising  a 
jurisdiction  strictly  under  the  laws  of  war  or  as  a  substitute  in  time 
of  war  for  the  local  criminal  courts,  may  take  cognizance  of  offenses 
committed,  during  the  war,  hefore  the  initiation  of  the  military  gov- 
ernment or  martial  law,  but  not  then  brought  to  trial.  R.  19,  390, 
Jan.,  1866.  So  lield  that  an  enemy,  taken  prisoner  of  war,  was  triable 
by  a  military  commission  for  a  violation  of  the  laws  of  war  committed 
before  his  capture.^    R.  8,  529,  June,  I864. 

^  See  the  acts  cited  in  last  note,  together  with  sees.  1199,  1343,  and  1344,  Rev. 
Sts.,  as  also  the  appropriation  acts  of  July  24,  1876,  Nov.  21, 1877,  June  18, 1878,  June 
23,  1879,  and  May  4,  1880,  in  which,  among  other  items  for  the  Pay  Department, 
appropriation  is  made  "for  compensation  for  citizen  clerks  and  witnesses  attending 
upon  courts-martial  and  military  commissions." 

2  See  the  proclamations  of  Sept.  24,  1862,  and  Apr.  2,  1866. 

3  Ex  parte  Vallandigham,  1  Wall.,  243;  In  the  matter  of  Martin,  45  Barb.,  146;  State 
V.  Stillman,  7  Coldw.,  341.  In  the  last  case  the  court  say:  *'A  military  commission  isa 
tribunal  now  (1870)  as  well  known  and  recognized  in  the  laws  of  the  United  States  as 
a  court-martial.  It  has  been  "recognized  by  the  executive,  legislative,  and  judicial 
departments  of  the  Government  of  the  United  States." 

^See5  0p.  Atty.Gen.,  55;  11  id.,  297;  12  id.,  332;  13  id.,  59;  14  id.,  249. 
.  *  The  case  of  Modoc  Indians  tried  by  military  commission  in  July,  1873  (G.  C.  M. 
O.  32,  War  Dept.,  1873).     See  14  Op.  Atty.  Gen.,  249. 

^  The  general  orders  issued  during  the  Civil  War  contain  nearly  150  cases  of  women 
tried  by  military  commissions. 

^Note,  in  this  connection.  Chief  Justice  Chase's  description  of  the  jurisdiction  exer- 
cised under  military  government  and  martial  law,  as  distmguished  from  that  conferred 
by  the  military  law  proper — in  Ex  parte  Milligan,  4  Wallace,  142, 

*  But  when  an  officer  or  soldier  of  the  enemy's  army  is,  upon  capture,  charged  before 
a  military  commission  with  a  violation  of  the  laws  of  war,  the  proof  shoula  of  course 
be  clear  that  the  act  committed  was  as  charged,  i.  e.,  was  not  a  legitimate  act  of  war. 


1068  WAB  I  c  8  a  (3)  {}))  [3]. 

I  C  8  a  (3)  (&)  [3].  As  to  the  special  statutory  jurisdiction  with  which 
the  military  commission  has,  in  certain  cases,  been  invested,  the  acts 
of  Congress  by  which  this  has  been  conferred  and  defined  have  already 
been  cited.  Of  these,  the  provision  in  the  act  of  March  3,  1863, 
hj  which  a  jurisdiction,  concurrent  with  that  of  the  court-martial,  is 
given  to  this  tribunal  in  cases  of  spies,  is  the  only  one  now  in  force, 
and  is  embodied  in  section  1343,  R.  S. 

I  C  8  a  (3)  (6)  [4].  The  jurisdiction  of  a  military  commission  con- 
vened under  the  law  of  war  may  be  exercised  up  to  the  date  of  a  peace 
agreed  upon  between  the  hostile  parties  or  the  declaration  by  the 
competent  authority  of  the  termination  of  the  war  status.^  R.  20, 
484,  Mar.,  1866;  C.  6003,  Mar.  10,  1899;  6286,  Apr.  13,  1899;  6306, 
Apr.  24,  1899;  15057,  Aug.  3,  1903. 

1  C  8  a  (3)  (h)  [5].  Under  the  ''Reconstruction"  act  of  March  3, 
1867,  in  section  3  of  which  the  commanders  of  the  military  districts 
constituted  thereby  were  empowered,  in  their  discretion,  ''to  organize 
military  commissions,"  in  lieu  of  the  "local  civil  tribunals,"  for  the 
trial  and  punisliment  of  "all  disturbers  of  the  public  peace  and  crimi- 
nals," 2 — it  was  held  by  the  Judge  Advocate  General  as  follows: 

That  the  military  commissions  convened  under  the  act  would 
properly  be  governed,  as  to  their  form  of  procedure,  by  the  rules  and 
forms  governing  military  commissions  under  the  laws  of  war  wliile, 
as  to  their  jurisdiction  and  power  of  punisliment,  they  would  in 
general  properly  be  regulated  by  the  local  statutes  governing  the 
courts  for  which  they  were  substitutes.     R.  29,  4O6,  Nov.,  1869. 

That,  being  substitutes  for  the  State  criminal  courts,  they  were 
authorized  to  take  cognizance  of  offenses  committed  (but  not  brought 
to  trial)  before  the  date  of  the  act,  equally  with  those  committed  after 
such  date.     R.  25,  424,  Mar.,  1868;  26,  234,  Nov.,  1867. 

That  cases  of  soldiers  offending  against  the  criminal  law,  whose 
offenses  were  not  within  the  jurisdiction  of  a  court-martial,  might 
legally  be  brought  to  trial  before  military  commissions  convened  under 
the  act.     R.  26,  487,  Mar.,  1868. 

That  commissions  ordered  under  this  act,  being  in  lieu  of  the  State 
tribunals,  could  not  assume  to  take  cognizance  of  a  case  within  the 
jurisdiction  of  a  court  of  the  United  States  in  operation  in  the  district. 
R.  28,  612,  May,  1869. 

That  sentences  duly  adjudged  by  commissions  convened  under  this 
statute,  and  which  had  been  duly  and  finally  approved  by  the  com- 
petent authority  (see  sec.  4  of  the  statute)  might  legally  be  executed 
prior  to  the  passage  of  the  act  admitting  to  representation  in  Congress 
the  State  in  which  the  offense  was  committed;  but  that  such  sen- 
tences, not  carried  into  effect  (or  of  which  the  execution  had  not  been 
entered  upon)  at  that  date,  could  not  thereafter  legally  be  enforced.^ 
And  held,  generally,  that  all  proceedings  of  military  commissions  which 
remained  pending  or  incomplete  at  such  date  became  thereupon  ter- 

*  See  14  Op.  Atty.  Gen.,  250,  where  this  principle  is  applied  to  an  Indian  war.' 
See  also  5  id.,  58. 

2  The  constitutionality  of  this  act  and  the  legality  of  the  institution  under  it  of 
military  commissions  were  affirmed  by  Atty.  Gen.  Hoar  in  13  Op.,  59-67. 

2  Compare  United  States  v.  Tynen,  11  Wallace,  88,  where  it  is  held  that  "there 
can  be  no  legal  conviction,  nor  any  valid  judgment  pronounced  upon  conviction, 
imless  the  law  creating  the  offense  be  at  the  time  in  existence."  And  to  a  similar 
effect,  see  United  States  v.  Finlay,  1  Ab.,  U.  S.  R.,  364. 


WAR  I  c  8  a  (3)  (c)  [1].  1069 

minated.  R.  27,  89,  90,  93,  July,  1868;  28,  51,  Aug.,  1868;  29,  620, 
Jan.,  1870,  30,  181,  Mar.,  1870;  C.  15057,  Aug.  4,  1908. 

I  C  8  a  (3)  (c)  [1].  In  a  State  or  district  where  military  govern- 
ment or  martial  law  has  not  prevailed,  or  ha\dng  prevailed  for  a  time, 
has  ceased  to  be  exercised,  and  the  regular  criminal  courts  are  open  and 
in  operation,  a  military  commission  can  not  be  empowered  to  assume 
jurisdiction  of  a  public  offense,  although  the  nation  be  still  involved 
m  war.^  E.  9,  657,  Sept.,  1864;  12,  422,  June,  1865;  I4,  382,  Apr., 
1865,  16,  298,  June,  1865;  30,  34,  July,  1869.  A  fortiori,  where,  at 
the  date  of  tlie  offense,  there  was,  properly,  no  state  of  war  in  which 
the  nation  was  involved  with  an  enemy.  Thus  held  that  a  military 
commission  could  not  legally  be  convened  for  the  trial  of  Indians,  for 
violations  of  the  laws  of  war,  on  accounts  of  thefts,  robberies,  and 
murders  committed  by  them  upon  incursions  made  into  the  State  of 
Texas,  where  said  Indians  (unlike  the  Modocs)  were  mere  raiders, 
with  whose  tribe,  as  such,  the  United  States  was  not  engaged  in  war, 
and  whose  crimes,  therefore,  were  not  committed  flagrante  hello.^ 
R.  36,  221,  Jan.,  1875;  C.  10750,  June  29,  1901. 

I  C  8.  a  (3)  (c)  [IJ  [a].  Where  the  State  was  not  under  martial  law 
or  military  government,  the  fact  that  the  offense  was  committed  by  a 
prisoner  of  war  at  a  prison  camp  (within  the  State)  for  the  confinement 
of  prisoners  of  war,  and  guarded  by  Federal  troops,  was  lield  insuffi- 
cient to  give  a  military  commission  jurisdiction  of  the  case.  R.  15, 
358,  June,  1865.  But  held  that  the  mere  fact  of  the  appointing  by  the 
Executive  of  a  '^ provisional  governor"  for  an  insurrectionary  State 
in  June,  1865,  prior  to  the  date  of  the  proclamation  (of  Apr.  2,  1866) 
declaring  the  war  at  an  end  in  that  State,  and  while  the  territory  of 
the  same  still  remained  in  military  occupation,  did  not  operate  to  oust 
mihtary  commissions  of  jurisdiction  of  criminal  offenses  committed 
mthin  the  State.^     R.  16,415,  July,  1865. 

rC  8  a  (3)  (c)  [2].  A  military  commission,  convened  for  the  trial  of 
offenses  under  the  law  of  war,  has  no  jurisdiction  of  civil  suits  or  pro- 
ceedings, either  based  upon  contract  or  brought  to  recover  damages 
on  account  of  private  transactions  or  personal  injuries.*  R.  3,  190, 
July,  1863;  5,  86,  Oct.,  1863;  9,  205,  May,  1864;  H,  ^57,  Apr.,  1865. 

1  C  8  a  (3)  (c)  [3].  It  is  a  further  restriction  upon  the  jurisdiction  of 
the  mihtary  commission  that,  except  where  it  may  be  invested  by 
statute  with  a  jurisdiction  concurrent  with  that  of  courts-martial  (as 
by  sees.  30  and  38  of  the  act  of  Mar.  3,  1863),  its  authority  can  not 
be  extended  to  the  trial  of  offenses  which  are,  specifically  or  m  general 
terms,  made  cognizable  and  punishable  by  courts-martial  by  the 
Articles  of  War  or  other  statute.     In  repeated  instances  during  the 

^  See  the  leading  case  of  Ex  parte  Milligan,  4  Wallace,  1;  also  Milligan  v.  Hovey,  3 
Bissell,  13;  In  re  Murphy,  Woolworth,  143;  Devlin  v.  United  States,  12  Ct.  Cls.,  271; 
12  Op.  Atty.  Gen.,  128. 

2  As  to  the  nature  of  the  hostility  which  may  properly  bring  Indians  ''within  the 
description  of  public  enemies,"  compare  13  Op.  Atty.  Gen.,  471.  That  a  detached 
band  of  marauding  Indians  was  not  an  "enemy"  in  the  sense  of  the  act  of  Mar.  3, 
1849  (sec.  3483,  R.  S.),  providing  for  the  makmg  good  of  damage  sustained  by  the 
capture  or  destruction  of  certain  property  "by  an  enemy,"  was  held  by  the  Supreme 
Court  in  Stuart  v.  United  States,  18  Wallace,  84, 

^  See  Belding  v.  State,  25  Ark.,  315.  And  compare  13  Op.  Atty.  Gen.,  65  and  66; 
Coleman  v,  Tennessee,  7  Otto,  516. 

*  See  State  v.  Stillman,  7  Cold w.,  341;  G.  O.  1,  De^i.  of  the  Missouri,  1862.  As  to 
the  civil  jurisdiction  of  special  courts  and  commissions  instituted  during  the  Civil  War. 


1070  WAR  I  c  8  a  (3)  (d)  [1]. 

Civil  War  the  proceedings  of  military  commissions,  in  cases  in  which 
these  tribunals  had  improperly  assumed  jurisdiction  of  offenses  legally 
triable  by  courts-martial  only  were  recommended  by  the  Judge  Advo- 
cate General  to  be  disapproved.  R.  468,  482,  Dec,  1862;  7,  UO, 
4.86,  Apr.,  1864;  9,  236,  June,  1864;  15,  873,  June,  1965;  16,  73, 
Apr.,  1865;  19,  63,  Oct.,  1865.^ 

I  C  8  a  (3)  {d)  [1].  Except  in  so  far  as  to  invest  military  commis- 
sions in  a  few  cases  with  a  special  jurisdiction  and  power  of  punish- 
ment/ the  statute  law  has  failed  to  define  their  authority,  nor  has  it 
made  provision  in  regard  to  their  constitution,  composition,  or  pro- 
cedure. In  consequence,  the  rules  which  apply  in  these  particmars 
to  general  courts-martial  have  almost  uniformly  been  applied  to 
military  commissions.  The^y  have  ordinarily  been  convened  by  the 
same  officers  as  are  authorized  by  the  Articles  of  War  to  convene 
such  courts;^  the  accusations  investigated  by  them  have  been  pre- 
sented in  charges  and  specifications  similar  m  form  to  those  enter- 
tained by  general  courts;  their  proceedings  have  been  similar  and 
similarly  recorded;  and  their  sentences  have  been  similarly  passed 
upon  and  executed.  R.  I.  453,  465,  Dec,  1862;  2, 27,  83, 563,  Feb.  to 
June,  1863;  3,  428,  Aug.,  1873;  5,  95,  Oct.,  1863;  7,  556,  Apr.,  1864; 
8,  111,  Mar.,  1864;  13,  392,  Feb.,  1865;  29,  39,  June,  1869.  Their 
composition  has  also  been  the  same,  except  that  the  minimum  of  mem- 
bers has  been  fixed  by  usage  at  three.  U.  15,  149,  Apr.,  1865.  They 
have  generally  also  l)een  supplied  with  a  judge  advocate  as  a  prose- 
cuting officer.  A  military  commission  constituted  with  less  than 
three  members,  or  which  proceeded  to  trial  with  less  than  three 
members,  or  which  was  not  attended  by  a  judge  advocate,  would  be 
contrary  to  precedent.^  R.  9,  591,  Sept.,  1864;  11,  479,  Feb.,  1865; 
13,  286,  Jan.,  1865;  15,  204,  May,  1865;  C.  17328,  Jan.  4,  1905. 

In  view  of  the  analogy  prevailing  and  sanctioned  between  these 
bodies  and  courts-martial,  held  that  mihtary  commissions  would 
properly  be  sworn  like  general  courts-martial  {R.  11,  111,  Nov., 
1864);  that  the  right  of  challenging  their  members  should  be  afforded 
to  the  accused;  that  two-thirds  of  their  members  should  concur  in 
death  sentences  (R.  23,  650,  Aug.,  1867) ;  and  that  the  two  years' 
limitation  would  properly  be  applied  to  prosecutions  before  them. 
R.  9,  657,  Sept.,  I864. 

I  C  8  a  (3)  (d)  [2].  Held  that  the  proceedings  of  a  militarv  com- 
mission should  be  completed  by  the  action  at  the  end  thereof  of  the 
officer  who  convened  the  commission  or  by  his  successor  in  command, 
the  mode  of  procedure  being  the  same  as  is  followed  by  general  courts- 
martial.     0.  5292,  Nov.  <?,  1898. 

1  C  8  a  (3)  (d)  [3].  During  the  Civil  War  a  very  great  number  and 
variety  of  offenses  against  the  laws  and  usages  of  war — charged  either, 
generally,  as  *' violation  of  the  laws  of  war,"  or,  specifically,  by  their 

^  See  statutes  cited  in  notes  to  preceding  section. 

2  A  military  commission  was  appointed  to  meet  at  Calamba,  P.  I.,  in  1900.  It 
tried  cases  which  were  awaiting  trial  in  that  district  without  the  cases  being  for- 
mally referred  to  the  commission  by  the  convening  authority.  These  cases  are  pub- 
lished in  G.  O.  No.  4,  Headquarters  Division  of  the  Philippines,  series  1900. 

^  In  the  absence,  however,  of  any  statutory  provision  on  the  subject,  a  commission 
which  departed  from  the  general  usage  ki  any  of  these  respects  would  not  necessarily 
be  held  to  be  an  illegal  tribimal. 


WAR  I  c  8  a  (3)  (d)  [4].  1071 

particular  names  or  descriptions — were  passed  upon  and  punished 
by  military  commissions.  Of  these  some  of  the  prmcipal  (committed 
mostly  by  civilians)  were  as  follows:  Unauthorized  trading  or  com- 
mercial intercourse  with  the  enemy;  unauthorized  correspondence 
with  the  enemy:  blockade  running;  mail  carrying  across  the  lines; 
drawing  a  bill  01  exchange  upon  an  enemy,  or  by  an  enemy  upon  a 
party  in  a  northern  city;^  dealing  in,  negotiating,  or  uttering  Con- 
federate securities  or  money ;^  manufacturing  arms,  etc.,  for  the 
enemy;  furnishing  to  an  enemy  articles  contraband  of  war;  dealing 
in  such  articles  in  violation  01  military  orders;  publicly  expressing 
hostility  to  the  United  States  Government  or  sympathy  with  the 
enemy-  coming  within  the  lines  of  the  army  from  the  enemy  without 
authority;  violating  a  flag  of  truce;  violation  of  an  oath  of  allegiance, 
or  of  an  amnesty  oath ;  violation  of  parole  by  a  prisoner  of  war;  aiding 
prisoner  of  war  to  escape ;  unwarranted  treatment  of  Federal  prison- 
ers of  war;  burning,  destroying,  or  obstructing  railroads,  bridges, 
steamboats,  etc.,  used  in  military  operations;  cutting  telegraph  wires 
between  military  posts;  recruiting  for  the  enemy  within  the  Federal 
lines;  engaging  m  ''guerrilla"  or  partisan  warfare;  assisting  Federal 
soldiers  to  desert;  resisting  or  obstructing  an  enrollment  or  draft;  im- 
peding enlistments ;  violating  orders  in  regard  to  selling  liquor  to  sol- 
diers or  other  military  orders  of  police  in  a  district  under  military 
government;  attempt  without  success  to  aid  the  enemy  by  transport- 
ing to  him  articles  contraband  of  war;  conspiracy  by  two  or  more  to 
Adolate  the  laws  of  war  by  destroying  life  or  property  in  aid  of  the 
enemy.  R.  2,  lU,  Apr.,  1863;  3,  4OI,  689,  649,  Aug.  and  Sept.,  1863; 
4,  320,  Nov.,  1863;  5,  36,  Sept.,  1863;  590,  Jan.,  1864;  6,  20,  Jan., 
1864;  7,  41s,  Mar ,  1864;  8,  529,  June,  1864;  9,  149,  202,  225,  481, 
524,  535,  May  to  Aug.,  1864;  10,  567,  Nov.,  1864;  H,  4-73,  513,  Feb. 
and  Mar.,  1865;  13,  125,  Dec,  1864,  and  675,  June,  1865;  16,  446, 
Aug.,  1865;  21,  101,  Dec,  1865,  and  280,  Mar.,  1866,  etc 

I  C  8  a  (3)  {d)  [4].  Of  the  ordinary  crimes  taken  cognizance  of 
under  similar  circumstances  by  these  tribunals,  the  most  frequent 
were  homicides,  and  after  these,  robbery,  aggravated  assault  and  bat- 
tery, larceny,  receiving  stolen  property,  rape,  arson,  burglary,  riot, 
breach  of  the  peace,  attempt  to  bribe  public  officers,  embezzlement 
and  misappropriation  of  public  money  or  property,  defrauding  or  at- 
tempting to  defraud  the  United  States,  etc.  R.  7,  4^8,  Mar.,  1864; 
8, 194, 529,  Apr.  and  June,  1864;  U,  40,  Jan.,  1865;  15, 281,  May,  1865; 
18,  525,  Jan.,1866;19,319,and390,Jan.,1866;21,225,  Feb.,  1866;22, 
116,  Aug.,  1866;  27,  423,  Dec,  1868,  and  522,  Feb.,  1869;  29,  157,  233, 
Aug.,  1869;  30,  380,  638,  May  and  Sept.,  1870,  etc 

I  C  8  a  (3)  (d)  [5].  Not  unfrequently  the  crime,  as  charged  and 
found,  was  a  combinatioj:i  of  the  two  species  of  offenses  above  indi- 
cated. As  in  the  case  of  the  alleged  killing,  by  shooting  or  unwar- 
rantably harsh  treatment,  of  officers  or  soldiers,  after  they  had  sur- 
rendered, or  while  they  were  held  in  confinement  as  prisoners 
of  war;  of  which  offenses  persons  were  in  several  cases  during  the 
Civil  War  convicted  by  military  commissions  under  the  charge  of 

1  See  Britton  v.  Butler,  9  Blatcli.,  457;  Williams  v.  Mobile  Sav.  Bk.,  2  Woods,  501; 
Woods  V.  Wilder,  43  N.  York,  164;  Lacy  v.  Sugarman,  12  Heisk.,  354. 

2  See  Horn  v.  Lockhart,  17  Wallace,  580. 


1072  WAR  I  c  8  a  (3)  (e). 

''murder,  in  violation  of  the  laws  of  war."  ^  R.  7,  360,  Mar.,  1864; 
17,  455,  and  19,  221,  Oct,  1865;  20,  650,  May,  1866. 

I  C  8  a  (3)  (e).  Except  in  a  case  of  a  spy  whose  sentence  must  be 
death  (sec.  1343,  R.  S.),  the  discretion  of  the  military  commission  in 
the  imposition  of  sentence  is  not  in  terms  restricted  or  defined  by  the 
existing  law.  R.  7,  62,  Jan.,  186 4..  The  sentence,  however,  should 
award  a  criminal  punishment;  a  judgment  of  debt  or  damages,  on  con- 
viction of  a  crimmal  offense,  would  be  irregular  and  properly  disap- 
proved. R.  3,  190,  July,  1863.  Where  a  military  commission  was 
acting  under  the  reconstruction  laws,  practically  as  a  substitute  for  a 
State  criminal  court,  held  that  it  should,  in  general,  in  determining 
the  proper  measure  of  punishment  to  be  inflicted,  take  into  considera- 
tion the  State  statute  law,  if  any,  prescribing  the  penalty  or  penalties 
for  the  offense.2    R.  29,  4O6,  Nov.,  1869;  G.  12397,  Apr.  10,  1902. 

I  C  8  a  (4).  Held  that  after  the  declaration  of  peace  the  rule  of  hos- 
tile occupation  can  no  longer  be  enforced  in  Porto  Rico,  as  the  treaty 
of  peace  assumes  that  the  ordinary  criminal  courts  will  continue  to 
exist.  But  held  that  if  these  courts  can  not  be  relied  upon  to  suppress 
crime  the  President  has  the  power  to  appoint  provisional  courts  with 
competent  jurisdiction  over  such  offenses  to  continue  until  Congress 
has  provided  a  system  of  government  for  Porto  Rico.  C.  6003,  Mar. 
9,  1899;  6286,  Apr.  13,  1899. 

I  C  8  b.  A  government  that  may  have  been  established  under  mili- 
tary occupation  over  territory  that  may  have  been  acquired  by  con- 
quest or  treaty  may  continue  until  Congress  shaU  have  made  other 
provision,  and  is  not  necessarily  terminated  by  a  treaty.  C.  25629, 
Sept.  30,  1909. 

I  C  8  c  (1).  The  treaty  between  the  United  States  of  America  and 
the  Republic  of  Cuba  of  May  22,  1903,  in  article  3,  provides  that: 
"The  Government  of  Cuba  consents  that  the  United  States  may 
exercise  the  right  to  intervene  for  the  preservation  of  Cuban  inde- 
pendence, the  maintenance  of  a  government  adequate  to  the  pro- 
tection of  life,  property,  and  individual  liberty,  and  for  discharging 
the  obligations  with  respect  to  Cuba  imposed  by  the  treaty  of  Paris 
on  the  United  States,  now  to  be  assumed  and  undertaken  by  the 
Government  of  Cuba"  (33  Stat.  2248).  Held  that  the  treaty  con- 
taining this  clause  was  made  under  the  authority  of  the  United 
States  and  in  the  manner  prescribed  in  the  Constitution  and  is  there- 
fore a  part  of  ''the  supreme  law  of  the  land."  Held  further  that 
the  duty  of  intervention  described  above  is  primarily  an  executive 

1  See  G.  C.  M.  0.  607,  War  Dept.,  1865;  do.,  153,  id.,  1866.  A  more  recent  illustra- 
tion was  the  principal  offense  of  the  Modoc  Indians  (tried  by  military  commission  in 
July,  1873),  which,  as  a  treacherous  killing  of  an  enemy  during  a  truce,  was  charged  as 
"murder  in  violation  of  the  laws  of  war."     (G.  C.  M.  O.  32,  War  Dept.,  1873.) 

2  Except  where  the  death  sentence  was  pronounced,  the  punishment  adjudged  by 
military^  commissions  during  the  civil  war  was  in  the  great  majority  of  cases, 
an  imprisonment  for  a  certain  term  or  ' '  till  the  end  of  the  war. ' '  Fines  were  sometimes 
imposed  and  a  sending  beyond  the  lines  of  the  United  States  forces  was  not  infrequent. 
A  confiscation  of  property  was  also  occasionally  adjudged.  In  many  instances,  in  lieu 
of  any  punishment,  it  was  directed  or  recommended  by  the  commission  that  the 
accused  be  required  to  take  an  oath  of  allegiance,  or  give  a  parole,  and  in  some  cases 
also  to  give  a  bond  for  future  loyal  behavior. 


WAR  I  c  8  c  (i)  (a),  1073 

duty/  and  that  any  duties  which  in  the  course  of  its  performance 
devolve  upon  other  departments  of  the  Government  are  collateral 
and  secondaiy,  and  are  subordinate  in  importance  and  obligation 
to  those  which  devolve  upon  the  Executive.     C.  20396,  Sept  15, 1906. 

I C  8  c  (1)  (a).  Held  that  the  exclusively  executive  character  of  the 
duty  of  intervention  with  which  the  United  States  is  charged  in  article 
3  of  the  treaty  between  the  United  States  and  the  Republic  of  Cuba 
is  indicated  by  the  several  steps  which  it  may  be  found  necessary  to 
take  in  the  performance  of  that  duty.  Thus :  If  an  insurrectionary- 
movement  snould  come  into  being  on  the  island  of  Cuba  with  which 
the  Cuban  Government  was  powerless  to  deal,  and  such  condition 
should  be  made  known  to  the  Pr^ident  of  the  United  States,  either 
as  the  result  of  his  own  observation  or  of  representations  made  to 
him,  or  upon  admission  by  the  Cuban  Government  that  it  had 
exhausted  its  powei-s  and  was  unable,  by  its  own  agencies  and  instru- 
mentalities, to  maintain  order  in  the  island,  held  that  the  duty  of 
intervention,  with  a  view  to  the  establishment  and  maintenance  of 
public  order,  will  have  accrued.^     C.  20396,  Sept.  15,  1906. 

I C  8  c  (1)  (b).  Held  that  should  the  condition  described  in  article  3 
of  the  treaty  between  the  United  States  and  Cuba  obtain,  and  inter- 
vention by  the  United  States  become  necessary,  the  first  steps 
would  be  political  and  advisory.  The  Government  and  people  of 
the  island  may  be  officially  notified  of  the  power  and  duty  of  the 
Executive  under  the  treaty,  and  negotiations  may  be  undertaken 
with  a  view  to  the  restoration  of  order  by  pacific  methods,  a  resort 
to  good  offices,  compromise,  or  redress  of  grievances.  Should  these 
methods  fail,  however,  the  next  steps  in  execution  will  consist  of 
the  issue  of  a  proclamation  by  the  President  calling  upon  all  persons 
composing  the  insurrectionary  combinations  to  disperse  and  retire 
peaceably  to  their  respective  abodes  within  a  specific  date  from  the 
date  of  issue  of  such  proclamation.  Assuming  the  issue  of  such  a 
proclamation,  it  will  then  become  necessary  for  the  President  to 
employ  the  land  and  naval  forces  of  the  United  States  in  the  restor- 
ation of  order  in  the  island  and  in  the  removal  of  opposition  to  the 
execution  of  the  laws.  A  forcible  uprising  becomes,  in  virtue  of 
article  3  of  the  above  treaty,  and  the  fact  that  the  Cuban  consti- 
tution itself  contains  the  treaty  provisions  above  referred  to,  author- 
izing intervention  by  the  United  States,  a  forcible  resistance  to  the 

^  The  duty  of  suppressing  insurrectionary  movements  has  in .  the  past  devolved 
upon  the  Executive  department.  Thus:  President  Washington  issued  a  proclama- 
tion on  Aug.^  7,  1794,  calling  upon  those  engaged  in  the  "Whisky  Insurrection"  to 
retire  to  their  homes.  President  Pierce  similary  issued  a  proclamation  on  Feb.  11, 
1856,  on  the  occasion  of  the  disturbances  in  the  Territory  of  Kansas.  Similarly, 
President  Cleveland  issued  a  proclamation  on  Feb.  9,  1886,  upon  the  occasion  of  an 
insurrectionary  movement  in  Washington  Territory,  in  which  he  gave  the  evil  dis- 
posed but  one  day  to  disperse. 

Similarly,  upon  at  least  two  occasions,  the  last  in  1902,  the  President  has  inter- 
vened on  the  Isthmus  of  Panama  and  has  used  the  land  and  naval  forces  to  maintain 
freedom  of  transit  imder  article  35  of  the  treaty  of  Dec.  12,  1846,  with  Colombia.  No 
Executive  proclamation  was  issued  in  either  case,  and  the  intervention  was  accom- 
plished in  the  operation  of  instructions  communicated,  in  the  name  of  the  President 
by  the  Secretary  of  the  Navy,  to  the  commanding  officer  of  the  naval  forces  in  the 
Carribean  Sea.  In  both  cases  the  action  taken  by  the  President  was  reported  to 
Congress  under  the  method  prescribed  by  the  Constitution. 

2  Act  of  Mar.  2,  1901,  31  Stats.  897. 

31106°— 12 68 


1074  WAR   I   C   9. 

authority  of  the  United  States,  and  brings  the  matter  within  the 
operation  of  paragraph  14,  section  8,  Article  I,  of  the  Constitution, 
which  authorizes  Congress  ''to  provide  for  calling  forth  the  militia 
to  execute  the  laws  of  the  United  States,  suppress  insurrection,  and 
repel  invasions."  The  land  and  naval  forces  of  the  United  States 
may  be  employed,  under  section  5298,  R.  S.,  in  order  that  Cuban 
independence  may  be  preserved,  and  that  a  government  adequate 
to  the  protection  of  life,  property,  and  individual  liberty  may  be 
made  secure.     0.  I4I48,  Dec.  28,  1911;  20396,  Sept  15,  1906. 

ICQ.  Two  soldiers  of  the  United  States  Army  having  been  seized 
and  delivered  across  the  lines  to  the  enemy  hj  a  party  of  civilians  in 
a  portion  of  one  of  the  insurrectionary  States  m  the  occupation  of  the 
Federal  forces,  an  equal  number  of  citizens  of  the  district  were  ordered 
by  the  commanding  general  to  be  arrested  and  held  till  the  offenders, 
who,  meanwhile,  had  taken  refuge  with  the  enemy,  should  be  sur- 
rendered for  trial.  Held  that  such  an  act  of  retaliation  was  warranted 
by  the  laws  and  usages  of  war.     R.  9,  210,  June,  1864- 

I  C  10.  The  use  of  flags  of  truce  by  the  enemy  during  the  Civil  War 
was  recognized  as  a  belligerent  right. ^  But  the  admission  by  flag  of 
truce  within  the  Hnes  of  the  United  States  Army  in  time  of  war  of 
persons  coming  from  the  Hnes  of  an  enemy  can  not  entitle  such  per- 
sons to  immunity  from  subsequent  inquiry  into  their  character  and 
business,  or  from  restraint  and  detention  upon  reasonable  grounds  of 
suspicion  appearing  against  them.  Moreover  a  flag  of  truce  does  not 
operate  as  a  safe-conduct,  allowing  the  party  admitted  under  it  a  free 
passage  through  the  territory  or  a  dispensation  from  the  legal  effects 
of  war,  but  affords  him  a  merely  temporary  protection  not  to  be 
continued  after  the  immediate  mission  of  the  flag  has  been  accom- 
pUshed.  R.  5,  198,  Oct.,  1863;  6,  434,  Oct.,  1864;  8,  612,  June,  I864. 
So  held  that  a  person  who,  during  the  War  of  the  Rebellion,  availed 
himseK  of  a  flag  of  truce  to  enter  our  lines  for  an  iUegal  purpose,  was 
in  no  degree  protected  by  the  flag  from  liability  to  arrest  upon  his 
purpose  becoming  apparent,  or  from  amenabihty  to  trial  and  punish- 
ment for  any  overt  act  in  violation  of  the  laws  of  war.^  R.  19,  67 3 j 
July,  1866. 

I  C  11  a.  The  taking  of  the  Hfe  of  a  prisoner  of  war,  when  not  con- 
certing an  escape  or  engaging  in  any  violence  or  breach  of  discipline 
justifying  such  an  extreme  measure,  is  as  fully  murder  as  could  be 
any  homicide  committed  with  deliberate  malice  in  time  of  peace.' 
R.  7,  360,  Mar.,  I864. 

1  Williams  v.  Bniffy,  6  Otto,  176,  187. 

2  See  Instructions  relative  to  the  dispatch  and  reception  of  Flags  of  Truce,  prepared 
in  the  Judge  Advocate  General's  Office,  published  in  G,  O.  43,  A.  G.  O.,  1893. 

^  Murder,  at  common  law,  is  "the  unlawful  killing,  by  a  person  of  sound  memory 
and  discretion,  of  any  reasonable  creature  in  being  and  under  the  peace  of  the  State, 
with  malice  aforethought  either  express  or  implied,"  In  many  of  the  States,  two  or 
more  degrees  of  murder  are  now  distinguished  by  the  statute  law;  murder  in  the 
first  degree — generally  defined  as  a  killing  accompanied  by  express  malice,  or  a 
deliberate  unlawful  intent  to  cause  the  death  of  the  particular  person  killed — being 
ordinarily  alone  made  capital.  Manslaughter,  at  common  law,  is  distinguished  from 
murder  by  the  absence  of  mafice  aforethought.  The  State  statutes  have  generally 
constituted  degrees  of  manslaughter ^  also,  a  different  measure  oi  punishment  being 
assigned  to  each  degree.  The  laws  of  the  United  States,  through  prescribing  different 
punishments  for  manslaughter  under  different  circumstances,  recognize  no  discrimi. 
nations  of  grades  in  either  manslaughter  or  murder.  See  Coke,  Inst.  47;  4  Bl.  Com- 
95;  1  East,  P.  C.  214;  1  Russell,  Cr.  482,  1  Gabbett,  454,  2  WTiarton,  Cr.  L.  sec.  930; 


WAR  I  c  11  b.  1075 

I  C  1 1  b.  The  violation  of  his  parole  by  a  paroled  prisoner  of  war 
is  an  offense  against  the  common  law  of  war  and  punishable  with 
death.i     ^  q^  2o^  Jan.,  1864. 

I  C  11  c  (1).  An  engineer  captured  while  doing  duty  on  a  steamer 
of  the  enemy,  held  properly  detained  as  a  prisoner  of  war,  civil 
employees  of  the  enemy  serving  with  its  army  in  the  field  being 
regarded  as  on  the  same  footing  in  this  respect  with  the  soldiers  of 
such  army .2    R.  6,  5^2,  Aug.,  1866. 

I  C  11  c  (2).  Wliere  a  prisoner  of  war,  held  with  other  prisoners  at 
a  prison  camp  within  a  State  in  which  the  civil  courts  were  in  oper- 
ation, killed  one  of  his  fellow  prisoners,  advised  that  the  Government 
might  in  its  discretion  turn  him  over  for  trial  to  the  State  authorities, 
or  exchange  him  under  the  cartel  and  leave  him  to  be  tried  by  the 
Confederate  authorities.     R.  13,  498,  Mar.,  1865. 

IC  11  c  (3).  Wliere  certain  persons,  apprehended,  while  engaged 
apparently  as  partisans  in  a  raid  from  Kentucky  into  Indiana,  were 
held  to  trial  by  a  civil  court  of  the  latter  State  for  robbery,  and  the 
Confederate  agent  for  the  exchange  of  prisoners  of  war  made  there- 
upon official  application  that  they  should  be  treated  and  exchanged 
as  such  prisoners,  on  the  ground  that  they  were  Confederate  soldiers 
acting  under  the  orders  of  their  military  superiors,  advised,  in  view 
of  the  serious  doubt  as  to  their  real  status,  that  they  be  left  to  have 
their  offense  passed  upon  by  the  court  which  had  assumed  jurisdic- 
tion of  their  case,  and  by  which  the  defense  that  their  operations  were 
legitimate  acts  of  war  could  be  properly  investigatecf.^  R.  2,  591, 
June,  1863;  5,  344,  Nov.,  1863. 

I  C  11  c  (4).  Where  certain  soldiers  of  the  enemy's  army,  having 
been  taken  prisoners  in  Virginia  upon  Lee's  surrender,  were  released 
on  parole,  on  condition  of  their  returning  to  their  homes,  held  that 
this  parole  did  not  authorize  them,  in  the  absence  of  special  authority 
from  the  United  States  Government,  to  come  within  our  lines  and 
into  the  State  of  Maryland,  although  that  State-  had  been  their  place 
of  residence  before  the  war;  and  that,  in  actually  coming  into  Mary- 
land, they  were  chargeable  with  a  violation  of  their  parole.*  And 
held,  further,  that  a  citizen  of  Maryland,  in  harboring  and  relieving 
them  after  coming  into  that  State,  was  chargeable  with  an  offense 
under  article  45.     R.  12,  400,  May,  1865. 

IC  11  c  (5)  (a).  Where  a  chaplain  of  the  Confederate  Army  came 
within  the  lines  of  the  United  States  Army  during  the  war  without 
the  authority  of  the  Federal  Government,  and  was  apprehended, 

3  Greenl.  Ev.  sec.  130;  Commonwealth  v.  Webster,  5  Cush.  304;  G.  O.  23,  Dept.  of 
California,  1865  (Remarks  of  Maj.  Gen.  McDowell).  "Murder,  originally,"  says  For- 
ter  (p.  302,  citing  Bracton  "de  murdro"),  was  "an  insidious  secret  assassination; 
occulta  occisio,  nullo  sciente  aut  vidente."  Now,  secrecy  in  the  commission  of  the  act 
is  significant  only  as  evidence  of  legal  malice. 

While  it  is  lawful  to  kill  an  enemy  "in  the  heat  and  exercise  of  war,"  yet  "to 
kill  such  an  enemy  after  he  has  laid  down  his  arms,  and  especially  when  he  is  con- 
fined in  prison,  is  murder."     State  v.  Gut,  13  Minn.,  341. 

1  See  G.  O.  100,  War  Dept.,  1863,  par.  124  (Lieber's  Instructions). 

2  See  Hague  Convention  of  1907,  36  Stat.,  2240;  also  Military  Laws  of  United  States 
with  Supplement  of  1911,  p.  1461. 

3  See  11  Op.  Atty.  Gen.,  240. 

*  In  11  Op.  207,  Atty.  Gen.  Speed  says  of  these  paroled  prisoners  that  they  "can 
not  be  regarded  as  having  homes  in  the  loyal  States.  *  *  *  As  belligerents 
their  homes  were,  of  necessity,  in  the  territory  belligerent  to  the  Government  of  the 
United  States." 


1076  WAR  I  c  11  c  (6)  (a). 

tried,  and  convicted  of  the  offense  involved,  and  sentenced  (Dec, 
1864)  to  be  confined  during  the  war,  advised  that  while  his  act  was  in 
violation  of  the  law  of  war,  yet,  as  it  appeared  that  his  only  object 
in  coming  within  our  lines  was  to  purchase  Bibles,  his  punishment 
might  well  be  remitted  on  his  taking  the  usual  oath  of  allegiance  to 
the  Federal  Government.     R.  11,  653,  Mar.,  1865. 

I  C  11  c  (6)  (a).  Held,  that  a  prisoner  of  war  terminates  his  status 
as  such  when  he  enhsts  in  the  Army,  and  can  not  be  returned  to  it  upon 
his  discharge.     C.  16,  July  13,  1894;  1193,  Apr.  13,  .895. 

I C  1 1  d  (1 ) .  Where  an  officer  of  our  Army,  while  on  trial  or  awaiting 
sentence,  is  taken  prisoner  by  the  enemy,  and  a  sentence  of  dismissal 
adjudged  by  the  court  and  duly  approved  is  not  officially  communi- 
cated to  him  till,  upon  being  exchanged,  he  has  returned  to  his  regi- 
ment, he  is  entitled  to  be  treated  and  paid  as  having  been  in  the 
United  States  service  up  to  the  date  of  such  notification.  And  so  of 
an  officer  dismissed  by  order,  or  a  soldier  dishonorably  discharged  by 
sentence  under  similar  circumstances. ^  R.  12, 230,  Jan.,  1865;  13, 589, 
Apr.,  1865;  C.  2039,  Feb.,  1896.^ 

I  C  11  d  (2)  (a).  A  paroled  prisoner  is  simply  a  soldier  who  has  been 
placed  under  a  disability  to  engage  in  active  operations  against  the 
enemy.  He  remains  a  part  of  the  Army  and  as  much  subject  to  mih- 
tary  control  as  he  was  before  his  capture.  If  he  absents  himself 
without  authority  from  the  post  or  station  to  which  as  a  paroled 
prisoner  he  has  been  assigned  by  the  mihtary  authorities,  he  is  absent 
without  leave  or  m  desertion  according  to  the  intent  with  which  he 
absented  himseK.     C.  1746,  Sept.,  1895;  17937,  May  4,  1905. 

I  C  11  d  (2)  (6).  A  prisoner  of  war,  on  being  paroled,  is  not  neces- 
sarily bound  to  return  to  the  regiment  or  other  command  to  which  he 
was  attached  upon  capture,  or  subject,  if  he  does  not  return,  to  be 
treated  as  a  deserter.  In  the  absence  of  any  special  order  given  him 
by  competent  authority  he  is  required  only  to  abide  by  the  existing 
orders  in  regard  to  paroled  prisoners  in  general.     R.  39,  339  Bee,  1877. 

I  C  11  d  (2)  (c).  Held,  in  the  absence  of  any  stipulation  to  the  con- 
trary in  the  cartel  of  exchange,^  that  a  prisoner  of  war  of  our  Army, 
released  on  parole  by  the  enemy,  might  legally  be  put  on  duty  as  one 
of  the  post  guard  at  a  post  not  in  the  field  or  threatened  by  the  enemv.^ 
R.21,592,  Aug.,  1866. 

1  C  11  d  (3).  While  it  is  laid  down  by  the  authorities  *  that  a  pris- 
oner of  war  is,  strictly,  justified  in  enlisting  in  the  service  of  the  enemy 
only  by  a  well-founded  apprehension  of  immediate  death,  yet  where 
soldiers  of  the  Federal  Army,  while  subjected  when  prisoners  in  the 
hands  of  the  enemy,  to  extreme  privation  and  suffering  by  which  their 
lives  were  imperiled,  were  induced,  solely  in  order  to  find  means  of 
escape  from  such  desperate  situation  to  enlist  in  the  enemy's  army, 
advised  that  such  soldiers,  on  subsequently  surrendering  to  or  being 

^  Note  the  j)ro vision  of  the  act  of  1814,  now  incorporated  in  section  1288,  R.  S., 
entitling  certain  officers  and  soldiers  to  be  paid  as  such  during  their  captivity  when 
made  prisoners  of  war  by  the  enemy.  And  see  Jones  v.  United  States,  4  Ct.  Cls.,  197; 
Phelps  V.  United  States,  id.,  209 — adjudicated  cases  of  officers  dismissed  while  prison- 
ers of  war  and  claiming  pay  under  the  statute. 

2  See  10  Op.  Atty.  Gen.,  357. 

3  See  G.  0.  (A.  &  I.  G.  O.)  of  Feb.  14,  1814;  do.  100,  War  Dept.  1863,  par.  130 
(Lieber's  Instructions). 

*  Respublica  v.  McCarty,  2  Dallas,  86;  United  States  v.  Vigol,  id.  346.  And  com- 
pare United  States  v.  Griner,  4  Philad.,  396,  401. 


WAE  I  C  12.  1077 

captured  by  our  forces,  should  not  as  a  general  rule  be  treated  as 
deserters,  but  should  be  returned  to  duty  with  their  regiments  without 

gunishment.  R.  14, 135,  Feb.,  1865;  16,  40,  271,  Apr.  and  June,  1865, 
lit  where  it  appeared  that  certain  soldiers  of  our  Army  who  when 
prisoners  of  war  had  enlisted  in  the  enemy's  service,  had  not  attempetd 
to  escape  when  they  might  have  done  so  but  had  voluntarily  remained 
and  fought  in  the  ranks  of  the  enemy's  army  till  forcibly  captured  by 
our  forces,  advised  that  their  representations  to- the  effect  that  they  had 
joined  the  enemy  to  escape  cruel  treatment  as  prisoners  of  war  should 
not  be  allowed  to  weigh  in  their  favor,  but  that  they  should  be  brought 
to  trial  for  the  crime  of  desertion  to  the  enemy.  R.  16,  136,  May, 
1865. 

I C  12.  In  a  proclamation  of  May  10,  1861,  the  President  authorized 
the  commander  of  the  United  States  forces  on  the  Florida  coast,  if  he 
found  it  necessary,  ''  to  suspend  there  the  writ  of  habeas  corpus  J  ^  By 
General  Order  104,  War  Department,  August  13,  1862,  the  President 
suspended  the  privilege  of  the  writ  of  habeas  corpus  in  cases  of  persons 
liable  to  draft  who  should  attempt  to  depart  to  a  foreign  country,  or 
should  absent  themselves  from  the  State  or  county  of  their  residence 
in  anticipation  of  a  draft  to  which  they  would  be  subject.  By  a  proc- 
lamation of  September  24,  1862,  the  President  declared  the  privilege 
of  the  ^vTit  suspended  in  respect  to  all  persons  arrested  or  imprisoned 
*'  during  the  reoelhon  by  any  mihtary  authority,"  or  under  '' sentence 
of  any  court  martial  or  military  commission."  These  proclamations 
and  orders  were  all  based  upon  the  theory  that  under  Article  I,  section 
9,  paragraph  2,  of  the  Constitution,  or  otherwise,  the  President  alone, 
in  the  absence  of  any  authority  from  Congress,  was  empowered  to  sus- 
pend the  privilege  of  the  writ.^     R.  1,  345,  Sept.  10,  1862. 

But  in  the  following  year,  by  the  act  of  Congress  of  March  3,  1863, 
chapter  81 ,  section  1 ,  it  was  provided :  ''That  during  the  present  rebel- 
lion the  President  of  the  United  States,  whenever  in  his  judgment  the 
public  safety  may  require  it,  is  authorized  to  suspend  the  privilege  of 
the  \\«rit  of  habeas  corpus  in  any  case  throughout  the  United  States  or 
any  part  thereof  "^-Congress,  by  thus  asserting  the  right  in  itself  to 
authorize  the  suspension,  implying  that,  in  its  opinion,  the  power  to 
suspend  did  not  reside  in  the  President.^ 

In  sundry  particular  cases,  referred  to  the  Judge  Advocate  General 
by  the  Secretary  of  War,  of  persons  detected  in  holding  correspond- 
ence with,  or  giving  intelligence  or  otherwise  lending  aid  to,  the  enemy, 
as  also  in  obstructing  enlistments  in  the  Army,  etc.,  the  opinion  was 
expressed  that  the  suspension  of  the  writ  by  the  President  would  be 
legally  justified  under  this  act.  R.  2,  174,  4^6,  Apr.  and  May,  1863; 
3,  72,  June,  1863.  The  instances,  however,  of  suspension  in  individual 
cases  were  not  numerous;  for,  presently,  viz,  on  September  15,  1863, 
and  pursuant  to  the  act  of  March,  1863,  above  cited,  the  President 

^  The  question  whether  the  President  was  authorized,  in  his  own  discretion  and 
independently  of  the  sanction  of  Congress,  to  exercise  this  power,  was  much  dis- 
cussed early  in  the  Civil  War.  The  fullest  argument  in  favor  of  the  existence  of  the 
{)ower  in  the  President,  is  contained  in  Mr.  Horace  Binney's  treatise  on  "The  Privi- 
ege  of  the  Writ  of  Habeas  Corpus  under  the  Constitution."  And  see  also,  Ex  parte 
Field,  5  Blatch.,  63;  Opinion  of  Attorney  General  Bates  in  10  Op.,  74.  The  weight  of 
judicial  authority,  however,  was  the  other  way.  See  Ex  parte  Merryman,  Taney, 
246;  McCall  v.  McDowell,  1  Abbott  U.  S.  R.,  212;  Griffin  v.  Wilcox,  21  Ind.,  383; 
In  re  Kemp,  16  Wis.,  382;  In  re  Oliver,  17  id.,  703. 
2  See  In  re  Murphy,  Woolworth,  141. 


1078  '  WAR  I  D  1. 

issued  a  proclamation  suspending  the  privilege  of  the  writ  generally, 
and  '^throughout  the  United  States  in  all  cases  ''where,  by  the 
authority  of  the  President  of  the  United  States,  military,  naval,  and 
civil  officers  of  the  United  States,  or  any  of  them,  hold  persons  under 
their  command  or  in  their  custody,  either  as  prisoners  of  war,  spies,  or 
aiders  or  abettors  of  the  enemy,  or  officers,  soldiers,  or  seamen  enrolled 
or  drafted  or  mustered  or  enlisted  in,  or  belonging  to,  the  land  or  naval 
forces  of  the  United  States,  or  as  deserters  therefrom,  or  otherwise 
amenable  to  militarj^  law,  or  the  rules  and  articles  of  war,  or  the  rules 
or  regulations  prescribed  for  the  military  or  naval  services  by  author- 
ity of  the  President  of  the  United  States,  or  for  resisting  a  draft,  or  for 
any  other  offense  against  the  mihtary  or  naval  service."  In  a  case  in 
wmch,  by  the  operation  of  this  last  proclamation,  the  writ  was  sus- 
pended, lield  that  any  judge  or  court,  whether  of  the  United  States  or 
of  a  State,  would  be  required  to  dismiss  the  wiit,  on  being  advised  (in 
the  manner  and  form  indicated  in  the  act  of  Mar.  3,  1863,  sec.  1)  that 
the  party  sought  to  be  relieved  was  "detained  as  a  prisoner  under  the 
authority  of  the  President."  ^  R.  15,  157,  May,  1865. 

I  C  12  a.  By  a  proclamation  of  December  1,  1865,  the  President 
*' revoked  and  annulled"  the  suspension  (by  ploclamation  of  Sept. 
15,  1863)  of  the  privilege  of  the  writ  in  certain  States,  including  New 
York.  Held,  that  such  revocation  did  not  operate  to  authorize  the 
discharge,  by  a  court  of  that  State,  of  a  prisoner  detained  in  mihtary 
custody  under  color  of  the  authority  of  the  United  States.  R.  21,  92, 
Dec,  1865. 

I  D  1.  Under  the  terms  of  the  protocol  of  August  12,  1898,  and  of 
the  treaty  of  peace  sigiled  at  Pans  on  December  10,  1898,  all  of  the 
immovable  property  on  the  island  of  Porto  Rico  belonging  to  the 
general  government  and  as  such  "to  the  Crown  of  Spain,"  together 
with  certain  property  in  the  nature  of  pubhc  records,  was  ceded  to  the 
United  States.  All  other  movable  property  of  the  general  govern- 
ment for  which  no  special  provision  was  made  either  in  the  protocol 
or  treaty  remained  the  property  of  Spain  to  be  disposed  of  as  desired 
by  the  latter.  Certain  articles  of  this  movable  property  (office  furni- 
ture) which  it  appeared  had  been,  Hke  the  public  buildmgs  and  other 
public  works  of  the  island,  paid  for  from  appropriations  collected  from 
the  island,  were  ordered  purchased  from  the  Spanish  Government  out 
of  the  insular  funds  collected  by  the  United  States.  Held  that  the 
payment  could  legally  be  made  as  ordered,  the  property  belonging  to 
Spain  and  not  to  the  "island  government,"  there  never  having  been 
an  independent  government  for  Porto  Rico.     C.  6828,  Aug.,  1899. 

I  E  1.  Martial  law  is  defined  as  military  authority  exercised  in 
accordance  with  the  rules  and  usages  of  war,^  and  "Martial  Law  at 
Home,"  (or  as  a  domestic  fact)  as  mihtary  power  exercised  in  time 
of  war,  insurrection,  or  rebelhon,  in  parts  of  the  countr}^  retaining 
their  allegiance,  and  over  persons  and  things  not  ordinarily  subject 
to  it.^  Martial  law  as  a  domestic  fact  presupposes  a  condition  in 
which  the  civil  courts  are  unable  to  enforce  tneir  processes,  and  is 
justified  by  the  necessity  of  society's  protecting  itself  by  suppressing 
the  resistance,  so  as  to  enable  the  civil  courts  to  fulfill  their  proper 
functions.     It  is  the  suspension  of  all  law  but  the  will  of  the  military 

1  Instructions  for  the  Armies  of  the  United  States  in  the  Field,  G.  O.  100,  A.  G.  O., 
1863. 

2  Manual  for  Courts-Martial  (1908),  p.  5. 


WAR  I  E  1  a.  1079 

commanders  entrusted  with  its  execution,  to  be  exercised  according 
to  their  judgment,  the  exigencies  of  the  moment  and  the  usages  of  the 
service,  with  no  fLxed  or  settled  rules  of  law,  no  definite  practice,  and 
not  bound  by  even  the  rules  of  the  military  law.^  When  martial  law 
prevails  the  civil  power  is  suj)erseded  by  the  military  power,  and  the 
ordinary  safeguards  to  individual  rights  are  for  the  time  being  set 
aside,^  but  it  is  incumbent  on  those  who  administer  it  to  act  in  ac- 
cordance with  the  principles  of  justice,  honor,  and  humanity  and  the 
laws  and  usages  of  war."*     C.  8383,  May,  1900. 

I  E  1  a.  Martial  law  is  a  modified  degree  of  the  .law  of  war,  or  a 
law  assimilated  to  the  latter,  called  into  exercise  temporarily  and 
for  a  specific  purpose,  at  a  time  of  war  or  pubhc  emergency,  and 
generally  in  a  place  or  region  not  constituting  enemy's  country,  or 
under  permanent  mihtary  government.*  Whether  proclaimed  by 
the  President  or  declared  by  a  competent  mihtary  commander,  mar- 
tial law  overrides  and  supersedes,  for  the  time  being,  all  civil  law 
and  authority,  except  in  so  far  as  the  same  may  be  left  operative  by 
the  terms  of  the  announcement,^  or  the  action  or  acquiescence  of  the 
donunant  power.  While  the  status  of  martial  law  continues,  the 
military  power,  instead  of  being  subordinate,  is  superior  to  the 
civil  power,  and  the  natural  and  normal  condition  of  things  is  thus 
reversed.  But  while  martial  law  will  warrant  a  resort  by  the  com- 
mander, at  his  will,  to  summary  and  arbitrary  measures,  by  which  the 
liberty  of  the  citizen  may  be  restrained,  his  action  coerced,  and  his 
rights  suspended,  it  can  not  be  availed  of  by  subordinates  to  justify 
acts  of  unnecessary  violence,  personal  persecution,  or  wanton  wrong.® 
R.  12,  105,  Dec,  1864;  19,  4I,  Oct,  1865;  0.8383,  May,  1900. 

IE  1  a  (1).  Under  martial  law  the  mihtary  power  is  supreme. 
Held  that  the  only  limitation  to  it  is  that  it  must  be  exercised  in 
accordance  with  the  principles  of  justice,  honor,  humanity,  and  the 
laws  and  usages  of  war.     0.  8383,  May  26,  1900. 

I  E  1  b.  A  proclamation  declaring  that  a  '  'state  of  insurrection  and 
rebellion"  exists  in  a  particular  region  of  a  State  is  m.  effect  a  declara- 
tion of  martial  law,  but  such  declaration  is  not  essential.  Martial  law 
as  a  domestic  fact  exists  when,  the  resistance  to  law  having  reached 
such  a  stage  that  the  civil  authorities  are  powerless  to  cope  with  it, 

*  Pomeroy's  Constitutional  Law,  sec.  712;  Finlason  on  Martial  Law,  p.  107, 

2  See  Lieber's  Use  of  the  Army  in  Aid  of  the  Civil  Power.  War  Department  Doc- 
ument 64. 

^  As  to  the  rights,  duties,  and  obligations  of  a  military  commander  who  is  directed 
to  suppress  an  insurrection  in  a  State,  see  Birkhimer's  Military  Government  and 
Martial  Law,  pp.  395-399. 

*  Note  the  distinction  between  military  government  ;proper  and  martial  law  as  illus- 
trated in  Milligan's  Case,  4  Wallace,  142.  The  "martial  law"  referred  to  in  the  test 
is  defined  in  the  Manual  for  Courts-Martial  (1908),  p.,  5,  as  "Martial  Law  at  Home 
^or,  as  a  domestic  fact) ;  by  which  is  meant  military  power  exercised  in  time  of  war, 
insurrection,  or  rebellion,  in  parts  of  the  country  retaming  their  allegiance,  and  over 
persons  and  things  not  ordinarily  subjected  to  it." 

*  Luther  v.  Borden,  7  Howard,  13-14;  United  States  v.  Diekelman,  2  Otto,  526;  In 
re  Egan,  5  Blatch.,  319,  321;  Griffin  v.  Wilcox,  21  Ind.,  376;  Johnson  v.  Jones,  44  111., 
153;  In  re  Kemp,  16  Wis.,  382;  Clode  (Military  and  Martial  Law),  183-191;  Hough 
(Precedents),  514,  549;  G.  O.  100,  War  Dept.,  1863,  Sec.  I. 

^  "But  the  existence  of  martial  law  does  not  authorize  general  military  license,  or 
place  the  lives,  liberty,  or  property  of  the  citizens  of  the  States  under  the  unlimited 
control  of  every  holder  of  a  military  commission."  Despan  v.  Olney,  1  Curtis,  308. 
And  see  Luther  v.  Borden,  7  Howard,  14;  G.  O.  100,  War  Department,  1863,  Sec.  I, 
par.  numbered  4.  ' 


1080  WAR  I  E  1  C. 

the  military  take  control  to  suppress  the  resistance  and  restore  the 
civil  authority.  Such  martial  law  ceases  when  the  necessity  for  it 
ceases.  It  ceases  when  the  civil  authorities  resume  their  unobstructed 
functions,  although  the  mihtary  may  be  present  to  aid  them  if  the 
need  of  such  aid  should  arise.     C.  8383,  May,  1900. 

I  E  1  c.  Where  a  city  or  district  has  been  put  under  martial  law  by 
the  commanding  general,  he  becomes  its  supreme  governor,  and,  in 
governing,  is  ordhiariljr  to  be  presumed  to  be  empowered  to  exercise 
the  same  authority  which  the  rresident  might  have  exercised  had  lie 
proclaimed  martial  law  therein.^     R.  10,  669,  Bee,  1864- 

I  E  1  c  (1).  In  view  of  the  President's  proclamation  of  July  5,  1864, 
suspending  the  writ  of  habeas  corpus,  and  estabhshing  martial  law  in 
the  State  of  Kentucky,  Jield  (Dec,  1864)  to  be  competent  for  the 
general  commanding  the  military  district  of  Kentucky,  if  in  his 
judgment  the  effective  maintenance  of  martial  law  and  the  accompHsh- 
ment  of  the  ends  proposed  by  its  declaration  required  it,  to  restrain, 
by  such  means  as  in  his  discretion  might  be  deemed  needful,  the 
prosecution  of  suits  instituted  against  United  States  officers  for 
acts  done  in  the  line  of  their  duty,  and  having  the  effect  (indicated  in 
the  proclamation)  of  impeding  ^'military  operations,"  and  of  embar- 
rassmg  ''the  constituted  authorities  of  the  Government  of  the  United 
States."     R.  10,  669,  Bee,  I864. 

I E  1  d.  The  occasion  for  the  exercise  of  martial  law  properly  ceases 
when  the  emergency  has  passed  which  made  it  necessary  or  expedient  .^ 
So,  the  commander  of  the  Middle  Mihtary  Department  having,  in 
view  the  presence  in  the  department  of  an  army  of  the  enemy,  pro- 
claimed, by  order  of  June  30,  1863,  a  state  of  martial  law  in  Baltimore 
City  and  County  and  the  counties  of  the  western  shore  of  Maryland, 
with  the  assurance  expressed  that  such  status  should  not  extend 
beyond  the  necessities  of  the  occasion,  held  that  as  the  exigency  had 
long  ceased  to  exist,  the  order,  though  never  in  terms  revoked,  should 
properly  be  considered  as  no  longer  operative.  R.  12,  4^2,  June, 
1865. 

I  E  1  e.  The  President's  proclamation  of  September  24,  1862,  sub- 
jected to  martial  law  and  trial  by  military  courts  throughout  the 
United  States  certain  classes  of  persons  named,  and  suspended  the 
privilege  of  the  writ  of  habeas  corpus  as  to  all  persons  imprisoned 
under  military  sentence  or  by  military  authority  ''during  the  rebel- 
lion." The  further  executive  proclamation  of  September  15,  1863 
(issued  pursuant  to  the  act  of  Mar.  3,  1863),  suspended  the  privilege 
of  the  writ  throughout  the  United  States  as  to  certain  classes  of  persons 
enumerated.  The  further  proclamation  of  December  1,  1865,  in  re- 
voking generally  the  suspension  declared  by  the  proclamation  of 
September  15,  1863,  excepted  from  such  revocation,  and  left  the  sus- 
pension in  force  in,  certain  States  and  Territories  specified  and  "in 
the  District  of  Columbia."    The  proclamation  of  April  2,  1866  (which 

*  In  Clark  v.  Dick,  1  Dillon,  8,  the  court,  referring  to  the  placing  of  the  city  of  St. 
Louis  under  martial  law  by  the  department  commander,  Maj.  Gen.  Halleck  (by 
G.  O.  34,  Dept.  of  the  Missouri,  1861),  observes:  "That  this  officer  represented 
the  President,  who  is  Commander  in  Chief  of  the  Army,  and  was  vested  with  all  the 
authority  as  such  military  commander  that  belonged  to  the  President,  can  not  be 
doubted." 

'^  In  re  Egan,  5  Blatch.,  319,  322;  In  the  matter  of  Martin,  45  Barb.,  145;  Hough 
(Precedents),  535. 


WAR   I   R  1   f .  1081 

in  one  of  its  preambles  declared  that  martial  law  and  the  suspension 
of  the  writ  of  habeas  covpus  were  '  'dangerous  to  public  liberty,  incom- 
patible with  the  individual  rights  of  the  citizen,  etc.,  and  ''ought  not 
to  be  sanctioned  or  idlowed  except  in  cases  of  actual  necessity,"  etc.), 
announced  the  rebellion  as  at  an  end  throughout  the  United  States, 
the  State  of  Texas  only  excepted.  Held,  in  view  of  these  proclama- 
tions, that,  so  far  as  concerned  the  exercise  of  military  authority  and 
i'urisdiction,  martial  law  might  be  considered  to  have  existed  in  the 
)istrict  of  Columbia  from  September  24,  1862,  as  to  the  classes  of 
Eersons  indicated  in  the  proclamation  of  that  date,  and  from  Septem- 
er  15,  1863,  as  to  other  classes  of  persons  indicated  in  the  proclama- 
tion of  that  date,  to  April  2,  1866,  tlie  date  of  the  proclamation  issued 
at  the  end  of  the  war.^     R.  85,  177,  Feb.,  187 Jf. 

I  E  1  f.  When  the  United  States  is  called  upon  to  protect  a  State 
against  "domestic  violence,"  its  military  forces  act  in  aid  of  the  State 
authorities  to  the  extent  necessary  to  reestablish  the  civil  authority; 
they  are  not  however  under  the  command  of  the  State  authorities,  but 
of  their  military  officers  under  the  President.  To  this  extent  they  are 
an  independent  force,  oneratmg  under  the  orders  of  the  President,  to 

eerform  a  duty  to  the  State  imposed  upon  the  United  States  by  the 
onstitution.2     C.  8383,  May,  1900. 

I  F  1.  Held,  in  a  case  in  which  a  State  judge  had  discharged  a  sol- 
dier enlisted  for  the  war  on  the  ground  that  the  war  had  ended,  that 
the  judiciary,  even  of  the  United  States,  would  not  be  empowered  to 
determine,  originally,  the  question  whether  the  war  had  terminated, 
but  upon  such  question  would  properly  await  and  abide  by  the  action 
of  the  President  or  Congress.^     R.  18,  293,  Oct,  1865. 

1  F  2.  Heldi\\2it  the  status  of  war  between  Spain  and  the  United 
States  terminated  on  the  date  of  the  exchange  of  ratifications  of  the 
treaty  of  peace.-*  C.  12488,  Apr.  29,  1902;  12881,  July  1,  1902; 
15154,  Aug.  27,  1903;  16064,  Apr.  21,  1904;  16254,  May  25,  1904; 
16754,  Bee.  23,  1903;  17349,  Jan.  5,  1905;  19734,  May  15,  1906. 

^  "It  would  seem  to  be  conceded  that  the  power  to  suspend  this  writ"  (the  writ  of 
habeas  corpus)  "and  that  of  proclaiming  martial  law,  include  one  another.  *  *  * 
The  right  to  exercise  one  power  implies  the  right  to  exercise  the  other."  9  Am.  Law 
Reg.,  507  and  508.     And  see  Ex  parte  Field,  5  Blatch.,  82. 

2  See  Report  No.  1999,  House  of  Representatives,  56tliCong.,  1st  sess.  (Coeur  d'Alene 
labor  troubles). 

3  It  has  subsequently  been  similarly  held  in  repeated  cases.  See  Phillips  v.  Hatch, 
1  Dillon,  571;  Semmes  v.  City  Fire  Ins.  Co.,  36  Conn.,  543;  Conley  v.  Supervisors,  2 
West  Va.,  416;  Perkins  v.  Rogers,  35  Ind.,  124;  Sutton  v.  Tiller,  6  Coldw.,  595;  also 
United  States  v.  Anderson,  9  Wallace,  56,  71. 

In  the  case  of  The  Protector  (12  Wallace,  700)  it  was  held  by  the  Supreme  Court 
that  the  war  began  in  all  the  insurrectionary  States,  except  Virginia  and  North  Caro- 
lina, on  April  19,  1861,  the  date  of  the  first  "proclamation  of  intended  blockade," 
and  in  those  two  excepted  States  on  April  27th,  1861,  the  date  of  the  second  such 
proclamation;  further  that  the  war  ended  in  all  the  States  except  Texas  on  April  2d, 
1866,  the  date  of  the  proclamation  declaring  the  war  at  an  end  as  to  all  the  other 
States,  and  in  Texas  on  August  20th,  1866,  the  date  of  the  proclamation  declaring  the 
war  at  an  end  in  that  State  and  generally.  And  see  Adger  v.  Alston,  15  Wallace, 
555,  and  Burke  v.  Miltenberger,  19  id.,  519,  in  which  the  ruling  in  The  Protector  is 
affirmed  by  the  same  court;  also  United  States  v.  Anderson,  supra. 

*See  Ribas  y  Hijo,  194  U.  S.,  315.  See  also  ex  parte  Ortiz,  100  Fed.  Rep.,  955, 
where  it  is  held  that :  "As  affecting  private  right  a  treaty  between  two  nations  becomes 
effective  only  from  the  date  when  the  ratifications  by  the  respective  Governments 
are  exchanged."  See  also  U.  S.  v.  Arredonde,  31  U.  S.,  691,  748;  Haver  v.  Yaker, 
76U.  S.,  32. 


1082  WAR WAK.  POWER. 

I  F  3.  In  the  proclamation  of  the  President  of  the  United  States, 
July  4,  1902,  there  occurred  the  following  provisions:  "Whereas, 
many"  of  the  inhabitants  of  the  Philippine  Archipelago  were  in  insur- 
rection against  the  authority  and  sovereignty  of  Spain  at  divers 
times  from  August,  1896,  until  the  cession  of  the  archipelago  from 
that  Kingdom  to  the  United  States  of  America,  and  since  such  session 
many  of  the  persons  so  engaged  in  insurrection  have,  until  recently, 
resisted  the  authority  and  sovereignty  of  the  United  States:  And 
whereas,  the  insurrection  against  the  authority  and  sovereignty  of 
the  United  States  is  now  at  an  end,  and  peace  has  been  established 
in  all  parts  of  the  archipelago  except  in  the  country  inhabited  by  the 
Moro  tribes,  to  which  this  proclamation  does  not  apply."  Held  that 
the  war  status  in  the  Philippines  except  in  the  Moro  country,  was 
terminated  on  the  date  of  the  publication  of  the  above  proclamation, 
viz,  July  4,  1902.  C.  13743,  Bee.  2,  1902;  12184,  Feb.  12,  1903; 
14348,  Mar.  25,  1903;  15754,  Bee.  24,  1903;  16859,  Sept.  7,  1904. 

I  F  4.  Held  that  the  war  in  China  ended  May  12,  1901,  the  date 
fixed  in  General  Order  No.  19,  Headquarters  China  Rehef  Expedition 
at  Pekm,  China.     C.  17609,  Mar.  22,  1905. 

I  G  1.  War  correspondents  as  a  class  are  noncombatants  within 
the  theater  of  military  occupation.  Held  that  they  fall  within  the 
jurisdiction  of  the  commanding  general  of  the  army  which  they 
accompany,  and  that  he  may  issue  rules  or  regulations  which  govern 
their  conduct  while  within  the  limits  of  his  command.  C.  16351, 
May  19,  1904. 

WAR  COLLEGE. 

Appropriation,  .v See  Appropriations  XXII. 

Army  service See  Contracts  VII  E  3. 

Students See  Absence  I  B  1  g  (2)  (a). 

WAR  CORRESPONDENT. 

Military  control  over See  War  I  G  1. 

WAR  DEPARTMENT. 

See  Secretary  op  War. 

Bonds See  Bonds  I  O ;  P. 

Chief  of  Coast  Artillery  not  part  of See  Civilian  employees  VIII  A. 

Collection  of  private  debts See  Private  debts  IV. 

Contracts  under  seal See  Contracts  XXXVI. 

Discharge  of  minor See  Discharge  XII  D  1 ;  2. 

Erroneous  discharge  corrected See  Discharge  XIV  A  1;  B  2;  D  5;  XV  D 

1  c. 

Fixing  age  of  minor See  Discharge  XII  B  1. 

Improper  attempts  to  influence See  Communications  IV  B  1. 

Nunc  pro  tunc  discharge  can  not  be  issued.  .See  Discharge  XIV  A  2. 

Official  papers  in See  Official  records  I  A  to  B. 

Policy  as  to  deserters See  Discharge  II  B  2  a. 

Policy  when  deserter's  sentence  is  set  aside. .  .See  Discharge  III  B  5  a. 
Policy  as  to  discharge  without  honor See  Discharge  III  B;  B  1  to  5  a. 

WAR  POWER. 

See  War  I  C  8  a  to  b. 


WARRANT — WITNESS  FEES.  1083 

WARRANT. 

OJ noncommissioned  officer See  Rank  I  D  to  E. 

Search  warrant See  Articles  op  War  LIX  G  1  a. 

Command  V  A  3  e;  B  2  b;  3. 

WAR  SERVICE. 

Counts  double  for  retirement  of  soldier See  Retirement  II  A  4  to  5. 

WARRANTIES. 

See  Contracts  XXVI. 
WATCHWORD. 

See  Articles  op  War  XLIV. 
WATER  COURSE. 
Claim  for  diversion  of. See  Claims  II. 

WATER  PLANT. 

Mains  and  hydrants  in  street See  Appropriations  LIII, 

On  target  range See  Militia  VI  C  1  g. 

WATER  POWER. 

License  to  use See  Public  property  I  A  1. 

WHOLLY  RETIRED. 

Examining  board See  Retirement  I  B  6  c  (2);  (3), 

Retiring  board See  Retirement  I  N  to  0. 

WIFE. 

Abuse  of. See  Articles  of  War  LXI  B  13;  14. 

Evidence  by See  Discipline  X  A  5;  B  1;  la. 

Supplies  purchased  from  soldier's See  Contracts  XV  A  4. 

WITHDRAWAL. 
Of  bids See  Contracts  XI  B;  C. 

WITNESS. 

Before  surveying  officer See  Public  property  I  F  3  a. 

Civil  court See  Civil  authorities  I  A;  A  1, 

Civilian See  Civilian  employees  IV  to  V. 

Discipline  IV  B  4  a. 

Expert See  Discipline  IV  B  3  d  (1). 

Insane  person See  Discipline  IX  F  3  a. 

List  of. See  Discipline  II  E. 

Military  court See  Discipline  X  A  to  L. 

WITNESS  FEES. 

Board  of  investigation See  Discipline  XVIII  C. 

Civil  courts See  Civil  authorities  I  B  1. 

Retired  officer See  Retirement  I  M  2. 


1084  WORDS  AND  PHRASES. 

WORDS  AND  PHRASES.! 

'^Accouterments"  applies  in  the  military  service  to  those  parte  of  the  soldier's  personal 
equipment  which  are  issued  by  the  Ordnance  Department  in  connection  with  his 
arms  and  ammunition,  such,  for  example,  as  belts  and  cartridge  pouches.  C.  18944, 
Dec.  9,  1905;  18764,  Oct.  15,  1906;  18944,  Dec.  12,  1905. 

*M  court  of  justice  "  defined See  Articles  of  War  LXXXIV. 

^^ Active  duty"  defined See  Retirement  I  K  1. 

*^ Active  service''  defined See  Retirement  I  B  2  a. 

^^ Actual  service''  defined See  Retirement  II  A  4  b  (1). 

^^Any  of  U.  S."  under  fifty-ninth  article 

of  war  defined See  Articles  of  War  LIX  F. 

^^Arms"  defined See  Arms  I. 

*^At  or  near"  defined See  Discipline  II  D  9  a. 

*^ Authorized  confinement"  as  used  in  Article  IV  of  General  Order  16  of  1895  (now  Art. 
IV,  G.  O.  42  of  1901),  is  not  limited  to  the  maximum  authorized.  Confinement  for  a 
period  less  than  the  maximum  is  also  authorized  confinement.  The  article  means 
that  when  the  maximum  term  may  be  more  than  six  months,  dishonorable  discharge 
with  forfeiture  of  pay  and  allowances  may  be  awarded  with  whatever  confinement, 
within  the  prescribed  limit,  the  court  may  adjudge.  C.  1551,  July,  1895.  Held 
also  that  such  "authorized  confinement"  is  limited  to  the  specific  confinement 
authorized  by  Article  II,  or  if  not  provided  for  therein,  by  the  custom  of  the  service; 
that  is  to  say,  such  confinement  may  not  be  increased  by  substitution  of  confine- 
ment for  forfeiture,  or  on  account  of  previous  convictions,  the  same  not  being  pro- 
vided for  by  the  terms  of  Article  IV.     C.  8543,  July,  1900. 

*' Authorized"  construed See  Laws  I  B  2. 

Navigable  waters  X  A  1. 

^'Burglary"  defined See  Articles  of  War  LXII  C  7. 

'^Cashiering"  defined See  Discipline  XII  B  3  i. 

"  Civil  office "  defined See  Office  IV  A  2  c. 

''Civil  Far"  defined See  War  I  A  3. 

"Competent  authority"  to  muster  out See  Volunteer  Army  IV  C  1  a  (2)  (a). 

"Competition "  defined See  Army  bands  I  A  1, 

"Corps"  defined See  Insignia  of  merit  II  H. 

Crew  of  transport  are  civilian  employees. .  .See  Civilian  employees  V  A. 

** Crimes"  construed See  Articles  of  War  LXVI  A. 

"Crimes"  defined See  Articles  op  W^ar  LXII  A. 

**Day"  or  "days"  when  used  in  the  maximum  punishment  order  has  reference  to  a 
day  of  twenty-four  hours.     P.  53,  149,  Apr.,  1892. 

"Disbursing  officer"  defined See  Public  money  II  A. 

"  Electric  fixtures"  include  meters See  Appropriations  XLVI. 

"Embezzlement "  defined See  Section  5488,  Revised  Statutes,  and 

Articles  op  War  LXII  C  2. 

"Emergency"  defined See  Army  I  G  3  d  (3)  (a). 

"Enlistment"  defined See  Enlistment  I  A. 

"Established"  construed See  Military  instruction  II  B  1  c. 

"  Exercise  functions  of  civil  office"  defined.  .See  Office  IV  A  2  b. 

"False  swearing "  defined See  Articles  of  War  LXII  C  9. 

"Fine"  differentiated  from  ''stoppage" ..  .See  Pay  and  allowances  III  B  5;  D-3. 

"FUg"  described See  Flag  I. 

"Forfeiture"  differentiated  from   "stop- 
page"  See  Pay  AND  allowances  III  B  5. 

"Fraudulent  enlistment "  defined See  Enlistment  I  A  9  a. 

"Grant"  distinguished  from  "license" See  Public  property  I  A  2. 

"His  arms  or  ammunition"  described See  Articles  of  War  XLII  B. 

^  No  synopsis  of  words  and  phrases  is  presented  as  in  view  of  the  fact  that  most  of 
the  citations  are  cross  references,  it  is  deemed  better  to  arrange  the  words  and  phrases 
alphabetically. 


WORDS  AND  PHRASES.  1085 

'' His  clothing"  defined See  Pay  and  allowances  II  A  3  a  to  b. 

Articles  op  War  XVII  A. 

*  *  Imperfect  war  "  defined See  War  I  A  2. 

'^Incident  of  the  service  "  defined See  War  I  B  2  c. 

''Indian  country  "  defined See  Intoxicants  III  A. 

'' Indian  war"  (ie^ned See  War  I  A  5. 

''Infamous  criminal  offense"  defined See  Articles  op  War  III  A. 

•* In  open  market "  defined See  Contracts  VII  E  5. 

" In  their  own  right"  denned See  Insignia  op  merit  III  A  1. 

"Intoxicating  liquor "  defined See  Intoxicants  I. 

"It  shall  be  lawful"  or  "is  authorized  and 
empowered"  equivalent  to  ''may"  in 
river  and  harbor  act See  Navigable  waters  X  A  1. 

**  Jeopardy "  defined See  Articles  op  War  CII  A. 

"Zaw;  o/ war"  defined See  War  I  C  1. 

"Laws  of  the  land"  under  fifty -ninth  arti- 
cle of  War  defined See  Articles  op  War  LIX  C. 

" Legal  representative"  defined See  Articles  op  War  CXXVII  B. 

"Line  of  duty"  relation  to  "incident  of  the 
service^' See  Retirement  I  B  2  c. 

"Locality"  defined See  Contracts  XLIV. 

"  Martiallaw"  defined See  War  I  E  1. 

The  word  "may"  equivalent  to  "must"  or 
"shalV See  Laws  I  B  1  a. 

" Military  expedition"  denned See  Army  II  K  1  a. 

"  Military  stores,''  meaning  of See  Public  property  IX  A  1. 

"  Misbehavior  before  the  enemy"  described.. See  AnTicLES  of  War  XLII  A. 

**  Mixed  war  "  defined See  War  I  A  4. 

**  Month  "  in  a  lease  construed See  Public  property  VII  A  3. 

"Month  "  or  "months,"  employed  in  a  sentence,  is  to  be  construed  as  meaning  calendar 
month  or  months;  the  same  significance  being  given  to  the  term  as  is  now  commonly 
given  to  it  in  the  construction  of  American  statutes  in  which  the  word  is  employed.^ 
The  old  doctrine  that  V month"  in  a  sentence  of  court-martial  meant  lunar  month, 
has  long  since  ceased  to  be  accepted  in  our  military  law.     R.  £6,  374,  Jan.,  1868. 

"  Mutiny  "  defined See  Articles  of  War  XXII  A. 

"Navigable  waters"  described See  Navigable  waters  I  A. 

"Necessary"  defined  as  used  in  act  of  July 

7,  1884  (23  Stat.  227) See  Army— I  B  to  C. 

"Office  "  in  bond  means  what See  Bonds  II  G. 

"OflScer "  ("superior  officer")  in  the  twenty-first  as  in  all  other  articles  of  war  means 
commissioned  officer.  R.  9,  90,  May,  1864.  (See  also  the  provision  introductory  to 
the  Articles  of  War  of  sec.  1342.  R,  S.,  in  which  it  is  specified  that  "the  word  officer, 
as  used  therein,  shall  be  understood  to  designate  commissioned  officers.") 

"Official  record"  defined See  Insignia  of  merit  I  A  2  a. 

"On  or  aftow^' defined See  Discipline  II  D  9  a. 

"Participation  in  joint  encampment"  da- 
fined  See  Militia  VI  B  2  c. 

"Penitentiary " See  Articles  op  War  XCVII  C. 

"Perfect  war  "  defined See  War  I  A  1. 

"Permanent  disability"  defined See  Retirement  I  B  2  b. 

" Previous  conviction"  defined See  Discipline  XII  B  1  a  (1)  (a). 

"Private  indebtedness"  dehned See  Private  debts  I. 

"Public  money,"  what  constitutes See  Public  money  I  to  II. 

" Public  office"  denned See  Office  I. 

"Purchase"  defined See  Public  property  II  A;  V  E  1  d. 

"Regular  Army  "  .•. See  Army  I  G  1. 

"Remission"  defined See  Pardon  XVI  A. 

"Replace"  construed See  Insignia  op  merff  I  A  2  c. 

^  See  Moore  v.  Houston,  3  Sergt.  &  Rawle,  184;  Sedgwick,  Cons.  Stat,  and  Const,  L., 
2d  ed.,  p.  358;  also  1  Rev.  Stats,  of  New  York,  sec.  4.  See  R.  S.,  N.  Y.,  1896, 
Collins,  vol.  1,  p.  116,  sec.  26. 


1086  WORDS  AND   PHRASES WRIT   C^F   REPLEVIN. 

^^ Reputable  person. "  Held,  that  a  man  who  engages  in  the  illicit  trade  of  purchasing 
clothing  from  soldiers  is  not  a  "reputable  person'^  as  that  term  is  used  in  the  Regula- 
tions (par.  1406,  A.  R.,  1910)  in  connection  with  witnessing  transfers  of  final  state- 
ments.    C.  25191,  June  25,  1909. 

^'Service  with  troops "  defined See  Retirement  I  K  2  c. 

''Stealing "  defined See  Articles  of  War  LX  C. 

*' Suitable  mount"  denned See  Pay  and  allowances  I  B  7  b. 

*' Superintendents  national  cemeteries  are  See  Civilian  employees  V  B. 
civil  officers.'' 

"  Theater  ticket"  defined '. See  Uniform  I  B  2  a. 

*' Volunteer  Army"  described See  Volunteer  Army  I  to  II. 

*'War"  defined See  War  I. 

WRECK  OR  DRIFT  STUFF. 

See  Claims  VI  E. 
See  Public  money  I  O. 
§aleof. See  Public  property  IX  A  2  a  (3). 

WRECKS. 

Appropriation  for  removing See  Appropriations  XXXVIII. 

Removal  of. See  Navigable  waters  VII  to  VIII. 

WRIT  OF  ATTACHMENT. 

By  judge  advocate See  Discipline  X  K  to  L. 

On  pension  money See  Pensions  II  A. 

Public  money See  Public  money  II  C  to  D. 

Summary  court  can  not  issue See  Discipline  XVI  E  1. 

WRIT  OF  REPLEVIN. 

Receipt  of  by  commanding  officer See  Army  II  K  1  e  (2). 


APPENDIXES  I  AND  II.  1087 


APPENDIXES. 


Appendix  I. 

REFERENCES  TO  THE  CONSTITUTION  OF  THE  UNITED  STATES. 

CONSTITUTION. 

Art.  1,  sec.  8 See  Mzlitia  I  A  1;  I  E;  II  A. 

Laws  II  A  1  b. 

Art.  I,  sec.  8,  pars.  11  to  16 See  War  I  C  8  a. 

Art.  1,  sec.  8,  par.  14 See  War  I  C  8  c  (1)  (6). 

Art.  1,  sec.  8,  par.  16 See  Militia  XIII  A. 

Art.  1,  sec.  8 ,  par.  17 See  Public  property  V  to  VI. 

Art.  1,  sec.  9,  par.  2 See  War  I  C  12. 

Art.  1 ,  sec.  9,  par.  7 See  Pay  and  allowances  III  C  1  f  (1). 

Art.  1,  sec.  9,  par.  8 , See  Army  I  C  3. 

Art.  1,  sec.  10 See  Militia  IV  A. 

Art.  2,  sec.  2,  par.  1 See  Pardon  I  A. 

Art.  2,  sec.  2,  par.  2 See  Office  III  A4  c;  E  1;  F  1. 

Art.  3,  sec.  2,  par.  3. See  Office  III  A  3. 

Art.  4,  sec.  3,  par.  2 See  Public  property  I  A  to  B;  III  A  1; 

VH2b. 
Art.  4,  sec.  4 See  Army  II  A;  A  1;  E. 

AMENDMENTS. 

Art.  2 See  Arms  I. 

Art.  5 See  War  I  C  6  c  (1). 

Discipline  V  B. 

Articles  of  War  CII  A. 
Art.  6 ^See  Discipline  VIII  G  2  a. 

Articles  of  War  XCI  H. 

Art.  8 See  Discipline  XV  F  5. 

Art.  14 See  Enlistment  I  C  1  b. 


Appendix  II. 
REFERENCES  TO  LAWS  AND  JOINT  RESOLUTIONS. 

May  8,  1792  (1  Stat.  271) See  Militia  IV  A. 

Jan.  25,  1828  (4  Stat.  246) See  Public  money  IV  to  V. 

Mar.  1,  1843  (5  Stat.  606) See  Residence  II  A. 

Mar.  3,  1847  (9  Stat.  186) See  Insignia  of  merit  II  I. 

May  10,  1854  (10  Stat.  277) See  Office  III  E  3. 

Aug.  4,  1854  (10  Stat.  575) See  Insignia  of  merit  II  I. 

July  22,  1861  (12  Stat.  261) See  Office  V  A  5  b  (2). 

Volunteer  Army  II  F  1  a  (1). 

July  22,  1861  (12  Stat.  270) See  Office  IV  E  2  a  (1);  V  A  4  c. 

Aug.  3,  1861  (12  Stat.  288} See  Discharge  XIV  D  4. 


1088  APPENDIX  II. 

Aug.  6,  1861  (12  Stat.  318) See  Office  V  A  4  c. 

Dec.  24,  i861  (12  Stat.  330) See  Articles  of  War  LXXII  D  1. 

July  12,  1862  (12  Stat.  623,  751) See  Insignia  of  merit  IAla;2b;c;2e. 

July  17.  1862  (12  Stat.  594) See  Army  I  G  3  a  (4)  (a)  [1]. 

Discharge  III  F  2. 

Office  V  B  7  c. 

Volunteer  Army  IV  D  1  a  (2)  (b)  [21. 
Mar.  3,  1863  (12  Stat.  731) See  Desertion  XVI  Dig. 

Enlistment  II  A;  B  1;  2;  C  to  E. 

Mar.  3,  1863  (12  Stat.  751) See  Insignia ofmerit I Alto2; 2b ;d(l);e. 

Mar.  3,  1863  (12  Stat.  735) See  Public  property  IX  B  1. 

Discipline  XVII  B  2  a  (1). 

Mar.  12,  1863  (12  Stat.  821) See  Discipline  XVII  B  2  a  (1). 

Feb.  24,  1864(13  Stat.  8) See  Enlistment  II  B  1. 

July  2,  1864  (13  Stat.  365) See  Public  property  VI  E. 

July  4,  1864  (13  Stat.  397) See  Discipline  I  C. 

Mar.  3,  1865  (13  Stat.  488) See  Line  of  duty  II  A  4 

July  25,  1866  (14  Stat.  241) See  Militia  II  A. 

July  28,  1866  (14  Stat.  337) See  Laws  II  A  1  a. 

July  20,  1868  (15  Stat.  125) See  Office  IV  E  1  b. 

Mar.  3,  1869  (15  Stat.  318) See  Army  I  E  4. 

June  22,  1870  (16  Stat.  162) See  Army  I  B  5  a. 

July  15,  1870  (16  Stat.  319) See  Office  I  A  2  e  (6)  (a) ;  IV  E  2  a  (1). 

Mar.  3,  1873  (17  Stat.  535) See  Command  I  C. 

Apr.  20,  1874  (18  Stat.  pt.  3,  33) See  Public  money  VII. 

June  20,  1874  (18  Stat.  127) See  Insignia  of  merit  I  B. 

June  22,  1874  (ReAdsed  Statutes) See  Laws  I  A  1. 

June  22,  1874  (18  Stat.  144) See  Appropriations  XXVIII. 

June  23,  1874  (18  Stat.  215) See  Insanity  I  A  2. 

June  23,  1874  (18  Stat.  203) See  Army  I  D  3  a. 

Mar.  3,  1875  (18  Stat.  410) See  Public  money  II  A. 

Mar.  3,  1875  (18  Stat.  455) See  Contracts  XXIII  G. 

Mar.  3,  1875  (18  Stat.  479) See  Articles  of  War  LX  F. 

Command  V  A  3  g. 

Mar.  3,  1875  (18  Stat.  511) See  Public  property  VI  E  1. 

Mar.  3,  1875  (18  Stat.  517) See  Tax  III  E. 

July  29,  1876(19  Stat.  102) See  Absence  I  B  1  m;  m  (1);  n. 

Army  I  G  3  a  (2). 

Aug.  15,  1876  (19  Stat.  203) See  Line  of  duty  II  A  3;  3  a  (1). 

Feb.  27,  1877  (19  Stat.  252) See  Line  op  duty  II  A  3;  3  a  (2). 

Mar.  2,  1877  (19  Stat.  268) See  Laws  I  A  1. 

Mar.  3,  1877  i;i9  Stat.  335) See  Communications  II  A  2  a. 

Mar.  16,  1878  (20  Stat.  30) See  Discipline  XI  A  14  b. 

Apr.  10,  1878  (20  Stat.  36) See  Contracts  VI  C. 

June  18,  1878  (20  Stat.  149,  sec.  2) .See  Rank  III  A. 

June  18,  1878  (20  Stat.  150) See  Appropriations  XIV. 

Pay  and  ALLOWANCES  II A  2  d  (1);  (2). 
June  18,  1878  (20  Stat.  152,  sec.  15) See  Army  II  B;  C;  F  1. 

Territories  III  B. 

June  18,  1878  (20  Stat.  165) See  Insignia  op  merit  I  B. 

Mar.  3,  1879(20  Stat.  412) See  Public  property  I  B. 

June  23,  1879(21  Stat.  35) See  Army  II  CI. 

June  7,  1880  (21  Stat.  308) See  Laws  I  A  1 . 

Feb.  24,  1881  (21  Stat.  347) See  Pay  and  allowances  II  A  2  d  (1); 

(1)  («);  (2). 

May  4,  1882  (22  Stat.  57) See  Insignia  op  merit  I  B. 

May  6,  1882  (22  Stat.  58) See  Desertion  V  B  12. 

June  30,  1882  (22  Stat.  117) See  Army  I  G  3  a  (2). 

Retirement  I  A  2  a. 

July  31,  1882  (22  Stat.  181) See  A.rmy  II  C  1. 

Aug.  2,  1882(22  Stat.  204) See  Public  money  I  C. 

Aug.  5, 1882  (22  Stat.  255) See  Army  I  G  2  b  (1). 

Civilian  employees  VIII  A. 

Aug.  7,  1882  (22  Stat.  347) See  Desertion  XVI  D  1  a. 

Mar.  3,  1883  (22  Stat.  457) See  Army  I  G  3  a  (2). 

Rank  IV  B. 
Mar.  3,  1883  (22  Stat.  459) See  Laws  I  B  9. 


APPENDIX  II.  1089 

Mar.  3,  1883  (22  Stat.  487) See  Bonds  III  F. 

Contracts  XI  E. 

Mar.  3,  1883  (22  Stat.  488) See  Contracts  VI  C. 

Mar.  3,  1883(22  SUt.  563,  sec.  3) See  Civilian  employees  I  B  4;  CI. 

Mar.  3,  1883(22  Stat.  567) See  Retirement  I  G  3  b. 

Mar.  3,  1883  (22  Stat.  616) See  Private  debts  I. 

Mar.  3,  1883  (22  Stat.  625) See  Patents  VII  A 

Apr.  18,  1884  (23  Stat.  11) See  Uniform  I  C. 

May  1,  1884  (23  Stat.  17) See  Contracts  XIII  A;  E. 

May  17,  1884(23  Stat.  24) See  Army  II  B. 

May  21,  1884  (23  Stat.  28) See  Territories  III  E. 

July  5,  1884  (23  Stat.  103) See  Public  property  III  F  3;  V  D  1. 

July  5,  1884  (23  Stat.  104) See  Pubuc  property  VI  C  1 ;  VIII  to  IX. 

July  5,  1884  (23  Stat.  109) See  Army  I  E  2  b. 

Contracts  VI  D. 

July  5, 1884  (23  Stat.  112) See  Office  III  A  6  c. 

July  5,  1884  (23  Stat.  119) See  Desertion  XVI  D  1  a. 

July  5,  1884  (23  Stat.  148,  sec.  8) See  Navigable  waters  I;  IV  G. 

July  5, 1884  (23  Stat.  158,  sec.  3) See  Communications  II  A  1;  2  a. 

Militia  XIV  A. 

July  7,  1884  (23  Stat.  227) See  Army  I  B  2  h  (1). 

Feb.  14,  1885  (23  Stat.  305) See  Retirement  II  A  2. 

Jan.  6,  1885  (^  Stat.  516) See  Civilian  employees  I  D  3. 

Mar.  3,  1885(23  Stat.362) See  Army  II  C. 

May  17,  1886  (24  Stat.  51) See  Desertion  XVI  D  1  a;  2. 

June  30,  1886  (24  Stat.  96) See  Contracts  VI  B 

Dec.  20,  1886  (24  Stat.  351) See  Absence  I  B  1  k. 

Army  I  D  6. 

Feb.  12,  1887  (24  Stat.  401) See  Militia  IX  B  1;  X  D. 

Feb.  17, 1887  (24  Stat.  405) See  Appropriations  I  A. 

Feb.  23,  1887  (24  Stat.  644) See  Civilian  employees  I  D  3;  6. 

Mar.  1,  1887  (27  Stat.  435) See  Army  I  G  3  d  (5)  (a). 

Volunteer  Army  III  B  1. 

Apr.  24, 1888  (25  Stat.  94) See  Navigable  waters  X  D;  D  1. 

May  1,  1888  (25  Stat.  112) See  Public  money  I  P. 

June  29,  1888  (25  Stat.  209) See  Navigable  water  V  E  3. 

Aug.  1,  1888  (25  Stat.  357) See  Navigable  waters  X  D. 

Aug.  11,  1888  (25  Stat.  417) See  Public  property  VII  B  1  to  2. 

Aug.  11,  1888  (25  Stat.  423,  sec.  3) See  Contracts  VI  C;  VII  F  to  G. 

Navigable  waters  X  C;  F  2. 

Aug.  11,  1888  (25  Stat.  424,  sec.  9) See  Navigable  waters  I;  IV  A;  C;  G. 

Aug.  11,  1888  (25  Stat.  425,  sec.  12) See  Navigable  waters  I  A  1  a  (1);  VI  B. 

Aug.  27,  1888  (25  Stat.  450) See  Soldiers'  Home  III. 

Sept.  10,  1888  (25  Stat.  473) See  Public  property  VI  E  1. 

Sept.  10,  1888  (25  Stat.  474) See  Navigable  waters  III  E. 

Sept.  22,  1888  (25  Stat.  484) See  Laws  I  B  5. 

Sept.  26,  1888  (25  Stat.  491) See  Bonds  IV  K;  M. 

Military  instruction  II  B  1  a;  c;  2  a; 
b;e(l). 

Feb.  8,  1889  (25  Stat.  657) See  Army  I  G  3  d  (7)  (a)  [2]. 

Feb.  16,  1889  (25  Stat.  672) See  Official  records  1  C  1  a. 

Mar.  1,  1889  (25  Stat.  772) See  Militia  XVI  A;  F  to  1 1. 

Mar.  1,  1889(25  Stat.  774,  sec.  18) See  Militia  XVI  B. 

Mar.  1,  1889(25  Stat.  779) See  Militia  XVI  E ;  I  6;  J. 

Mar.  2,  1889  (25  Stat.  869) See  Desertion  XVI  D  1  to  2. 

Line  of  duty  II  A  2  a  (4)  (a)  [11. 

Mar.  3,  1889  (30  Stat.  1324) See  Army  II  B. 

Apr.  9,  1890  (26  Stat.  50) See  Laws  I  A  1. 

Apr.  11,  1890  (26  Stat.  54) See  Articles  op  War  CIII  F  1. 

Apr.  14,  1890  (26  Stat.  55) See  Discharge  XIV  B  1. 

June  13,  1890  (26  Stat.  154) See  Government  agencies  II  A  1. 

June  16,  1890  (26  Stat.  157) See  Desertion  XVI  A  1. 

Discharge  VI  D  6. 

Enlistment  I  D  3  b;  c  (18);  (18)  (d). 
Jume  16,  1890  (26  Stat.  158) See  Appropriations  XXXV. 

Desertion  V  A;  A  1;  1  a;  B  14  a. 

Discharge  VI  D  1  to  3. 
31106°— 12 69 


1090  APPENDIX   II. 

June  20,  1890  (26  Stat.  163) See  Enlistment  I  A  1. 

Aug.  2,  1890  (26  Stat.  316 See  Public  property  II  A  1. 

Aug.  19,  1890  (26  Stat.  333) See  Army  I  B  2  b  (3)  (a). 

Stpe.  19,  1890  (26  Stat.  426) See  Navigable  waters  I;  I  A  1  a  (2). 

Sept.  19,  1890  (26  Stat.  453,  sec.  4) See  Navigable  waters  IV;  IV  A;  1;  B: 

C;  F. 

Sept.  19, 1890  (26  Stats.  453  ,sec.  6) See  Navigable  waters  V  E  1. 

Sept.  19,  1890  (26  Stat.  454,  sec.  7) See  Navigable  waters  IV  E;  V  D  2;  3. 

Sept.  19,  1890  (26  Stat.  454,  sec.  9) See  Navigable  waters  II  D  1  a;  III. 

Sept.  19,  1890  (26  Stat.  454,  sec.  10) See  Navigable  waters  IX;  IX  A;  1. 

Sept.  19,  1890  (26  Stat.  455,  sec.  12) See  Navigable  waters  VI  A. 

Sept.  26,  1890  (26  Stat.  483) See  Laws  I  B  4  a. 

Sept.  27,  1890  (26  Stat.  491) See  Discipline  XII  B  1  a. 

Sept.  30,  1890  (26  Stat.  504) See  Enlistment  I  A  9  m. 

Retirement  II  A  to  B. 
Oct.  1,  1890  (26  Stat.  562) See  Army  I  G  3  b  (4)  (b). 

Office  III  B  3  a  (4)  (a). 

Pardon  XV  C  2  a. 

Rank  IB  lb  (1);  III  A;  V  C. 

Retirement  I  B  6  to  7;  C  2  b. 

Oct.  1,  1890  (26  Stat.  648) See  Desertion  V  A;  V  F  12. 

Jan.  13,  1891  (26  Stat.  716) See  Military  instruction  II  B  1  a. 

Feb.  9,  1891  (26  Stat.  737) See  Insignia  of  merit  II  A;  F;  H;  I. 

Feb.  16,  1891  (26  Stat.  763) See  Army  I  G  3  a  (2). 

Mar.  2,  1891  (26  Stat.  824) See  Desertion  XVI  D  1  a. 

Mar.  3,  1891  (26  Stat.  978) See  Appropriations  I  B. 

Mar.  3,  1891  (26  Stat.  1103) See  Line  of  duty  II  A  3;  3  b. 

Mar.  3,  1891  (26  Stat.  1110) See  Public  property  VI  to  VII. 

Feb.  23,  1892  (27  Stat.  825) See  Laws  I  B  2. 

Mar.  29,  1892  (27  Stat.  12) See  Insignia  of  merit  II C;  E;  F;  H;  1;  I. 

July  13,  1892  (27  Stat.  88) See  Navigable  Waters  I;  III. 

July  16,  1892  (27  Stat.  177) See  Government  agencies  IDS;  II  A 1. 

Private  debts  II. 

July  23,  1892  (27  Stat.  260) See  Intoxicants  II  F;  III  B;  B  1. 

July  27,  1892  (27  Stat.  278) See  Articles  of  War  CII  E  1. 

Contracts  XVII. 

Desertion  XVI  D  1  a. 

Discipline  IX HI;  XIII;  I;  XIV E 3. 

Enlistment  I  A  9  b;  k. 

Office  III  A  8  b  (2). 

July  28,  1892  (27  Stat.  321) See  Public  property  VII  B  2  to  3;  VIII 

A  4  b. 

Soldiers'  Home  I  G. 
July  30,  1892  (27  Stat.  336) See  Laws  II  A  1. 

Office  III  A  1  b;  b  (2);  (3)  (a);  (4). 

Aug.  1,  1892  (27  Stat.  340) See  Eight-hour  law  I  to  XII. 

Feb.  18,  1893  (27  Stat.  461) See  Patents  V. 

Feb.  27,  1893  (27  Stat.  478) See  Public  money  II  B  4. 

Feb.  27,  1893  (27  Stat.  482) See  Appropriations  XLVII  to  XLVIII; 

Feb.  27,  1893  (27  Stat.  486) See  Enlistment  I  D  2  a. 

Mar.  1,  1893  (27  Stat.  509) See  Contracts  V  B. 

Mar.  3,  1893  (27  Stat.  715,  sec.  5) See  Civilian  empoyees  I  B  3. 

Nov.  3,  1893  (28  Stat.  7) See  Military  instruction  II  B  1  a;  e;  2  b. 

Retirement  I  K  3  a. 

July  31,  1894  (28  Stat.  205,  sec  2) .See  Retirement  I  G  3  a  to  b. 

July  31,  1894  (28  Stat.  208) See  Army  I  B  lb. 

Aug.  1,  1894  (28  Stat.  216) See  Army  I  B  2  a  (4). 

Desertion  XVI  A  1. 

Enlistment  I A  9  f  (7)  (b);  B  2  a;  C  1  a; 
c;c  (l);d;e(l);D3c(2);(6);(7); 
(8);(ll);(12);(18);(18)(e);(^);(^)[l]. 

Militia  V  A. 

Aug.  6,  1894  (28  Stat.  235) See  Command  IV  B. 

Aug.  6,  1894  (28  Stat.  236) See  Appropriations  XXIV. 

Aug.  13,  1894  (2'8  Stat.  278) See  Bonds  I  A;  P;  V  G  to  J. 

Contracts  XIV  I;  XX  C  to  D. 


APPENDIX   II.  1091 

Aug.  13,  1894  (28  Stat.  279) See  Bonds  V  L. 

Aug.  18,  1894  (28  Stat.  338) See  Navigable  waters  V  E  3. 

Jan.  12,  1895  (28  Stat.  601) See  Army  I  B  2  h  (2). 

Mar.  2,  1895  (28  Stat.  788) See  Militia  XX  A. 

Mar.  2,  1895  (28  Stat.  807) See  Bonds  II  Q;  V  E. 

Mar.  2,  1895  (28  Stat.  814) See  Desertion  XVI  D  1  a. 

Mar.  2,  1895  (28  Stat.  957) See  Discipline  XVII  A  4  h  (1). 

May  2,  1896  (29  Stat.  473) See  Insignia  op  merit  I  A  1  a. 

May  28,  1896  (29  Stat.  189) See  Army  I  G  3  b  (2)  (a)  [3]  [6]. 

June  3,  1896  (29  Stat.  213) See  Appropriations  II. 

Contracts  XIII  E. 

June  3,  1896  (29  Stat.  225) See  Appropriations  IX. 

Jan.  21,  1897  (29  Stat.  494) See  Insignia  op  merit  I  B. 

Feb.  24,  1897  (29  Stat.  593) See  Discharge  XIV  A  4. 

Volunteer  Army  II  F  1  a  (1). 

June  4,  1897  (30  Stat.  50) See  Appropriations  IX. 

July  19,  1897  (30  Stat.  121) See  Appropriations  IX. 

Dec.  18, 1897  (30  Stat.  226) See  Appropriations  XIII. 

Mar.  15,  1898  (30  Stat.  316) See  Civilian  employees  I  Bl;  3;  4;  IV  A;  B. 

Apr.  22,  1898  (30  Stat.  361) See  Discharge  IX  A. 

Enlistment  I  B  2  e. 

Opfice  V  a  6  a. 

Rank  II  B  2. 

Apr.  22, 1898  (30  Stat.  362,  sec.  10) See  Office  IV  A  2  d  (3). 

Apr.  22, 1898  (30  Stat.  363,  sec.  13) See  Volunteer  Army  III  A  1. 

Apr.  22, 1898  (30  Stat.  363,  sec.  14) See  Office  IV  E  2  a  (1);  V  A  4  b;  e. 

Apr.  25,  1898  (30  Stat.  364) See  War  I  B  2. 

Apr.  26,  1898  (30  Stat.  365,  sec  6) See  Discipline  IV  B  2  a. 

Pay  and  allowances  I  C  6  c  (1). 

Rank  I  B  1  b  (1). 

May  11, 1898  (30  Stat.  404) See  Militia  XVI  B. 

May  11,  1898  (30  Stat.  405) See  Volunteer  Army  III  A  1. 

May  28,  1898  (30  Stat.  421) See  Office  V  A  7  d  (2)  (a). 

June  18,  1898  (30  Stat.  483) See  Discipline  VIII  G  2  b;  I  1  d;  XIV  D; 

XVI  E  4  c;  6. 

June  18,  1898  (30  Stat.  484,  sec.  6) See  Desertion  VA;A1;  1  a;  VB  12- 

14  a. 

July  1,  1898  (30  Stat.  628) See  Appropriations  LV  to  LVI. 

July  7, 1898  (30  Stat.  653) See  Civilian  employees  I  B  1. 

July  8,  1898  (30  Stat.  722) See  Public  property  VIII  A  4  c. 

July  7,  1898  (30  Stat.  721) See  Rank  I  D  3. 

July  8,  1898  (30  Sut.  730) See  Appropriations  LXIII  to  LXIV. 

Jan.  12, 1899  (30  Stat.  784) See  Enlistment  I  D  3  d  (2)  to  (5). 

Volunteer  Army  IV  C  1  a  (2)  to  (5) . 

Feb.  24,  1899  (30  Stat.  890,  sec.  4) See  Civilian  employees  I  B  4. 

Mar.  2,  1899  (30  Stat.  977) See  Enlistment  I  B  1  a. 

Mar.  2,  1899  (30  Stat.  978) See  Army  I  E  4. 

Enlistment  I  B  1  b  (1);  I  D  2  c. 

Mar.  2,  1899  (30  Stat.  979) See  Office  V  A  7  d  (2)  (a). 

Mar.  2, 1899  (30  Stat.  980) See  Volunteer  Army  IV  D  1  a  (2)  (b)  [1]. 

Mar.  2,  1899  (30  Stat.  981,  sec.  17) See  Intoxicants  I  A. 

Mar.  3,  1899  (30  Stat.  1065) See  Rank  II  B  1. 

Mar.  3,  1899  (30  Stat.  1073) See  Enlistment  I  D  3  d  (1)  to  (3). 

Office  V  A  5  a  (2). 

Mar.  3, 1899  (30  Stat.  1108) See  Public  property  IV  A  2  a. 

Mar.  3, 1899  (30  Stat.  1121) See  Navigable  waters  I. 

Mar.  3,  1899  (30  Stat.  1151,  sec  9) See  Navigable  waters  III  A  1. 

Mar.  3, 1899  (30  Stat.  1151,  sec.  10) See  Navigable  waters  I  B;  V;  V  A;  C. 

Mar.  3,  1899  (30  Stat.  1152,  sec.  17) See  Navigable  waters  IX  B. 

Mar.  3,  1899  (30  Stat.  1154,  sec.  19) See  Appropriations  XXXVIII. 

Navigable  waters  VII  C  1. 
Mar.  3,  1899  (30  Stat.  1154,  sec.  20) See  Appropriations  XXXVIII. 

Navigable  waters  VII  A;  C  2. 

Mar.  3,  1899  (30  Stat.  1223) See  Appropriations  XXXII. 

Mar.  3, 1899  (30  Stat.  1225) See  Appropriations  XVIII. 

Mar.  3, 1899  (30  Stat.  1324) See  Territories  III  B. 

Mar.  3, 1899  (30  Stat.  1377) See  Navigable  waters  V  C  1. 


1092  APPENDIX  II. 

May  25, 1900  (31  Stat.  183) See  Appropriations  XXX. 

May  26,  1900  (31  Stat.  205) See  Militia  IX  J. 

May  26,  1900  (31  Stat.  206) See  Appropriations  III. 

Territories  III  D  1. 

May  26,  1900  (31  Stat.  209) See  Retirement  II  A  4  b  (2) . 

May  26,  1900  (31  Stat.  211) See  Retirement  II  A  4  b  (1) ;  c. 

June  6,  1900(31  Stat.  656,  sec.  4) See  Army  I  D  1  a  (2)  (c). 

June  6,  1900  (31  Stat.  662) See  Militia  X  D;  XVI  I  3;  4. 

June  6,  1900  (31  Stat.  321,  sec.  26) See  Army  I  B  9. 

June  6,  1900  (31  Stat.  330,  sec.  29) See  Territories  III  B. 

Feb.  1,  1901  (31  Stat.  746) See  Civilian  employees  I  A  2;  C  3. 

Feb.  2 ,  1901  (31  Stat.  748) See  Army  I  G  3  b  (1). 

Office  V  A  7  d  (2)  (6). 

Rank  I C 1 . 

Retirement  I  B  4  a. 

Feb.  2,  1901  (31  Stat.  748,  sec.  1) See  Office  III  E  1. 

Feb.  2,  1901  (31  Stat.  749,  sec.  6) See  Army  I  G  2  b  (2) 

Feb.  2,  1901  (31  Stat.  751) See  Bonds  II  H. 

Feb.  2,  1901  (31  Stat.  751,  sec.  15) See  Army  I  G  3  a  (4)  (a)  [1]. 

Feb.  2,  1901  (31  Stat.  751,  sec.  16).. See  Army  II  G  1  a. 

Office  III  D  1*  2  a 

Feb.  2,  1901  (31  Stat.  753,  sec.  18) See  Army  I  G  3  d  (4)  (a);  (d). 

Feb.  2,  1901  (31  Stat.  753,  sec.  19) See  Absence  I  D. 

Army  I  G  3  d  (6)  (a)  [2]. 

Feb.  2,  1901  (31  Stat.  754,  sec.  22) See  Army  I  G  2  a  (1). 

Feb.  2,  1901  (31  Stat.  755,  sec.  26) See  Army  I  B  2  a  (1). 

Office  III  D  1  d'  3 

Feb.  2,  1901  (31  Stat.  755,  sec.  27) See  Office  III  D  3.   '    * 

Feb.  2,  1901  (31  Stat.  756,  sec.  30) See  Discharge  VI  C  1;  2. 

Feb.  2,  1901  (31  Stat.  756,  sec.  32) See  Office  III  B  3  a  (4)  (a);  (&). 

Feb.  2,  1901  (31  Stat.  757,  sec.  34) See  Retirement  IF;  II  A  4  c. 

Feb.  2,  1901  (31  Stat.  757,  sec.  36) See  Command  V  B  4. 

Discharge  VI  D  6. 

Pay  and  allowances  I  C  5  c. 
Feb.  2,  1901  (31  Stat.  758,  sec.  38) See  Intoxicants  II  A  1;  2;  C;  D;  IV. 

Militia  XV. 

Feb.  15,  1901  (31  Stat.  790) See  Public  property  VI  D  2. 

Feb.  26,  1901  (31  Stat.  810) See  Military  instruction  II  B  1  f. 

Mar.  2,  1901  (31  Stat.  895) See  Appropriations  XLIV  to  XLV. 

Mar.  2,  1901  (31  Stat.  902) See  Army  I  G  3  a  (2). 

Mar.  2,  1901  (31  Stat.  903) See  Absence  I  B  1  i. 

Mar.  2,  1901  (31  Stat.  905) See  Army  I  G  3  d  (8)  (c)  [11. 

Contracts  IV  A. 

Mar.  2,  1901  (31  Stat.  911) See  Army  I  D  3  b  (2)  (a). 

Mar.  2,  1901  (31  Stat.  914) See  Office  III  E  3. 

Mar.  2,  1901  (31  Stat.  950) See  Discipline  X  I  6. 

Mar.  2,  1901  (31  Stat.  951) See  Articles  of  War  LXXXIII; 

LXXXVI  B  1. 

Feb.  14,  1902  (32  Stat.  12) See  Appropriations  III;  LIX  to  LX. 

May  13,  1902  (32  Stat.  198) See  Appropriations  XVI. 

June  13,  1902  (32  Stat.  342) See  Navigable  waters  X  A  1. 

June  13,  1902  (32  Stat.  373) See  Public  property  I  A  4. 

June  13,  1902  (32  Stat.  373,  sec.  5) See  Navigable  waters  X  F  2;  4. 

Army  I  B  2  e  (1). 

June  30,  1902  (32  Stat.  507) See  Appropriations  X. 

June  30,  1902  (32  Stat.  516) See  Appropriations  XXVIII. 

July  1,  1902  (32  Stat.  615) See  Militia  XVI  E. 

July  1,  1902  (32  Stat.  629) See  Discharge  XIV  D  1;  2;  4. 

Jan.  21,  1903  (32  Stat.  775) See  Insignia  op  merit  III  B  1. 

Militia  IV  B;  VI  C  1  c  (1);  XVIII  A. 

Jan.  21,  1903  (32  Stat.  775,  sec.  3) See  Militia  III  to  IV;  IX  A  2  a;  XVI  A; 

XXI 

Jan.  21,  1903  (32  Stat.  776,  sec.  4) See  Militia  I  A;  D;  V  A. 

Jan.  21,  1903  (32  Stat.  776,  sec.  9) See  Militia  II  B. 

Jan.  21,  1903  (32  Stat.  776,  sec.  12) See  Militia  XIV  A. 

Jan.  21,  1903  (32  Stat.  777,  sec.  13) See  Militia  XII  A. 


APPENDIX  II.  1093 

Jan.  21,  1903  (32  Stat.  777,  sec.  14) See  Militia  VI  A  2  a;  B  1  a  to  e  (5);  C  1 

c  (3);  2  b;  c;  VII  F;X  A  2;  C;  XI 
A;  B;  D;  E;  Q;  XVI  E;  XVIII  A;  B. 

Jan.  21,  1903  (32  Stat.  777,  sec.  15) See  Militia  II  B;  VI  B  1  e  (9);  2  b;  c;  e; 

h;  i;  k;  1;  XI  A;  C;  E;  L;  XVIII  B. 

Jan.  21,  1903  (32  Stat.  778,  sec.  16) See  Militia  VI  A  1. 

Jan.  21,  1903  (32  Stat.  778,  sec.  17) See  Militia  IX  A  1;  B  1;XIII  B;  XVI 1 1. 

Jan.  21,  1903  (32  Stat.  778,  sec.  18) See  Militia  VI  D  1. 

Jan.  21,  1903  (32  Stat.  779,  sec.  20) See  Militia  VI  A  2  b;  c. 

Jan.  21,  1903  (32  Stat.  779,  sec.  21) See  Militia  VI  B  1  e  (9);  XII  B. 

Jan.  21,  1903  (32  Stat.  779,  sec.  23) See  Militia  VI  A  1;  XVII  A. 

Jan.  30,  1903  (32  Stat.  783) See  Army  II  G  1  a;  2  a  (1). 

Command  I  C;  V  B  5. 

Territories  IV  B  2;  2  a. 

Feb.  14,  1903  (32  Stat.  830) See  Office  III  D  1  b;  c;  2  a. 

Mar.  2,  1903  (32  Stat.  927) See  Appropriations  XXII. 

Mar.  2,  1903  (32  Stat.  932) See  Militia  VI  A  2  b. 

Mar.  2,  1903  (32  Stat.  936) See  Contracts  VII  G  2. 

Mar.  2,  1903  (32  Stat.  942) See  Militia  XII  A;  B;  XVI  I  2. 

Mar.  2,  1903  (32  Stat.  952) See  Public  money  IX. 

Apr.  21,  1904  (33  Stat.  225) See  Retirement  I  K  to  L. 

Apr.  21,  1904  (33  Stat.  226) See  Military  instruction  II  B  2  e  (1). 

Apr.  23,  1904  (33  Sta,t.  264) See  Militia  VI  A  2  b;  VII  C. 

Retirement  ICtoD;K2to3;  II  A4 
b;b(l);c. 

Apr.  23,  1904  (33  Stat.  265) See  Militia  VI  B  2  j;  m. 

Apr.  23,  1904  (33  Stat.  269) See  Desertion  V  A  1  a. 

Apr.  23,  1904  (33  Stat.  272) See  Articles  op  War  LII  B. 

Apr.  23,  1904  (33  Stat.  274) See  Insignia  of  merit  I  A  to  B. 

Militia  XVIII  A. 

Apr.  27,  1904  (33  Stat.  391) See  Territories  III  G  1. 

Apr.  28,  1904  (33  Stat.  496) See  Appropriations  XXVIII. 

Navigable  waters  XI  D. 

Apr.  28,  1904  (33  Stat.  518) See  Army  I  G  3  b  (2)  (a)  [3]  [e]. 

Jan.  5,  1905  (33  Stat.  599) See  Red  Cross  I  A;  II  B. 

Feb.  3,  1905  (33  Stat.  663) See  Contracts  VII  B. 

Feb.  20, 1905  (33  Stat.  725) See  Flag  II. 

Feb.  24, 1905  (33  Stat.  811) See  Contracts  XX  C  5. 

Mar.  2,  1905  (33  Stat.  827) See  Appropriations  XI. 

Mar.  2,  1905  (33  Stat.  831) See  Retirement  I  K  3  a. 

Mar.  3,  1905  (33  Stat.  845) See  Appropriations  XXX. 

Mar.  3,  1905  (33  Stat.  850) See  Office  III  E  3. 

Rank  II  C  1. 

Mar.  3,  1905  (33  Stat.  860) See  Contracts  VII  F  2. 

Mar.  3,  1905  (33  Stat.  986) See  Militia  IX  B  1. 

Mar.  3,  1905  (33  Stat.  1257) See  Contracts  XIII  B. 

Feb.  27,  1906  (34  Stat.  49) See  Contracts  XIII  B. 

Mar.  9,  1906  (34  Stat.  56) See  Appropriations  LVII  to  LVIII. 

Civilian  employees  XVI  C. 

Contracts  VII  C. 

Public  property  IV  B. 

Mar.  23,  1906  (34  Stat.  84) See  Navigable  waters  I. 

June  12,  1906  (34  Stat.  240) See  Appropriations  X;  XI. 

Army  I  G  3  b  (2)  (a)  [3]  [f]. 

June  12,  1906  (34  Stat.  245) See  Militia  VI  A  2  b. 

June  12,  1906  (34  Stat.  246) See  Militia  VI  A  2  a. 

June  12,  1906  (34  Stat.  249) See  Militia  VII  C. 

June  12,  1906  (34  Stat.  252) See  Militia  XI  I. 

June  12,  1906  (34  Stat.  255) See  Contracts  XIII  C. 

June  12,  1906  (34  Stat.  256) See  Army  I  G  3  d  (8)  (d). 

June  12, 1906  (34  Stat.  258) See  Contracts  VII  E  to  F;  XVI  G. 

June  21,  1906  (34  Stat.  386) See  Navigable  waters  I. 

June  22,  1906  (34  Stat.  449) See  Militia  VI  A  2  a;  C  1  c  (1);  g;  2  a;  VII 

A;  IXB  1;  D;E;G;  H;  XC;E;XIN. 

June  22,  1906  (34  Stat.  450,  sec.  3) See  Militia  VIII  A. 

June  25,  1906  (34  Stat.  455) See  Army  I  G  3  b  (4)  (6)  (c). 

June  28,  1906  (34  Stat.  836) See  Enlistment  I  D  3  e  (1). 


1094  APPENDIX  II. 

June  29,  1906  (34  Stat.  596,  sec.  4) See  Enlistment  I  B  1  b  (2). 

Alien  II, 

June  29,  1906  (34  Stat.  621) See  Insignia  of  merit  I  E  2. 

June  29,  1906  (34  Stat.  626) See  Navigable  waters  V  H. 

June  30,  1906  (34  Stat.  744) See  Appropriations  IX. 

June  30,  1906  (34-Stat.  750) See  Militia  XI  Q. 

Jan.  25,  1907  (34  Stat.  861) See  Militia  III  D. 

Office  III  C  1. 

Mar.  2,  1907  (34  Stat.  1073) See  Bonds  I  N. 

Mar.  2,  1907  (34  Stat.  1154) See  Militia  XVIII  B. 

Mar.  2,  1907  (34  Stat.  1158) See  Appropriations  LIV  to  LV. 

Mar.  2,  1907  (34  Stat.  1166) See  Pay  and  allowances  II A  2  b  (1)  (a). 

Mar.  2,  1907  (34  Stat.  1167) See  Pay  and  allowances  II  A  1  to  2. 

Mar.  2,  1907  (34  Stat.  1175) See  Militia  XII  A. 

Apr.  23,  1908  (35  Stat.  66) See  ARMYlG3d  (2)  (a);  (6);  (3)  (a);  (6);(c) 

[4]. 

Rank  I  B  1  c  (2)  (6). 
Apr.  23,  1908  (35  Stat.  67; See  Army  I  G  3  d  (4)  (a). 

Discharge  XVII  B. 

Retirement  I  B  6  c  (4);  7  a. 

May  11,  1908  (35  Stat.  106) See  Appropriations  X. 

May  11,  1908  (35  Stat.  108) See  Gratuity  I  to  II. 

Militia  XI  F. 

Pay  and  allowances  I  B  7  b;  II  A 
2d(l)(a). 

Retirement  I  K  4. 
May  11,  1908  (35  Stat.  109) See  Discharge  X  B. 

Enlistment  I  B  2  b;  b  (1). 
May  11,  1908  (35  Stat.  110) See  Absence  II  B  9. 

Army  BANDS  I  A  6;  B  1;  C  1  to  4;  D  3. 

May  11,  1908  (35  Stat.  Ill) See  Army  I  G  3  d  (5)  (a). 

May  11,  1908  (35  Stat.  119) See  Retirement  I  K  5. 

May  11,  1908  (35  Stat.  121) See  Appropriations  XXVIII. 

May  11,  1908  (35  Stat.  122) See  Appropriations  XLV  to  XLVI. 

May  11,  1908  (35  Stat.  124) See  Militia  III  D. 

May  22,  1908  (35  Stat.  244,  sec.  4) See  Army  I  B  2  g. 

May  27,  1908  (35  Stat.  392,  sec.  4) See  Army  I  G  2  a  (1);  (1)  (a). 

Office  III  A  1  c  (1). 

May  27,  1908  (35  Stat.  399) See  Militia  I  A;  C;  E;  III  B 

May  27,  1908  (35  Stat.  399,  sec.  3) See  Militia  IX  A  2  a. 

May  27,  1908  (35  Stat.  402,  sec.  9) See  Milpiia  VI  B  2  b. 

May  27,  1908  (35  Stat.  403) See  Militia  VI  A  2  c. 

May  30,  1908(35  Stat.  556) See  Civilian  employees  XII  A;  B  to  C. 

Claims  XI;  XII  F. 

Feb.  18,  1909  (35  Stat.  629) See  Militia  XVI  H. 

Feb.  18,  1909  (35  Stat.  629,  sec.  11) See  Militia  XVI  D. 

Feb.  18,  1909  (35  Stat.  631,  sec.  20) See  Militia  XVI  C. 

Feb.  18, 1909  (35  Stat.  636,  sec.  76) See  Militia  XVI  D.       ' 

Feb.  24,  1909  (35  Stat.  645) See  Civilian  employees  XII  A. 

Mar.  3,  1909  (35  Stat.  735) See  Gratuity  I  B  to  II. 

Mar.  3,  1909  (35  Stat.  737) See  Retirement  I  B  6  c  (4);  7  to  8. 

Mar.  3,  1909  (35  Stat.  742) See  Militia  VI  A  1. 

Mar.  3,  1909  (35  Stat.  747) See  Appropriations  LXV  to  LXVI. 

Mar.  3,  1909  (35  Stat.  751) See  Retirement  I  B  4  a. 

Mar.  3,  1909  (35  Stat.  836) See  Retirement  I  K  2  e. 

Mar.  4,  1909  (35  Stat.  1006) See  Appropriations  XII. 

Mar. 4, 1909  (35  Stat.  1090,  sees.  13  and  14). See  Army  II  K  1  a;  b. 

Mar.  4,  1909  (35  Stat.  1096,  sec.  36) See  Desertion  XXII  A. 

Aug.  5,  1909  (36  Stat.  122) See  Appropriations  X;  XI. 

Mar.  23,  1910  (36  Stat.  241) See  Bonds  V  L. 

Mar.  23,  1910  (36  Stat.  244) See  Absence  I  B  1  g  (2). 

Mar.  23,  1910  (36  Stat.  245) See  Appropriations  LVI  to  I.VII. 

Mar.  23,  1910(36  Stat.  253) See  Pay  and  allowances  I  C6b  (5). 

Mar.  23,  1910  (36  Stat.  255) See  Pay  and  allowances  II  A  2  a  (2)  (6). 

Apr.  19,  1910  (36  Stat.  312) See  Army  I  D  3  b  (2)  (a). 

June  17,  1910  (36  Stat.  531,  sec.  4) See  Contracts  IV  B. 

June  23,  1910  (36  Stat.  593) See  Navigable  waters  I;  IX  A  2. 


APPENDIXES   II   AND   III.  1095 

June  23,  1910  (36  Stat.  604) See  Red  Cross  I  A;  II  B;  C. 

June  25,  1910  (36  Stat.  635) See  Navigable  waters  X  E  1. 

June  25,  1910  (36  Stat.  851) See  Patents  III  A;  VII  C. 

June  25,  1910  (36  Stat.  723) See  Appropriations  LXII  to  LXIII. 

Jan.  19,  1911  (36  Stat.  894) See  Desertion  XX  D. 

Feb.  24,  1911  (30  Stat.  1457) See  Appropriations  XIX. 

Feb.  27,  1911  (36  Stat.  957) See  Navigable  waters  X  B  1  a. 

Mar.  1,  1911  (36  Stat.  963) See  Uniform  I  A  1. 

Mar.  3,  1911  (36  Stat.  1047) See  Appropriations  XVII. 

Mar.  3,  1911  (36  Stat.  1048) See  Desertion  V  A. 

Mar.  3,  1911  (36  Stat.  1058) See  Rank  II  A. 

Mar.  4,  1911  (36  Stat.  1343) See  Contracts  XXIII  H. 

Mar.  4,  1911  (36  Stat.  1452) vSee  Civilian  employees  XII  A. 


Appendix  III. 
REFERENCES  TO  THE  REVISED  STATUTES. 

Sec.  183 See  Office  III  A  8  b  (1). 

Sec.  189 See  Army  I  B  5  a. 

Claims  XII  N. 

Discipline  III  C  2  b. 

Sec.  214 See  Appropriations  XXXIII. 

Sec.  216 See  Contracts  L  I. 

Sec.  218 See  War  I  C  6  c  (3)  (e)  [2]. 

Sec.  224 See  Discharge  XIV  B  4;  D  1. 

Laws  I  B  2. 
Sec.  355 See  Militia  VI  B  1  c. 

Navigable  waters  X  E. 

PublicpropertyII  A;  A6:  V;  VE  la 
(2);  VG2. 

Sees.  356  to  367 See  Army  I  B  5  a. 

Sec.  365 See  Claims  XII  M;N. 

Sec.  366 • See  Claims  XII  N. 

Sec.  848 See  Discipline  X  I  5. 

Sec.  860 See  Discipline  V  B . 

Sec.  877 See  Territories  II  A. 

Sec.  882 See  Claims  XI. 

Discipline  XI  A  17  a  (2)  (a)  [1]  [b]. 

Sec.  911 See  Territories  II  A. 

Sec.  952 See  Pay  and  allowances  I  B  5  a. 

Sec.  1014 See  Command  V  A  3  c  (1). 

Sec.  1045 See  Articles  of  War  CIII  E. 

Sec.  1059 See  Claims  X;  Xll  Q. 

Sec.  1076 See  Army  I  B2  c  (1). 

Sec.  1094 See  Army  I  D  3  a. 

Sec.  1097 SeeARMYlB2f. 

Sec.  1098 See  Army  I  B  2  f . 

Sec.  1099 See  Army  I  E  4. 

Sec.  1102 See  Army  I  E  4. 

Laws  II  A  1  d. 

Sec.  1104 See  Enlistment  I  A  12. 

Sec.  1106 See  Army  I  E  4. 

Sec.  1108 See  Enlistment  I  A  12. 

Sec.  1111 See  Rank  I  A  1. 

Sec.  1114 See  Articles  of  War  LXXIII  A. 

Sec.  1116 See  Enlistment  I  B  1  a;  D  1. 

Sec.  1116  to  1118 See  Enlistment  I  A  9  f  (5);  B  3  a. 

Sec,  1117 See  Enlistment  I  A  9  c  (1);  B  1  a;  1  b  (3). 

Sec.  1118 See  Enlistment  I  A  9  c  (2) ;  B  3  b. 

Sec.  1136 See  Appropriations  XXVIII. 

Sec.  1137 See  Retirement  III. 

Sec.  1142 See  Army  I  E  2  a. 

Sec.  1153 See  Public  money  V. 


1096  APPENDIX   III. 

Sec.  1158 See  Command  III  C. 

Sec.  1162 See  Enlistment  I  A  10. 

Sec.  1167 See  Army  I  G  3  b  (4)  (a). 

Military  instruction  II  B  2  c. 

Sec.  1191 See  Bonds  I0;IIG;J;L;VA. 

Sec.  1199 See  Discipline  XITI  A. 

Sec.  1202 See  Articles  of  War  LXXXVI  Bib. 

Discipline  IV  B  4;  4  a;  X  K  3. 

Sec.  1203 '..See  Discipline  IV  B  2. 

Sec.  1211 See  Rank  IV  B. 

Sec.  1212 See  Retirement  I  F. 

Sec.  1216 See  Insignia  op  merit  II  C;  E;  F;  H;  I. 

Sec.  1219 See  Rank  II  A  2;  B  1. 

Sec .  1222 See  Army  IE3a(l);b;ba). 

Militia  III  F;    VI  A  2  b. 

Office  IV  A  2  to  3. 

Sec.  1223 See  Retirement  I  G  2  f;  3  a  (2)  (a). 

Sec.  1224 See  Office  IV  B  to  C. 

Sec.  1225 See  Army  II  CI. 

Bonds  IV  A;  L. 

Military  instruction  II  B  1  a;  c;  d; 
2  a;  b. 

Retirement  I  K  3  to  4. 

Sec.  1228 See  Office  III  F  1;  IV  E  1  b. 

Sec.  1229 See  Desertion  XX  D;E;F. 

Discharge  XX  B. 

Enlistment  I  B  3  b. 

Office  IV  E  2  a. 
Sec.  1230 See  Desertion  XX  F. 

Discipline  III  B  2  a;  b;  XIV  H  2. 

Sec.  1231 See  Pay  and  allowances  I  C  6  b  (2). 

Sec.  1232 See  Army  I  CI. 

Sec.  1237 See  Private  debts  IX. 

Sec.  1241 See  Navigable  waters  X  F  3. 

Public  property  IX  A  to  B. 

Tax  III  M. 

Sec.  1242 See  Pay  and  allowances  II  A  3  a  (4)  (a) 

Sec.  1243 See  Army  I  G  3  a  (2). 

Retirement  I  A  1  a;  b. 

Sec.  1244 See  Army  I  G  3  a  (2) . 

Sec.  1246 See  Retirement  I  B  6b  (2). 

Sec.  1246  to  1252 See  Retirement  I  B  1  d  (2). 

Sec.  1248 See  Retirement  I  B  1;  1  b  (1)  (6);  c  (3); 

d(l). 

Sec.  1249 See  Retirement  I  B  lb  (1)  (a);  (6). 

Sec.  1251 See  Retirement  I  B  1  a(l);  3  a. 

Sec.  1252 See  Discipline  II  D  3. 

Retirement  I  B  3  a. 

Sec.  1253 See  Retirement  I  N  to  O. 

Sec.  1255 See  Retirement  I  B  6e  (2). 

Sec.  1256 See  Retirement  I  G  2  b. 

Sec.  1257 See  Retirement  I  B  6  e  (2). 

Sec.  1259 See  Retirement  I  G. 

Sec.  1262 See  Pay  and  allowances  I  B  6  a. 

Sec.  1265 See  Absence  IB  lg(2)  fa);  ln(l);  II  A  2. 

Sec.  1270 See  Pay  and  allowances  I  B  7  a  (1). 

Sec.  1275 See  Retirement  I  N  3. 

Sec.  1282 See  Enlistment  I  D  1. 

Sec.  1284 See  Enlistment  I  D  1. 

Sec.  1285 See  Insignia  of  merit  II  I. 

Sec.  1287 See  Pay  and  allowances  I  C  6  a;  b  (2). 

Contracts  XIII  A. 

Sec.  1288 See  War  I  C  11  d  (1). 

Sec.  1290 See  Pay  and  allowances  III  C  2  c  (1); 

(2);  (4). 

Sec.  1296 See  Insignia  of  merit  III  B  1 . 

Pay  and  allowances  II  A  3  a  (4)  (a) 


APPENDIX   III.  1097 

Sec.  1298 See  Pay  and  allowances  II  A  3  a  (4)  (d) 

[1]  [a];  [6]. 
Sec.  1302 See  Pay  and  allowances  II  A  3  a  (4)  (d) 

[1]  [a]. 

Sec.  1303 See  Pay  and  allowances  II  A  3  a  (4)  (a). 

Sec.  1304 See  Claims  XII  G. 

Public  property  I  F  4. 
Sec.  1305 See  Appropriations  XXXIII, 

Desertion  XIV  E. 

Sec.  1308 See  Appropriations  XXXIII. 

Sec.  1315 See  Army  I  D  1  a  (2);  (2)  (a)  [1];  [2]  [a];  (b) 

[i];(c). 

Sec.  1317 See  Army  I  D  1  a  (1);  (2);  (2)  (b)  [1];  d. 

Sec.  1318 See  Army  I  D  1  b  (1). 

Sec.  1325 SeeARMYlDld(2);(3);2b. 

Sec.  1330 See  Absence  I  B  lg(l);(2). 

Sec.  1343 See  War  I  C  3  d;  8  a  (3)  (e). 

S#c.  1345 See  Eight-hour  law  VII. 

Sec.  1351 See  Discipline  XVII  A  4g(l);  (2);  (3). 

Sec.  1352 See  Discharge  II  B  2  a. 

Enlistment  I  D  3  c  (6);  (14). 

Sec.  1547 See  Laws  II  A  1  a. 

Sec.  1642 See  Militia  I  C;  E. 

Sec.  1658 See  Articles  of  War  LX  E  2. 

Sec.  1661... See  Appropriations  V  B. 

Militia  II  A  1;  III  B;  VI  A  2  c;  B  1  e 
(5);(6);Clb;c(l);(3);d;f;h;j;2a;c; 
VII  A;  B;  F;  IX  B  1;  E;  X  E;  XI  F; 
H;M;N;  XIIB;  XIVB:  XVI  I;  I  3; 
XVIII  A. 
Sec.  1757 See  ARMYlG3d  (4)  (c). 

Office  III  A  6  a  (1). 

Sec.  1758 See  Office  III  A  8  b  (2). 

Sec.  1763  to  1765 See  Civilian  employees  X  A. 

Sec.  1764 See  Civilian  employees  X  C. 

Sec.  1765 See  Army  I  G  3  b  (4)  (c?). 

Civilian  employees  X  C. 
Sec.  1766 See  Government  agencies  IDS. 

Pay  and  allowances  III  B  2. 

Public  money  IV  to  V. 

Sec.  1791 See  Flag  I. 

Sec.  1792 See  Flag  I. 

Sec.  1860 See  Office  IV  A  2  d  (2). 

Sec.  1876 See  Claims  XII  M. 

Sec.  1892 See  Articles  of  War.XCVII  C. 

Sec.  1910 See  Territories  II  A. 

Sec.  1996  and  1998 See  Desertion  X  A;  XIV  B;  XV  E   1; 

XV  F. 

Enlistment. 

Discipline  X  A  1. 

Sec.  1999 See  Desertion  IX  M. 

Sec.  2062 See  Army  II  CI. 

Sec.  2139 See  Intoxicants  II  F;  III  A  1;  B. 

Territories  III  E. 

Sec.  2140 See  Intoxicants  III  C  2;  D  1. 

Sec.  2147 See  Army  1 1  C. 

Sec.  2150 See  Army  II  C;  D. 

Intoxicants  III  C  1. 

Sec.  2151 See  Army  1 1  C  . 

Sec.  2152 See  Army  lie. 

Sec .  2165 See  Alien  III. 

Sec.  2166 See  Militia  XIX  A. 

Office  III  A  1  b  (1). 

Discharge  VI  D  4. 

Sec.  2190 See  Army  II  C  1. 

Sec.  3473 See  Public  money  IX. 

Sec.  3474 See  Public  money  IX. 


1098  APPENDIX   III. 

Sec.  3475 See  Public  money  IX. 

Sec.  3476 See  Public  money  IX. 

Sec.  3477 See  Contracts  XIV  to  XV. 

Sec.  3480 See  Claims  XII  A. 

Sec.  3483 See  War  I  C  6  c  (2). 

Sec.  3617 See  Public  money  I  to  II;  XI. 

Sec.  3618 See  Public  money  I  to  II;  II  a;  XI. 

Public  property  I  A  4;  IX  A  2  e; 
3  to  4. 

Sec.  3620 See  Public  money  II  A;  III  to  IV. 

Sec.  3621 See  Appropriations  VII. 

Sec.  3622 See  Articles  of  War  LXII  C  3. 

Sec.  3639 See  Appropriations  VII. 

Sec.  3648 See  Contracts  XII. 

Sec.  3651 See  Contracts  LII. 

Public  money  VIII. 

Sec.  3678 See  Appropriations  II;  IV;  VI. 

Sec.  3679 See  Appropriations  II;  IX. 

Contracts  XIII  A;  B ;  E. 

Sec.  3689 See  Soldiers'  Home  I  F. 

Sec.  3690 See  Appropriations  V  to  VI. 

Militia  X  A  1. 

Sec.  3709 See  Contracts  III  to  IV;  VI  A;  VII  A  1; 

T{'  (^'  V)'  C  I'^'TT 
Sec.  3716 See  Discipline  XVII  A  4g  (2). 

Laws  I  B  5. 
Sec.  3732 See  Contracts  XIII  B;  C;  E. 

Appropriations  II;  IX. 
Sec.  3733 See  Appropriations  II;  IX. 

Contract  XIII  D. 
Sec.  3736 See  Appropriations  III. 

Navigable  waters  X  D. 

Public  Property  II A  to  B;  IVAla(l). 
Sec.  3737 See  Articles  op  War  LXII  D. 

Contracts  XIV  TO  XV. 

Public  property  VII  A  1. 

Sec.  3738 See  Eight-hour  law  I;  IX. 

Sec.  3739 See  Contracts  XV  to  XVI. 

Sec.  3740 See  Contracts  XV  to  XVI. 

Sec.  3741 See  Contracts  XV  to  XVI. 

Sec.  3742 See  Contracts  XV  to  XVI. 

Sec.  3744 See  Contracts   XI   A;   C;   XVI;   XVII; 

XVIII. 

Public  proprety  VII  A  6. 
Sec.  3745 See  Contracts  XVII. 

Office  III  A  8  b  (2). 
Sec.  3748 See  Command  V  A  3  e. 

Militia  II  D. 

Public  property  IX  B  2. 

Sec.  3828 See  Contracts  V  to  VI. 

Sec.  4661 See  Public  property  V  G  3. 

Sec.  4687 See  Army  II  C  1. 

Sec.  4700 See  Line  of  DUTY  II  A  2a  (4)  (a)  [2]. 

Sec.  4745. See  Soldiers'  Home  I  E. 

Sec.  4747 See  Pensions  II  A. 

Line  op  duty  II  A  3;  3  a  (2);  b. 

Sec.  4788 See  Line  of  duty  II  A  3  b. 

Sec.  4790 See  Line  op  duty  II  A  3  b. 

Sec.  4824 See  Soldiers'  Home  I  A. 

Sec.  4835 See  Soldiers'  Home  II. 

Sec.  4843 See  Insanity  I  A;  A  1;  2;  3;  B  1;  2;  C. 

Sec.  4852 See  Insanity  I  A  2. 

Sec.  4870 See  Public  property  IV  A  1  a  (1) . 

Sec.  4870  to  4872 See  Public  property  IV  A  1  a. 

Sec.  4871 See  Public  property  IV  A  1  a  (1) ;  (2). 

Sec.  4872 See  Public  property  IV  A  1  a  (2) ;  V  A. 


APPENDIXES  III  AND  IV.  1099 

Sec.  4874 See  Public  property  IV  A  3  a. 

Sec.  4878 : See  Public  property  II  A  6  c  ;  I V  A  1  b ;  4  a. 

Sec.  4881 See  Public  property  IV  A  3  b. 

Sec.  5281  to  5291 See  Army  II  K  1  a. 

Sec.  5287 See  Army  II  K  1  c. 

Sec.  5297 See  Army  II  D;  F  1. 

Sec.  5298 See  Army  II  D;  F  1;  I  6. 

Militia  I  E. 

Sec.  5299 See  Army  II  F  1 ;  I  6. 

Sec.  5300 See  Army  II  II. 

Sec.  5339 See  Discipline  II  D  11  a. 

Sec.  5339  to  5342 See  Discipline  VIII  D  4. 

Sec.  5388 See  Public  property  III  H  3. 

Sec.  5391 See  Public  property  V  H  1  b. 

Sec.  5392 See  Enlistment  I  A  2  a. 

Sec.  5438 See  Army  I  B  5  b. 

Militia  II  D. 

Pay  and  allowances  II  A  3  a  (4)  (a). 

Sec.  5439 See  Desertion  XXII  A. 

Sec.  5455 See  Desertion  III  E. 

Sec.  5488 See  Appropriations  VII. 

Articles  of  War  LXII  C  2. 

Public  money  II  A. 
Sec.  5490 See  Appropriations  VII. 

Discipline  XII  A  12  b. 

Sec.  5491 See  Articles  of  War  LXII  C  3. 

Sec.  5495 See  Articles  of  War  LX  A  4. 

Sec.  5497 See  Appropriations  VII. 

Sec.  5498 See  Claims  X. 

Retirement  I  G  2  a;  II  B  2. 

Sec.  5586 See  War  I  C  6  c  (3)  (6). 

Sec.  5596 See  Public  property  IV  A  1  a. 

Laws  I  A  3. 


Appendix  IV. 
EEFEEENCES   TO   THE  ARTICLES   OF  WAE. 

Art.  2 See  Enlistment  I  A  2;  2  a. 

Office  III  A  8  b  (1). 
Art.  3 See  Articles  of  War  III  A. 

Discipline  XII  B  3  i. 

Enlistment  I  A  9  f  (5). 
Art.  4 See  Articles  of  War  XLVIII  B. 

Discharge  III  D;  XI  B  1;  XIII  E  2; 
XIV  A  1;  XVDlb;  XX  D  2. 

Retirement  II  F  3. 

Art.  6 See  Discipline  XII  B  3  i. 

Art.  8 See  Articles  of  War  VIII  A. 

Discipline  XII  B  3  i. 

Art.  11 See  Absence  I  C  4  a. 

Art.  13 See  Discipline  XII  B  3  i. 

Art.  14 See  Discipline  XII  B  3  i. 

Art.  15 See  Discipline  XII  B  3  i. 

Art.  17 See  Pay  and  allowances  II  A  3  a  (4)  (a). 

Articles  of  War  XVII;  LXII. 

Words    and    phrases,   "Accouter- 
ments." 

Art.  18 See  Discipline  XII  B  3  i. 

Art.  19 See  Articles  of  War  XIX. 

Art.  20 See  Articles  of  War  XXI  A;  XXII  A. 

Discipline  II  D  13  a;  17  a. 


1100  APPENDIX  IV. 

Art.  21 See  Articles    of  War   XXI;    XXII  A: 

LXXXIII  B  1;  XCVII  A;  E;  CII  C. 
Discipline   II   D   14  a;  20;  VI  G  3; 
VIII  D  4;  XII  A  6  c;  8  a  (1);  (2); 
(3);  (3)  (a);  XVI  E  2. 
Private  debts  VII. 
Words  and  Phrases,  ''Officer." 

Art.  22 See  Articles  of  War  XXII;  XCVII  A 

Discipline  XII  A  6  c;  XIV  E  9  d 

(1)  (6). 
Art.  24 See  Army  II  D. 

Articles  of  War  XXIV. 

Command  VI  A  1  a. 

Discipline  I  D  1. 

Art.  25 See  Articles  of  War  XXV. 

Art.  26 See  Articles  of  War  XXVI. 

Discipline  XII  B  3  i. 

Art.  27 See  Discipline  XII  B  3  i. 

Art.  28 See  Discipline  XII  B  3  i. 

Art.  29 See  Articles  of  War  XXIX. 

Art.  30 See  Articles  of  War  XXX. 

Discipline  XVI  A  1;  D. 
Art.  32 See  Absence  II  B  2;  4  a  (1). 

Articles  of  War  XXXII;  CII  D. 

Art.  33 See  Articles  of  War  XXXII  A;  B. 

Art.  38 See  Discipline  V  D  5;  XI  A  8;  XII  A  6  c: 

9a;B2d;3i;  XIV  E  9  a  (14). 

Articles  of  War  XXXVIII. 
Art.  39 See  Articles  of  War  XXXIX . 

Discipline  XII  A  10  a. 
Art.  40 See  Articles  of  War  XL. 

Discipline  XIV  E  9  a  (12). 
Art.  42 See  Articles  OF  War XLII;  CA;  CII  D, 

Discipline  XV  F  2. 

Art.  45 See  Articles  of  War  XLV. 

Art.  46 See  Articles  of  War  XLVI. 

Art.  47 See  Articles  of  War  L  A. 

Art.  48 See  Articles  of  War  XLVIII;  CIII  C; 

F4. 

Discharge  XIII  B  1. 
Art.  50 See  Discipline  XII  B  3  i. 

Articles  of  War  L. 

Desertion  IX  I;  XII  A  1. 

Art.  51 See  Articles  of  War  LI. 

Art.  52 See  Articles  of  War  LII.    ' 

Discipline  VI  G  2. 

Art.  53 See  Discipline  VI  G  2. 

Art.  54 See  Articles  of  War  LIV. 

Discipline  XII  B  3  i;  XVII B  1  f. 
Art.  58 See  Articles  of  War  LVIII;  XCVII  D. 

Discipline  II  D  15  a;  XII  B  2  i-  XIV 
E9a(13)  (a);  (6). 
Art.  59 See  Articles  of  War  LIX;  CII  I. 

Command  V  B  2  a;  b. 

Discipline  XII  B  3  i. 

A.rt.  60 See  Articles  of  War  XVII  B;  LX;  LXII 

B;  XCVII  B;  CIII  C. 

Discharge  XXII  A;  B. 

Discipline  II  A  1  b;  II  D  16  a;  b;  V  D 
2  c;  VIII 1 1  c;  XI  A  18;  XII  A  5  b. 
Art.  61 See  Army  I  A  2  a  (2). 

Articles  of  War  LXI;  LXII  D. 

Discipline  II  D  17  a;  18  a;  19;  VD  2 
c;  H  5;  XII  A  6  b;  c;  11  a;  B  3  i; 
XIVE9a(14). 

Private  Debts  V. 


APPENDIX   IV.  1101 

Art.  62 See  Army  I  A  2  a  (2). 

Articles  of  War  XVII  B;  XXI B;  D; 
E  1;  XXII  A;  C;  XXXII  C;  LX  C; 
LXII;  XCVIIE;  CII  C. 

Discharge  XII  D  2;  XV  A  3. 

Discipline  II  D  3;  4;  6;  13  a;  18  a  to  d; 
20;  VIII  D4;  F  1;  2;  IX  L  1;  X  H  1; 
XI  A  8;  XII  A  6  c;  8  a  (3)  (a);  12  a; 
b;B3b;4b;XVF2;  XVIIBla;b. 

Private  Debts  V. 
Art.  63 See  Army  I  G  3  d  (4)  (c) . 

Articles  of  War  LXIII. 

Art.  64 See  Discipline  VIII  B. 

Art.  65 See  Articles  of  War  LXII  G  17;  18;  D; 

LXV. 

Discipline  XII  B  3  i;  XIV  E  9  a  (14). 

Art.  66 See  Articles  of  War  LXVI. 

Art.  71 See  Articles  of  War  LXXI. 

Art.  72 See  Articles  of  War  LXXII. 

Discipline  III  B;  G  1;  XVI  C. 
Art.  73 See  Articles  of  War  LXXIII. 

Discipline  III  G  1;  XVI  C. 
Art.  75 See  Articles  of  War  LXXII  A;  LXXV. 

Discipline  XV  C. 
Art.  77 See  Articles  op  War  LX  E  2;  LXXVII. 

Discipline  XV  H  3. 

Art.  78 See  Articles  of  War  LXXVIII. 

Art.  82 See  Articles  of  War  LXXXII. 

Discipline  XVI  B  1. 
Art.  83 See  Articles  of  War  XXX  A;  LXXXIII. 

Discipline  XIV  E  9  c. 
Arf.  84 See  Articles  of  War  LXII  D;  LXXXIV. 

Discipline  XV  E  1. 

Office  III  A8b(l). 
Art.  85 See  Articles  of  War  LXII  D. 

Discipline  VI  G  2;  XV  E  1. 

Office  III  A  8  b  (1). 
Art.  86 See  Articles  of  War  LXXXVI. 

Discipline  VII  C  2. 
Art.  88 See  Articles  op  War  LXXXVIII. 

Discipline  VII  C  1;  XIII  C  2. 

Art.  90 : See  Discipline  IV  C  2  a;  K;  XH  2;  XIV 

E  9  a  (6). 
Art.  91 See  Articles  op  War  XCI. 

Discipline  XI  A  17  c. 
Art.  93 See  Articles  of  War  XCIII. 

Discipline  X  A  4;  XIV  E  9  a  (16). 

Art.  96 See  Articles  of  War  XCVI. 

Art.  97 See  Articles  of  War  XCVII. 

Desertion  XCI. 

Discipline  XIV  E  9  a  (17). 

Art.  98 See  Discipline  XII  B  3  h. 

Art.  99 See  Discharge  XX  B. 

Office  IV  E  2  a. 
Art.  100 See  Articles  of  War  C. 

Discipline  XV  D  4. 
Art.  102 See  Articles  of  War  CII. 

Discipline  XII  B  1  a  (1)  (6);  XIV  K 1. 

Art.  103 See  Articles  op  War  XXX  B;  XLVIII 

F;LXE1;LXIIC6;CIII. 

Desertion  Vf  7;  7  a;  b;XD;  XX  E. 

Discipline  II D  9;  XVI  D;  XVII A  4  c. 

Retirement  I  B  1  c  (1). 
Art.  104 See  Articles  op  War  LXXII  A;  CIV. 

Discipline  IV  M;  XIV  A  1;  C;  E  3. 


1102  APPENDIXES   IV.   V.   AND  VI. 

Art.  106 See  Articles  op  War  CVI. 

Discipline  XIV  H  1  a;  4. 

Office  IV  E  1  a. 

Art.  107 See  Articles  of  War  LXXIII  A  2. 

Art.  109 See  Discipline  IV  M;  XIV  A  1;  C;  XVI 

B  1. 

Office  IV  E  1  a. 

Art.  Ill See  Articles  of  War  CXI  A. 

Art.  112 See  Articles  of  War  CXII. 

Discipline  XVI I  A  4  e. 

Art.  113 See  Discipline  IV  M;  XIII  A. 

Art.  114 See  Army  I  G  3  a  (4)  (a)  [1]. 

Articles  of  War  CXIV. 

Discipline  XIII  A. 

Art.  115 See  Articles  of  War  CXV. 

Art.  119 See  Articles  of  War  CXIX. 

Art.  121 See  Articles  of  War  CXXI. 

Discipline  XI  A  13, 
Art.  122 - See  Articles  of  War  CXXII. 

Command  V  B  4. 

Art.  124 See  Militia  VI  B  2  b. 

Art.  125. See  Articles  of  War  CXXVII  A. 

Art.  126 See  Articlesof  War  CXXVI;  CXXVII  A. 

Art.  127 See  Articles  of  War  CXXVI  A;  CXXVII. 


Appendix  V. 

KEFEEENCES  TO  TREATIES  AND  CONVENTIONS  OF  THE  UNITED 

STATES. 

China:  Art.  9.  Peace  protocol  signed  Sept. 

7,  1901,  between  China  and  the  Powers 

(S.  Doe.  No.  357,  Gist  Cong.,  pp.  2006- 

2012) See  Army. 

Cuba:  Art.  3.  Treaty  with  Cuba  of  May  28, 

1903  (33  Stat.  2248) See  War  I  C  8  c  to  d. 

Mexico:  Art.  2.  Extradition    treaty    with 

Mexico,  Dec.  11,  1861  (12  Stat.,  1200)  ..See  Extradition  II  A;  B. 


Appendix  VI. 
REFERENCES  TO  THE  ARMY  REGULATIONS,  1910  EDITION. 

Par.  51 See  Absence  I  B1  f. 

Par.  58 See  Absence  I  B1  d. 

Par,  65 See  Absence  I  B  2. 

Par.  75 See  Civil  authorities  I  B  1 ;  2. 

Par.  87 See  Retirement  I  I. 

Pars.  106  to  113 See  Absence  I  C  4  a. 

Par.  121 SeeDESERTiON  VF2a(l);7;18. 

Par.  127 SeeDESERTioNVD3;3a;b;c;4;4a;E3;4. 

Pars.  127  to  131 See  Desertion  V  E  5. 

Par.  147 See  Discharge  XI  A  2. 

Par.  156 See  Discharge  XIII  E  1. 

Par.  189 See  Discipline  III  C  1  a. 

Par.  195 See  Army  I  G  3  a  (1)  (a). 

Par.  273 See  Army  I  E  1  b. 

Par.  276 See  Army  I  E  lb. 

Par.  318 See  Government  agencies  II  J  3. 

Par.  321 See  Government  agencies  I  D  2;  3. 


APPENDIX  VI.  1103 

Par.  331 See  Government  agencies  III  B  1;  X. 

Par,  351 See  Government  agencies  I  A. 

Par.  357 See  Intoxicants  II  B. 

Pars.  493  to  498 See  Army  II  F  1. 

Par.  535 See  Contracts  XLIX. 

Par.  543 See  Contracts  XI  F. 

Par.  548 See  Contracts  XI  B. 

Par.  558 See  Contracts  XVI  F. 

Par.  575 See  Bonds  II  G;  J. 

Par.  577 See  Bonds  III  E. 

Laws  II  A  1. 

Par.  581 See  Bonds  I  M  13. 

Par.  583 See  Bonds  V  G. 

Par.  585 See  Bonds  V  K. 

Par.  589 See  Bonds  UN. 

Par.  603 See  Contracts  XV  to  XVI. 

Government  agencies  I  E. 

Par.  663 See  Contracts  L. 

Par.  665 See  Government  agencies  II  J  7. 

Public  money  II  B  5. 

Par.  690 See  Public  money  I  J, 

Par.  691 See  Public  money  I  J. 

Par.  694 See  Public  money  X  to  XI. 

Par.  742 See  Eight-hour  law  III;  V. 

Par.  799 See  Absence  I  C  4  a. 

Par .  838 See  Claim s  XI. 

Par.  866 See  Enlistment  B  3  c. 

Par.  869 See  Enlistment  I  A  9  f  (7)  (a). 

Par.  876 See  Enlistment  I  A  8b. 

Par.  937 See  Discipline  I  D  1. 

Par.  958 :...  See  Articles  of  War  CXII  Ale. 

Par.  970 See  Articles  of  War  LIX  L  2. 

Par.  977 See  Command  V  A  5. 

Par.  982 See  Discipline  XIV  E  9  g. 

Par.  986 See  Pay  and  allowances  I  A  1  c;  C  1. 

Par.  1012 See  Discipline  V  G  5. 

Par.  1013 See  Discipline  V  G  5. 

Par.  1060 See  Government  agencies  II  J  10. 

Par.  1224 See  Army  I  G  3  b  (3)  (a)  [3]. 

Par.  1241 See  Gratuity  IV. 

Par.  1281 See  Articles  of  War  LXI  B  15. 

Par.  1406 See  Words  and  phrases;     "reputable 

PERSON," 

Par.  1461 See  Approprla-Tions  XXIX. 

Par.  1495 See  Government  agencies  VI. 

Par.  1496 See  Government  agencies  VI. 

Par.  1498 See  Claims  VIII. 


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